R. v. D.M.

R. v. D.M.

The one-year mandatory minimum in s.153(1.1)(a) is unconstitutional and of no force and effect because, when assessed by reasonable hypotheticals grounded in common sense, the provision captures conduct for which a one-year sentence would be grossly disproportionate; however s.742.1(c) does not violate s.12 because it only removes conditional sentences without mandating custody and alternative minimal sanctions remain available; accordingly s.153(1.1)(a) was struck down and s.742.1(c) was upheld.

Citation
2021 BCSC 379
Parties
Crown: Regina; Accused: D.M.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
12 February 2021
Procedural Posture
Criminal / Sentencing Hearing and Constitutional Challenge Under S.12 of the Charter
Outcome
Court declared s.153(1.1)(a) of the Criminal Code of no force and effect under s.52 of the Constitution Act; upheld constitutionality of s.742.1(c); entered a 90-day intermittent custodial sentence (credit 1.5 days) plus probation and ancillary orders.
Legal Topics
Sexual Exploitation, Mandatory Minimum Sentencing, Cruel and Unusual Punishment, Conditional Sentence Availability, Sentencing Principles, Charter S.12
Source Language
English
Criminal Law Constitutional Law Sexual Exploitation Mandatory Minimum Sentencing Cruel and Unusual Punishment Conditional Sentence Availability Sentencing Principles Charter S.12

Case Brief

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Parties

Regina

Crown

D.M.

Accused

Procedural Posture

Criminal / Sentencing Hearing and Constitutional Challenge Under S.12 of the Charter

Legal Issues

  1. 1 Whether the one-year mandatory minimum in s.153(1.1)(a) of the Criminal Code violates s.12 of the Charter as grossly disproportionate
  2. 2 Whether s.742.1(c) of the Criminal Code excluding conditional sentences for indictable offences with maximum 14 years violates s.12
  3. 3 Appropriate sentence for conviction under s.153(1)(a) given aggravating and mitigating factors

Ratio Decidendi

The one-year mandatory minimum in s.153(1.1)(a) is unconstitutional and of no force and effect because, when assessed by reasonable hypotheticals grounded in common sense, the provision captures conduct for which a one-year sentence would be grossly disproportionate; however s.742.1(c) does not violate s.12 because it only removes conditional sentences without mandating custody and alternative minimal sanctions remain available; accordingly s.153(1.1)(a) was struck down and s.742.1(c) was upheld.

Court Disposition

Court declared s.153(1.1)(a) of the Criminal Code of no force and effect under s.52 of the Constitution Act; upheld constitutionality of s.742.1(c); entered a 90-day intermittent custodial sentence (credit 1.5 days) plus probation and ancillary orders.

Orders

  • Declaration that s.153(1.1)(a) of the Criminal Code is inconsistent with the Charter and of no force and effect pursuant to s.52 of the Constitution Act
  • Conditional stay entered on the s.271 sexual assault conviction earlier in proceedings pursuant to Kienapple principles (as ordered orally)