Issue regarding constitutionality of the 1-year mandatory minimum sentence for sexual exploitation under s 153(1.1)(a) CC where Crown proceeds by indictment. 35-year old accused engaged in sexual relations with 16-year old niece (related through marriage) living with his family. Complainant had initiated the sexual relationship.

Held: s 153(1.1) (a) CC violates s 12 of the Charter

 “A sentence of one year imprisonment is not grossly disproportionate as applied to EJB in the circumstances, as a fit and proportionate sentence is between six months and one and a half years’ imprisonment. However, the mandatory minimum is grossly disproportionate as applied to a hypothetical babysitter or teacher whose only sexual contact with a young person is limited to a single instance of inappropriate touching.” In these scenarios, as set out in Cristoferi-Paolucci, 2017 ONSC 4246, a fit sentence would be 60-90 days’ jail and 1 year minimum would be cruel and unusual punishment. Section 12 violation not justified under s 1.

B. Der – Defence Counsel