Issue regarding the constitutionality of the statutory minimum sentence of one year imprisonment for the offence of sexual touching (151(a) CC) where the Crown proceeds by indictment. Evidence from a psychologist that accused functioned at a “social development age” of 14 or 15, which would place him into the chronological age exemption set out in s. 150.1(2) CC.

Held: Section 151(a) CC violates s. 12 of the Charter.

The one year minimum sentence is a grossly disproportionate punishment for accused persons who “have sufficient capacity to participate in a trial and to bear criminal responsibility, but who suffer from severely diminished personal responsibility for their actions”. There are no clear guidelines in Alberta regarding what kind of sexual activity is likely to be prosecuted by way of indictment and thereby create the one year minimum. Case adjourned for s. 1 Charter evidence and analysis.

A. Gill – Defence Counsel