R. v. Lonegren

R. v. Lonegren

Court held that the conduct (brief, non‑penetrative touching of a sleeping nine‑year‑old’s buttocks under clothing) did not amount to violence within s.109(1) and declined to impose a mandatory firearms prohibition; the 45‑day minimum in s.151 when applied by indictment was arbitrary contrary to Charter s.9 because Crown control of mode of proceeding can expose accused to a higher minimum for reasons unrelated to sentencing; s.151 did not, however, violate s.12 or s.7 on the facts; DNA order will be made and SOIRA registration for 20 years ordered under s.490.013(2).

Citation
2009 BCSC 1678
Parties
Crown: Regina; Accused: Kirk Allvar Lonegren
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
13 November 2009
Procedural Posture
Criminal Sentencing / Sentencing Hearing and Interlocutory Applications (firearms Prohibition S.109, DNA Databank S.487.051(2), SOIRA S.490.012, Charter Challenges)
Legal Topics
Sexual Interference (s.151), Sentencing and Minimum Sentences, Firearms Prohibition (s.109), Sex Offender Information Registration Act (soira), DNA Databank Orders, Charter Challenges (ss.7, 9, 12), Prosecutorial Discretion
Source Language
English
Criminal Law Constitutional Law Administrative Law Sexual Interference (s.151) Sentencing and Minimum Sentences Firearms Prohibition (s.109) Sex Offender Information Registration Act (soira) DNA Databank Orders +2 more

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Parties

Regina

Crown

Kirk Allvar Lonegren

Accused

Procedural Posture

Criminal Sentencing / Sentencing Hearing and Interlocutory Applications (firearms Prohibition S.109, DNA Databank S.487.051(2), SOIRA S.490.012, Charter Challenges)

Legal Issues

  1. 1 Whether the convicted offence of sexual interference falls within s.109(1) as an offence in the commission of which violence against the person was used, threatened or attempted
  2. 2 Whether the mandatory minimum sentencing scheme in s.151 (45 days for indictable prosecutions) violates Charter s.12 (cruel and unusual punishment)
  3. 3 Whether s.151 violates Charter s.7 and s.9 (principles of fundamental justice and arbitrary detention) because Crown control of mode of proceeding affects minimum exposure

Ratio Decidendi

Court held that the conduct (brief, non‑penetrative touching of a sleeping nine‑year‑old’s buttocks under clothing) did not amount to violence within s.109(1) and declined to impose a mandatory firearms prohibition; the 45‑day minimum in s.151 when applied by indictment was arbitrary contrary to Charter s.9 because Crown control of mode of proceeding can expose accused to a higher minimum for reasons unrelated to sentencing; s.151 did not, however, violate s.12 or s.7 on the facts; DNA order will be made and SOIRA registration for 20 years ordered under s.490.013(2).