R. v. S.J.P., 2016 NSPC 50
| Judge | Ross, P.C.J. |
| Court | Provincial Court of Nova Scotia (Canada) |
| Case Date | July 23, 2015 |
| Jurisdiction | Nova Scotia |
| Citations | 2016 NSPC 50;(2016), 377 N.S.R.(2d) 32 (PC) |
R. v. S.J.P. (2016), 377 N.S.R.(2d) 32 (PC);
1187 A.P.R. 32
MLB headnote and full text
Temp. Cite: [2016] N.S.R.(2d) TBEd. SE.022
The Queen v. S.J.P.
(2788031; 2788032; 2016 NSPC 50)
Indexed As: R. v. S.J.P.
Nova Scotia Provincial Court
Ross, P.C.J.
July 21, 2016.
Summary:
The 41 year old aboriginal accused was babysitting his two year old daughter while the mother was at the hospital. He drank 7-11 beer and fell asleep on the couch. When the daughter tried to wake the accused, the accused, still drowsy, grabbed her while in a state of arousal and briefly "dry-humped" her while he was clothed and she was in a diaper. The accused was convicted of sexual interference with a young person (Criminal Code, s. 151(a)). As the Crown proceeded by indictment, the mandatory minimum sentence was one year's imprisonment. The accused argued that the mandatory minimum sentence, as it applied to him, constituted cruel and unusual punishment contrary to s. 12 of the Charter.
The Nova Scotia Provincial Court held that the appropriate sentencing range was 3-5 months' imprisonment and that an appropriate sentence would be, but for the mandatory minimum sentence, five months' imprisonment. An appropriate sentence which was less than half of the mandatory minimum sentence was grossly disproportionate and constituted cruel and unusual punishment. The appropriate relief under s. 24(1) was to not apply the mandatory minimum sentence, but sentence the accused to five months' imprisonment (upper limit of the sentencing range).
Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.
Civil Rights - Topic 3829
Cruel and unusual treatment or punishment - What constitutes - Mandatory minimum and consecutive sentences - The 41 year old aboriginal accused was babysitting his two year old daughter while the mother was at the hospital - He drank 7-11 beer and fell asleep on the couch - When the daughter tried to wake the accused, the accused, still drowsy, grabbed her while in a state of arousal and briefly "dry-humped" her while he was clothed and she was in a diaper - The accused was convicted of sexual interference with a young person (Criminal Code, s. 151(a)) - As the Crown proceeded by indictment, the mandatory minimum sentence was one year's imprisonment - The accused argued that the mandatory minimum sentence, as it applied to him, constituted cruel and unusual punishment contrary to s. 12 of the Charter - The Nova Scotia Provincial Court held that the appropriate sentencing range was 3-5 months' imprisonment and that an appropriate sentence would be, but for the mandatory minimum sentence, five months' imprisonment - An appropriate sentence which was less than half of the mandatory minimum sentence was grossly disproportionate and constituted cruel and unusual punishment - The appropriate relief under s. 24(1) was to not apply the mandatory minimum sentence to the accused, but sentence him to five months' imprisonment (upper limit of the sentencing range).
Civil Rights - Topic 8373
Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - [See Civil Rights - Topic 3829 ].
Criminal Law - Topic 5846.1
Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See Civil Rights - Topic 3829 ].
Criminal Law - Topic 5848.9
Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - [See Civil Rights - Topic 3829 ].
Criminal Law - Topic 5950
Sentence - Sexual interference with young person - [See Civil Rights - Topic 3829 ].
Counsel:
Darlene MacRury, for the defence;
Darcy MacPherson, for the Crown.
This matter was heard on July 23, 2015, et seq., at Sydney, N.S., before Ross, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on July 21, 2016.
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