March 30, 2016 - 1:00 PM
VERNON - A Supreme Court Judge says a Vernon man’s charter rights were violated by legislation that would put him in jail for at least a year as punishment for sexually assaulting a child.
The 29-year-old man’s constitutional challenge against Canada’s mandatory minimum sentence of one year in jail for the crime of sexually assaulting a person under the age of 16 was heard in Vernon Supreme Court, and Justice Alison Beames gave her decision today, March 30.
The accused, who cannot be named to protect the identity of the victim, was 26 years old at the time of the offence, committed in 2013. The victim was six years old. While not blood related, the accused considered the victim his niece, and the victim thought of him as her uncle.
The man pleaded guilty to the assault, which occurred while he was babysitting the victim. She fell asleep on the couch while watching a movie, and awoke to him touching her sexually. He told her not to tell anyone, Beames said.
The accused was diagnosed with autism spectrum disorder and lives with his mother. He has a limited work history, has never dated and has no criminal record. He spends much of his time playing video games and likes Teenage Mutant Ninja Turtles, My Little Pony, and pornographic anime cartoons, Beames said. A psychologist found no indication he suffers from pedophilia, but said he would benefit from sexual offender treatment.
The criminal code calls for a mandatory minimum jail sentence of one year for such an offence, but the defence argued the legislation violated the accused’s charter right not to be subjected to cruel and unusual punishment.
Judges consider a two-part test in determining whether a person’s charter rights are being violated. First, they look at whether the mandatory minimum sentence imposes cruel and unusual punishment on the individual before the court. In this particular case, Beames found the mandatory minimum was not grossly disproportionate to the offence. However, in the second part of the test, which instructs judges to look beyond the specific individual and consider what conduct or type of person might be captured by the law, and whether it would result in cruel and unusual punishment on other offenders, Beames found the mandatory minimum was in fact a violation of the Charter.
The accused will be sentenced at a future date pending further legal arguments.
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News from © InfoTel News Ltd, 2016