Crown appeal from 2 years less 1 day sentence plus probation for sexual interference with a minor. Issue being the application of the 3 year starting point established in Hajar, 2016 ABCA 222.
Held: Appeal dismissed.
As per Berger, JA: “Hajar, in my opinion was wrongly decided … The majority judgment rests upon a precarious legal foundation and erroneous assertions and propositions which, in the result, fail to satisfy the test for a rationally designed starting point … A judicially imposed starting point in this jurisdiction constrains the ‘wide latitude’ and ‘broad discretion’ accorded to sentencing judges by the Supreme Court of Canada, stifles that sentencing discretion and results in a chilling effect on the ability of sentencing judges to craft individualized dispositions”.
O’Ferrall, JA concurring in result: ” … while starting points may be helpful to sentencing judges, they are not binding in the sense that it is not an error … to arrive at a fit sentence without regard to a prescribed starting point”.
Rowbotham, JA dissented, finding that a fit sentence was 3 years jail in accord with the Hajar starting point.
J. Ouellette – Defence Counsel