R. v. B.J.T., 2019 ONCA 694
SEXUAL INTERFERENCE - MANDATORY MINIMUMS - SECTION 12
Background
BJT is the father of the complainant. He was convicted of two counts of sexual interference and two counts of sexual assault in relation to shaving his daughter’s pubic hair at her request in when she was 13 (“2011 Incident”) and 15 years old (“2013 incident”). The sexual assault convictions were stayed pursuant to Kienapple.
Trial judge struck down the mandatory minimum for sexual interference (1 year) for violating s. 12 of the Charter (not saved by s. 1). Trial judge imposed a sentence of one day for the first count, concurrent to a nine months sentence for the second count.
Issues on Appeal
A. Conviction Appeals
1. Did the trial judge err by finding that the shavings were done for a sexual purpose and therefore constituted sexual interference?
No. Sexual interference is a specific intent offence. It requires that the accused specifically intend the touching (direct or indirect), of the body of a person under 16 years old, for a sexual purpose. There may be other reasons for the touching, but if the accused also had a sexual purpose, the offence is made out.
BJT’s comments during the 2013 incident, about the size of his daughter’s clitoris and inserting his finger into her vagne to retrieve a pubic hair connote a sexual purpose. While the trial judge did not expressly refer to these findings in the reasons for conviction, the trial judge did outline them in his reasons for sentence. An appellate court is entitled to assess both the reasons for conviction and sentence in understanding the basis for conviction.
Regarding the 2011 incident, the trial judge repeatedly asserted that objectively speaking, BJT shaving his daughter’s pubic hair without seeking out alternatives amounted to a sexual purpose. This was an error. The standard in sexual interference is subjective: it requires a finding that the accused specifically, subjectively touched the complainant for a sexual purpose. Feldman JA, writing for the court, allowed the appeal in relation to the 2011 count and set aside the conviction, and ordered a new trial.
2. Did the trial judge err in finding that the shavings constituted sexual assault?
No. The shavings amounted to sexual assault if “viewed in the light of all the circumstances, the sexual context of the assault is visibile to a reasonable observer?” The circumstances to be considered include: the part of the body touched, the nature of the contact, the situation in which it occurred, and the words and gestures accompanying the act. Unlike sexual interference, sexual assault does not require a sexual purpose or motive but it is a factor to consider in determining whether the conduct was sexual (See R v Marshall, 2017 ONCA 801).
In relation to the 2013 incident, the trial judge appropriately considered the part of the body that was touched and BJT knowing it was inappropriate in assessing the sexual nature of the assault. Although he didn’t, the trial judge was free to consider BJT inserting his finger into his daughter’s vagina and his comments on her clitoris in assessing the circumstances.
In relation to the 2011 incident, a number of findings identified by the trial judge support the conclusion that the assault was of a sexual nature: BJT committed the assault when his wife was not home, he told his daughter not to tell anyone and the fact that BJT knew he would have to touch his daughter’s vagina to shave it.
B. Sentence Appeals
1. Did the trial judge err in holding that the mandatory minimum sentence for sexual interference is unconstitutional?
R v Nur, 2015 SCC 15 sets out the 2-step test to determine whether a mandatory minimum sentence is grossly disproportionate to the appropriate punishment, therefore violating section 12 of the Charter:
The court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in sections 718-718.2 of the Criminal Code; and
The court must ask whether the mandatory minimum sentence requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the provision is inconsistent with section 12 and will fall unless justified under section 1. The court is to determine the effect of the mandatory minimum on the offender in the present circumstances and on a hypothetical offender in reasonably foreseeable circumstances.
Feldman JA, writing for the court, agrees with the trial judge’s finding that the mandatory minimum for sexual interference, section 151 of the Criminal Code, is unconstitutional violating section 12 (and is not saved by section 1). The offence can be committed in a variety of ways that make the mandatory minimum ripe for gross disproportionality for some offenders thus constituting cruel and unusual punishment. The appropriate remedy is to strike down the mandatory minimum in s. 151(a).
Holding
The ONCA allows the appeal against conviction for sexual interference for the 2011 incident, sets aside the conviction and orders a new trial; dismisses the appeal against other convictions; and, lifts the stay of conviction for sexual assault for the 2011 incident. ONCA dismisses appeals against sentence.
Read the full decision here.