COURT OF APPEAL
FOR BRITISH COLUMBIA

Citation:

R. v.
  Scofield,

2019 BCCA 3

Date: 20190111

Docket: CA45220

Between:

Regina

Appellant

And

Dylan William Scofield

Respondent

Restriction on Publication: A
publication ban has been mandatorily imposed under
s. 486(4.1) of the
Criminal Code
restricting the publication,
broadcasting or
transmission in any way of evidence that could identify a complainant or
witness,
referred to in this judgment by the initials L.N. and M.L.
This publication ban applies
indefinitely unless otherwise ordered.

Section 16(4)
of the
Sex Offender Information and Registration Act
: This section
provides that no person shall disclose any information that is collected
pursuant
to an order under
SOIRA
or the fact that information relating to a
person
is collected under
SOIRA
.

Before:

The
  Honourable Mr. Justice Harris

The
  Honourable Mr. Justice Savage

The
  Honourable Madam Justice Fisher

On appeal from:  Orders of the Supreme Court of British
Columbia, dated
January 23, 2018 (
R. v. Scofield
, 2018 BCSC 91, Vernon
Registry 48854) and
March 16, 2018 (
R. v. Scofield
, 2018 BCSC 419, Vernon Registry
48854).

Counsel for the Appellant:

L.A. Ruzicka

Counsel for the Respondent:

J.R. Avis

Place and
  Date of Hearing:

Vancouver, British Columbia

September 24, 2018

Place and
  Date of Judgment:

Vancouver, British Columbia

January 11, 2019

Written Reasons by:

The Honourable Mr. Justice Harris

Concurred in by:

The Honourable Mr. Justice Savage

Concurring Reasons (Dissenting in part) by:

The
  Honourable
Madam Justice
  Fisher
(Page 33, para. 90)

Summary:

Crown appeal from imposition of conditional sentence of 6 months
after guilty plea to two counts of sexual interference and declaration that
mandatory minimum of one‑year imprisonment is unconstitutional. Held: appeal
allowed to the extent that a conditional sentence of one year is substituted
(Fisher J.A., dissenting in part would have imposed a 16‑month
conditional sentence). Per the court, the mandatory minimum is unconstitutional.
The judge erred in treating certain factors as mitigating. Per Harris and
Savage JJ.A., deferring to the judges findings about moral culpability
based in Mr. Scofields cognitive disabilities, a fit sentence would be a
12‑month CSO. Per Fisher J.A., the judge over emphasized Mr. Scofields
disability in light of the seriousness of the offence and would have
substituted a 16‑month CSO.

Reasons for Judgment of
the Honourable Mr. Justice Harris:

Overview

[1]

The Crown appeals a
six‑month conditional sentence order (CSO) imposed on Mr. Scofield
after he pleaded guilty to two counts of sexual interference contrary to
s. 151 of the
Criminal Code
, R.S.C. 1985, c. C‑46 [
Code
].
Section 151(a) of the
Code
provides for a one‑year mandatory
minimum sentence where the Crown proceeds by indictment, as it did here.

[2]

This appeal was
heard at the same time as the appeal of
R. v. Horswill
, indexed
as 2019 BCCA 2, because both cases raised the issue of the
constitutionality of the mandatory minimum sentence. These reasons analyze that
common issue. The reasons in
Horswill
should be read in conjunction with
these reasons. I am grateful to counsel in
Horswill
for their
submissions on the common issue.

[3]

Mr. Scofield
challenged the mandatory minimum sentence in s. 151(a). He sought an order
declaring that the mandatory minimum infringes s. 12 of the
Canadian
Charter of Rights and Freedoms
[
Charter
], is not saved by s. 1
of the
Charter,
and is of no force or effect pursuant to s. 52(1)
of the
Constitution Act, 1982.

[4]

The judge concluded
a six‑month CSO was a fit and proportionate sentence meeting the
objectives of the
Code
after taking into account the gravity of the
offence and Mr. Scofields personal circumstances. He then concluded:

[128]
the one‑year mandatory minimum sentence mandated by s. 151(a)
requires me to impose a sentence that is not only excessive or disproportionate
to what Mr. Scofields sentence should be, but grossly disproportionate to
what is fit and proportionate. It is therefore inconsistent with and violates
s. 12 of the
Charter
as amounting to cruel and unusual punishment
.
While I have not addressed the reasonable hypothetical case under the
s. 12 analysis, I find that the facts of this offence constitute a strong
reasonable hypothetical for why this mandatory minimum sentence can be
grossly disproportionate when applied to a narrow range of offenders.

[5]

The Crown submits
the judge erred in declaring the mandatory minimum sentence unconstitutional. Specifically,
the judge erred in his application of the sentencing principles in two ways.
First, he treated the absence of certain aggravating factors as mitigating
factors. Second, he erred in fact and law when assessing Mr. Scofields cognitive
deficits as they relate to his moral culpability. Both errors are alleged to
have materially affected the sentence. As a result, this Court is not required
to defer to the judges assessment of a fit sentence and must determine a fit
sentence itself. The Crown contends the judge imposed a demonstrably unfit
sentence. In light of plea arrangements, the Crown submits a sentence of one‑year
imprisonment should be imposed.

The Mandatory Minimum Sentence
Regime for S. 151 of the
Code

[6]

The framework for
analyzing whether mandatory minimum sentences are unconstitutional was conveniently
summarized by Madam Justice Bennett in
R. v. Swaby
, 2018 BCCA
416; a case declaring the mandatory minimum sentence of 90 days imprisonment
for possession of child pornography unconstitutional:

[55]      Since
the introduction of the
Charter
, mandatory minimum sentences imposed by
Parliament have been subject to the scrutiny of s. 12, which provides:

Everyone
has the right not to be subjected to any cruel and unusual treatment or punishment.

[56]      In
R. v. Smith
,
[1987] 1 S.C.R. 1045, the Supreme Court of Canada, for the first time,
struck down a mandatory minimum sentence on the basis that it violated s. 12.
While the majority found that the mandatory sentence of seven years imprisonment
for importing drugs would not be grossly disproportionate in all cases, it
held that such a sentence could constitute cruel and unusual punishment in a
reasonable hypothetical factual matrix (at 1077‑78).

[57]      Proportionality
is an essential ingredient of a just sentence (
R. v. Nur
, 2015
SCC 15 at para. 43). In
Smith
, the majority discussed the meaning
of gross disproportionality at 1072‑73:

The
limitation at issue here is s. 12 of the
Charter
. In my view, the
protection afforded by s. 12 governs the quality of the punishment and is
concerned with the effect that the punishment may have on the person on whom it
is imposed. I would agree with Laskin C.J. in
Miller and Cockriell
,
[[1977] 2 S.C.R. 680], where he defined the phrase cruel and unusual as
a compendious expression of a norm. The criterion which must be applied in
order to determine whether a punishment is cruel and unusual within the meaning
of s. 12 of the
Charter
is, to use the words of Laskin C.J. in
Miller and Cockriell
,
supra
, at p. 688, whether the
punishment prescribed is so excessive as to outrage standards of decency. In
other words, though the state may impose punishment, the effect of that
punishment must not be grossly disproportionate to what would have been
appropriate.

Section 12
will only be infringed where the sentence is so unfit having regard to the
offence and the offender as to be grossly disproportionate.

In
assessing whether a sentence is grossly disproportionate, the court must first
consider the gravity of the offence, the personal characteristics of the
offender and the particular circumstances of the case in order to determine
what range of sentences would have been appropriate to punish, rehabilitate or
deter this particular offender or to protect the public from this particular
offender. The other purposes which may be pursued by the imposition of
punishment, in particular the deterrence of other potential offenders, are thus
not relevant at this stage of the inquiry. This does not mean that the judge or
the legislator can no longer consider general deterrence or other penological
purposes that go beyond the particular offender in determining a sentence, but
only that the resulting sentence must not be grossly disproportionate to what
the offender deserves. If a grossly disproportionate sentence is prescribed by
law, then the purpose which it seeks to attain will fall to be assessed under
s. 1. Section 12 ensures that individual offenders receive
punishments that are appropriate, or at least not grossly disproportionate, to
their particular circumstances, while s. 1 permits this right to be
overridden to achieve some important societal objective.

[58]      The
Supreme Court recently examined mandatory minimums in
Nur
and
R. v. Lloyd
,
2016 SCC 13 [
Lloyd
SCC]. In
Nur
, the Court affirmed the
Smith
approach to gross disproportionality and identified the high bar for what
constitutes cruel and unusual punishment under s. 12 of the
Charter
.
The Court elaborated at para. 39:

[39]      This
Court has set a high bar for what constitutes cruel and unusualpunishment
under s. 12 of the
Charter
. A sentence attacked on this ground must
be grossly disproportionate to the punishment that is appropriate, having
regard to the nature of the offence and the circumstances of the offender:
R. v. Smith
,
[1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he then was)
explained at p. 1072 that the test of gross disproportionality is aimed
at punishments that are more than merely excessive. He added, [w]e should be
careful not to stigmatize every disproportionate or excessive sentence as being
a constitutional violation. A prescribed sentence may be grossly
disproportionate as applied to the offender before the court or because it
would have a grossly disproportionate impact on others, rendering the law
unconstitutional.

[62]      In
Nur
, the majority set out the analytical process to be followed when a
mandatory minimum sentence is challenged. First, the court must determine what
constitutes a proportionate sentence for the offence based on the objectives
and principles of sentencing in the
Code
(para. 46). Second, it
must decide, bearing the proportionate sentence in mind, whether applying the
mandatory minimum would result in a grossly disproportionate sentence for the
offender before the court (para. 46). Third, if the sentence is not
grossly disproportionate for that offender, the court must then consider
whether any reasonably foreseeable applications of the provision will result
in grossly disproportionate sentences for other offenders (para. 77). If
the answer to either of the latter two questions is yes, then the mandatory
minimum sentence is inconsistent with s. 12 and will fall unless
justified under s. 1 of the
Charter
 (paras. 46, 105‑106).

[7]

Section 151
of the
Code
, which I will refer to as sexual interference,

is a
hybrid offence: the Crown may elect to proceed by way of indictment or summary
conviction. That section reads:

151 Every person who, for a sexual purpose, touches,
directly or indirectly, with a part of the body or with an object, any part of
the body of a person under the age of 16 years

(a) is guilty of an indictable
offence and is liable to imprisonment for a term of not more than 14 years
and to a minimum punishment of imprisonment for a term of one year; or

(b) is
guilty of an offence punishable on summary conviction and is liable to
imprisonment for a term of not more than two years less a day and to a minimum
punishment of imprisonment for a term of 90 days.

[8]

Section 151.1(1)
of the
Code
establishes that a person under the age of 16 years
cannot legally consent. The section provides that
de facto
consent
is not a defence to sexual interference:

150.1

(1)
Subject
to subsections (2) to (2.2), when an accused is charged with an offence under
section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is
charged with an offence under section 271, 272 or 273 in respect of a
complainant under the age of 16 years, it is not a defence that the complainant
consented to the activity that forms the subject-matter of the charge.

[9]

However, the
Code
provides for a number of exceptions. For example, consent is a defence to
sexual interference when the accused is less than five years older than a 14-
or 15‑year‑old complainant. This is known as the close-in-age
exception. The section reads:

150.1 (2.1)
If an accused is charged with an offence under
section 151 or 152, subsection 173(2) or section 271 in respect
of a complainant who is 14 years of age or more but under the age of 16 years,
it is a defence that the complainant consented to the activity that forms the
subject-matter of the charge if the accused

(a)
is
less than five years older than the complainant; and

(b)
is
not in a position of trust or authority towards the complainant, is not a
person with whom the complainant is in a relationship of dependency and is not
in a relationship with the complainant that is exploitative of the complainant.

[10]

A mandatory minimum
sentence for sexual interference was first introduced late in 2005. Between
November 1, 2005, and August 8, 2012, the mandatory minimum sentence
was 45 days for an indictable offence and 14 days for a summary
conviction offence. The section was amended in 2012 and the mandatory minimum
sentence is now one year for an indictable offence and 90 days for a
summary offence. The age of consent has also been amended, increasing from 14
to 16 years. Since July 17, 2015, the maximum term of imprisonment increased
to 14 years. The close-in-age exception was first introduced in early 2003
with a two‑year age exception, which was amended to five years in 2008.

[11]

The one‑year mandatory
minimum sentence in s. 151 has been declared constitutional twice in B.C.:
R. v. E.M.Q.
, 2015 BCSC 201, and
R. v. [M.S.H.]
,
2017 BCSC 35 (unreported).

[12]

The mandatory
minimum has been declared unconstitutional in some other provinces: see e.g.,
R. v. M.L.
,
2016 ONSC 7082 (also indexed as
R. v. Laviolette
);
R. v. B.J.T
.,
2016 ONSC 6616 (Crown appeal pending; heard September 21, 2018);
R. v. S.J.P.
,
2016 NSPC 50;
R. v. Hood
, 2018 NSCA 18, affg 2016 NSPC 78;
R. v. J.E.D.
,
2018 MBCA 123, affg 2017 MBPC 33;
Caron Barrette c. R.
, 2018 QCCA
516; and
R. v. Ford
, 2017 ABQB 322 (breach ruling), 2017 ABQB
527 (s. 1 ruling) (Crown appeal pending). The Alberta Court of Appeal
recently upheld the constitutionality of the one‑year mandatory minimum
sentence for the related offence of sexual exploitation in s. 153 of the
Code
:
R. v. E.J.B.
, 2018 ABCA 239. This Court and the Ontario Court
of Appeal recently found the mandatory minimum sentence for possession of child
pornography infringed s. 12:
Swaby
;
R. v. John
,
2018 ONCA 702, revg in part 2017 ONSC 810.

Summary of the Offences

[13]

Mr. Scofield
was 22 years old at the time of the offences. He is significantly cognitively
impaired.

[14]

Mr. Scofield
was charged on a six‑count indictment involving two 15‑year‑old
girls, L.N. and M.L.: one count each under s. 151 (sexual interference),
s. 152 (invitation to sexual touching), and s. 271 (sexual assault)
of the
Code
. After the judge ruled his videotaped statement to the RCMP
voluntary, Mr. Scofield pleaded guilty to two counts of sexual
interference. As part of the plea arrangement, the Crown agreed not to seek a
sentence longer than the one‑year mandatory minimum.

[15]

The offences
occurred between June and October 2013.

[16]

The Crown and Mr. Scofield
entered into an agreed statement of facts for sentencing. The relevant
admissions are:

a.

L.N.
was born January 25, 1998, and was 15 years of age from June to
October 2013.

b.

M.L.
was born March 29, 1998, and was 15 years of age from June to October
2013.

c.

Mr. Scofield
was born June 11, 1991, and during the time of these offences was just
turning 22 years of age.

d.

The
difference in ages between Mr. Scofield and the two complainants was six
years.

e.

Mr. Scofield
was first introduced to L.N. through a Grade 9 school friend and Facebook
contacts. The two messaged through Facebook. L.N. met him for the first time at
her school during recess break in late May 2013.

f.

Mr. Scofield
had a car and the two of them went for a drive; L.N. told him at that time she
was 15 years old.

g.

Over
the next two weeks and into June 2013, Mr. Scofield picked her up at
school in his car and they drove around. Mr. Scofield inserted his hand
into L.N.s pants under her underwear and rubbed her clitoris. L.N. performed
fellatio on him. This was L.N.s first sexual experience.

h.

At
the end of June 2013, Mr. Scofield drove L.N. home in the early hours of the
morning, and L.N. invited him into her bedroom where they had unprotected
vaginal intercourse.

i.

L.N.
was fearful that she might be pregnant and broke off her relationship with Mr. Scofield.

j.

Mr. Scofield
next contacted L.N. on October 23, 2013. He asked her to hang out with
him. L.N. agreed. They drove to a beach where they engaged in oral sex and
unprotected vaginal intercourse.

k.

Mr. Scofield
engaged in sexual activities with L.N. four or five times during this period.
He then broke up with her. L.N. texted him stating that she had told her mother
about the relationship and that her mother had gone to the police.

l.

L.N.
attended at [a hospital] on October 28, 2013, and a sexual assault
examination was conducted. There were no injuries noted during the physical
examination.

m.

Mr. Scofield
made contact with M.L. through an Internet relationship program called
MeetMe. Mr. Scofield and M.L. texted each other in May 2013, but didnt
meet each other until October 2013, at a Tim Hortons. They went for a drive in Mr. Scofields
car to a local lookout. M.L. told Mr. Scofield that she was 15 years
old and he told her that he was 23 years of age.

n.

They
next went to Mr. Scofields parents home and into his basement bedroom.

o.

M.L.
performed fellatio on Mr. Scofield and he ejaculated into her mouth.

p.

The
two met the following morning  where M.L. introduced Mr. Scofield to her
mother.

q.

Later
that day M.L. and her mother got into an argument, and M.L. texted Mr. Scofield
asking him to pick her up. Mr. Scofield complied.

r.

They
drove to a lookout where they had sexual intercourse in Mr. Scofields
car.

s.

A
few days later, Mr. Scofield dropped by M.L.s house where they engaged in
unprotected vaginal intercourse on the couch.

t.

M.L.
later texted Mr. Scofield asking if he wished to continue the
relationship, to which he replied No.

u.

Mr. Scofield deleted his text
messages every night to ensure his parents wouldnt find out about his
relationships with L.N. and M.L.

Reasons for Sentence

[17]

The reasons for
sentence are indexed as 2018 BCSC 91 (constitutional declaration and sentence),
and 2018 BCSC 419 (supplementary reasons).

[18]

The judge outlined
the aggravating and mitigating factors as follows:

[79]      The
aggravating factors are that:

a.   the incidents involved two females
under the age of 16. This is a statutorily aggravating factor;

b.   Mr. Scofields involvement
with L.N. and M.L. were not isolated acts or moments of loss of control as a
result of impulsivity;

c.   Mr. Scofield was aware that
L.N. and M.L. were each 15 years old and in Grade 9;

d.   Mr. Scofield had unprotected
vaginal intercourse with both L.N. and M.L.;

e.   Mr. Scofield admits to
engaging in sexual activities four to five times with L.N. and on at least two
occasions with M.L.; and

f.    the offences continue to have a
significant emotional impact on L.N.

[80]      The
mitigating factors are that:

a.   Mr. Scofield entered guilty
pleas on counts 1 and 4 of the indictment on the third day of trial
which is an indication of some acceptance of responsibility;

b.   the two young complainants were
spared the necessity of testifying at trial which would no doubt have been a
difficult experience for them;

c.   Mr. Scofield has no criminal
record;

d.   Mr. Scofield has a supportive
mother and continues to live in a stable environment in a suite in his mothers
home;

e.   Mr. Scofield has a severely
diminished level of cognitive and executive decision-making abilities. He has
an IQ of 59;

f.    Mr. Scofield has been
assessed as low to moderate risk for reoffending without ongoing support and
supervision;

g.   Mr. Scofield exhibited no
predatory behaviour and was not in a position of trust or authority over either
L.N. or M.L.; and

h.   there
is no evidence before me of deception, coercion, manipulation, threats, or
violence on the part of Mr. Scofield towards either complainant and each
relationship appeared to be one of willing participants.

[19]

The parties agree
the judge identified the correct principles of sentencing and the proper analytical
framework to assess the constitutionality of s. 151(a). The judge
recognized:

[56]      The
primary objectives of sentencing are deterrence and denunciation, in particular
when the offences involve harm to children. This is both recognized under the
Code
(s. 718.01) and by the Supreme Court of Canada which recently confirmed that
sexual crimes are disproportionately committed against vulnerable populations,
particularly against youth:
R. v. George
, 2017 SCC 38 at para. 2.
It is important that sentences serve as a deterrent to the offender subject to
the overriding principle that the sentence must be proportionate to both the
gravity of the offence and the degree of responsibility or moral
blameworthiness of the offender.

[57]      Section 718.01
of the
Code
requires me to give primary consideration to the objectives
of denunciation and deterrence when sentencing for an offence involving abuse
of a person under the age of 18 years.

[58]      Imposing
a proportionate sentence is a highly individualized exercise. Considerations
include the objective of denunciation, promoting justice for victims, ensuring
public confidence in the justice system, but I must also ensure it does not
exceed what is appropriate in the circumstances. In other words, the sentence
must be one that the offender deserves.

[59]      When
the Crown proceeds by way of indictment, as it has here, an offence under
s. 151 of the
Code
carries a maximum term of imprisonment of 14
years and a mandatory minimum term of imprisonment of one year, though at the time
these offences were committed, the maximum term of imprisonment was 10 years
(R.S. 2012, c. 1, s. 11).

[60]      As
the Court stated at para. 44 of
R. v. Nur
, 2015 SCC 15:

[44]      Mandatory
minimum sentences, by their very nature, have the potential to depart from the
principle of proportionality in sentencing. They emphasize denunciation,
general deterrence and retribution at the expense of what is a fit sentence for
the gravity of the offence, the blameworthiness of the offender, and the harm
caused by the crime. They function as a blunt instrument that may deprive
courts of the ability to tailor proportionate sentences at the lower end of a
sentencing range. They may, in extreme cases, impose unjust sentences, because
they shift the focus from the offender during the sentencing process in a way
that violates the principle of proportionality. They modify the general process
of sentencing which relies on the review of all relevant factors in order to
reach a proportionate result. They affect the outcome of the sentence by
changing the normal judicial process of sentencing.

[20]

The judge emphasized
the seriousness of the offences and that Mr. Scofields conduct caused
significant harm to each of the victims. Indeed, L.N. submitted victim impact
statements attesting to her ongoing mental and physical distress from Mr. Scofields
conduct.

[21]

The judge was also
alive to the purpose underlying these offences; namely, the pressing need to
protect vulnerable youth from sexual exploitation and victimization by older
persons. Accordingly, his analysis started by acknowledging that he was
required to give primary consideration to denunciation and deterrence.

[22]

Applying these sentencing
principles to his analysis of case law, the judge concluded that the sentencing
range for sexual interference is imprisonment between 9 and 18 months: at paras. 91,
95, 113. He accepted the possibility that even first-time offenders with good
prospects of rehabilitation might attract a sentence of three years for this
very serious offence: at paras. 83, 86, 88 referring to
R. v. G.R.L.
,
2016 BCSC 293;
R. v. Florence
, 2010 BCSC 1010;
R. v. Aimee
,
2010 BCSC 1463.

[23]

However, the judge observed
that many of the cases supporting the 9- to 18‑month range involved abuse
of authority or trust; coercion; repeat offenders; a stark difference in age
between the accused and the complainant; or evidence of exploitation, violence,
or threats: at para. 92.

[24]

The judge decided a proportionate
sentence fell below that range because those factors were absent from Mr. Scofields
particular circumstances:

[93]      Here,
there was no violence, threats, coercion, inducements or predatory behaviour on
Mr. Scofields part. The element of exploitation that exists in the cases
cited by the Crown distinguishes them from this case. Further, Mr. Scofield
had the psychological capacity and maturity of someone much younger than his chronological
age of twenty‑two.

[25]

Additionally, the
judge, at para. 94, cited
R. v. Lacasse
, 2015 SCC 64 at para. 58,
for the proposition that while parity in sentencing is important, each crime is
committed in unique circumstances sometimes calling for a sentence outside the
range in exceptional circumstances because, in part, [t]he determination of a
just and appropriate sentence is a highly individualized exercise that goes
beyond a purely mathematical calculation. In doing so, he accepted the
sentencing range was 9 to 18 months but concluded that
the unique and exceptional circumstances
of both the offender and the offence in this case, in my view, suggest that the
fit and appropriate sentence should be below the typical range: at para. 95.

[26]

Since key elements of
the judges analysis are criticized on appeal, it is useful to quote directly
from his reasons and emphasize the sentences that are material to Mr. Scofields
moral blameworthiness:

[96]      Dr. Joneja
suggests it is possible that, upon Mr. Scofield learning L.N. and M.L.
were 15 years old,
he did not know what to do with that information or what
the significance or implications of them being 15 were
. This is very
important. She comments that someone who experiences deficits with abstract thinking
and metacognitive skills might require a specific response such as no before
understanding he or she must refrain from behaving in a particular manner.
This
is important when assessing the moral blameworthiness of Mr. Scofield
.

[97]      On
first blush, Mr. Scofields Statement suggests that his answers to the
RCMP interviewer show that despite his intellectual challenges, he knew that
both L.N. and M.L. were aged 15 at the time and that having sex with them might
be problematic. It triggered an internet inquiry that for reasons that are
unclear, did not help his quandary.
Given his intellectual deficits, I am
not satisfied that he would have been able to understand his acts were
potentially harmful to L.N. and M.L. as under-aged girls
. The fact that M.L.
introduced him to her mother would not have helped with him understanding that
what he was engaged in was wrong.

[98]      Without
deciding the point one way or the other, I note that Mr. Scofields
diminished mental capacity could arguably have fit the close in age exception
under s. 150.1(2.1) and has been a defence to the s. 151 charges
because, as I understand it, the consent provisions in the
Code
allow
for the kind of sexual experimentation that is normal among teenage persons who
are exploring their sexuality, but condemn exploitive situations where
significantly older persons take advantage of someone who is sexually immature
and who is vulnerable to harm from sexual relations.

[99]
I
conclude that Mr. Scofields cognitive disabilities and impaired executive
decision-making brought his maturity and reasoning to that of a much younger
person well within the five-year age exception in s. 150.1(2.1) and
diminishes his moral blameworthiness
. These circumstances would not warrant
the same period of custody as someone who, for example, abused a six‑year‑old
relative.

[100]    I am
also guided by the factors for consideration in sentencing for sexual offences:
the nature and intrinsic gravity of the offences (in particular the use of
threats, violence, psychological threats and manipulation, etc.), the frequency
of the offences, any abuse of trust and authority, any disorders underlying the
commission of the offence, the offenders behaviour after the commission of the
offences, the time between the commission of the offences and the guilty
verdict as mitigating factors depending upon the offenders behaviour, and the
victim:
R. v. B.S.B.
, 2008 BCSC 1526 at para. 36.

[101]
I
have found this a difficult case. On the one hand Mr. Scofield, who albeit
had the chronological age of 22 at the time of the offences but was
intellectually much younger, had multiple sessions of sexual relations with two
15-year-old girls over a period of some six months. On the other hand, he is
intellectually challenged, clearly has psychological and cognitive issues, and
has the same or even less mental maturity as the complainants.
Furthermore,
there is no violence or threat of violence; he pleaded guilty; he has no
criminal record; there was no predatory behaviour; he was not in a position of
trust or authority over the complainants, and he now understands that what he
did was wrong.

[102]    I am
satisfied that Mr. Scofield has learned his lesson and specific deterrence
is not required.

[103]    That
leaves denunciation and general deterrence as the primary sentencing
considerations.

[104]    While
his acts are deserving of condemnation, his sentence must be proportional to
his moral blameworthiness in committing the offences.

[105]    I have
already set out the particular and peculiar circumstances of the offences and Mr. Scofields
unique and exceptional circumstances that result in his moral culpability for
the offences being reduced. Accordingly, this case calls for a highly individualized
sentence and one that cannot, in my view, be accomplished with a term of
imprisonment which would neither be fit nor proportionate.

[106]    Mr. Scofield
would not do well in an institutional setting and it would likely inhibit his
rehabilitative potential. It would be difficult and disruptive for him and he
would likely be subjected to hostility from other inmates. I must balance the
impact of a period of incarceration against the impact of keeping him in a
stable, supportive environment where he is under the supervision of his mother
and partner and in a role that requires him to take on some parenting
responsibilities.

[107]    I have
also taken into account the principles of sentencing set out in s. 718 of
the
Code
, including the requirement to denounce unlawful conduct and the
harm done to victims or to the community that is caused by unlawful conduct,
and to deter the offender and other persons from committing offences, as well
as s. 718.01, summarized earlier.

[108]    Mr. Scofield
is a first time offender with no prior criminal history who suffers from
significant cognitive deficits which loom large. He has been subject to
restrictive bail conditions since December 2013, without incident or breaches.
The Crown does not suggest his behaviour has been anything but appropriate. I
am satisfied that he is unlikely to offend again.

[109]    A
conditional sentence is a form of incarceration:
Proulx
at para. 40.
The purpose of a conditional sentence is to reduce the reliance on
incarceration as a sanction and increase restorative justice objectives:
Proulx
at para. 127. A conditional sentence includes both punitive and
rehabilitative aspects, and is therefore distinguishable from probationary
measures, which primarily serve as a rehabilitative sentencing tool:
Proulx
at para. 127.

[Emphasis
added.]

[27]

After examining the
principles governing the availability of conditional sentence orders, the judge
concluded:

[111]    I do
not believe that a sentence in the community would endanger the safety of
either the complainants or the community. I accept Dr. Jonejas opinion
that Mr. Scofield demonstrated no predilection for underage girls. His
risk of re‑offending is low. Furthermore, he comes before me with no
criminal record, and is not accused of breaching his bail conditions, which
suggests to me that he is a suitable candidate for a sentence in the community.

[112]    I have
also found that a conditional sentence is consistent with the fundamental
purpose and principles of sentencing. That is because both the nature of this
offence and the surrounding circumstances, the cognitive difficulties faced by Mr. Scofield,
and the pre-sentence report prepared by Dr. Joneja, strongly suggest that
specific deterrence is not as required as general denunciation for this
offender. Moreover, a conditional sentence can provide a significant amount of
denunciation if certain conditions are imposed as part of the order.

[113]    Due
to the exceptional circumstances of this case, I have concluded that Mr. Scofields
sentence must fall far below the range of 9 to 18 months that would otherwise
be the case. I have found that specific deterrence is not as important a
consideration as in comparable sexual interference cases, and that given Mr. Scofields
highly diminished cognitive skills, a sentence of six months to be served in
the community, in other words, a conditional sentence with conditions, would be
a fit and proportionate sentence and would meet the sentencing objectives of
the
Code
. It would take into account the gravity of the offences and Mr. Scofields
personal circumstances.

[28]

Finally, the judge
considered whether the one‑year mandatory minimum sentence amounted to
cruel and unusual punishment. He held that it did.

[29]

In doing so, the
judge accepted the goals of the sentencing regime were to protect children from
sexual exploitation and abuse. He agreed that any touching of a child for a
sexual purpose involved harming the child.

[30]

He also acknowledged
that cases result in incarceration of at least nine months if they involve the
typical evil the offence is intended to deter and punish. He reasoned, however:

[125]
in front of me I have an offender who has been assessed at a low risk to
reoffend, who has no predilection or affinity for underage girls, and at the
time of the offence, was likely unable to make the mental connection that there
was something inherently wrong or harmful about his relations with L.N. and
M.L.

[31]

Taking into account
all of the relevant principles applied to the facts, the judge concluded that
a reasonably informed member of the public, aware of all the circumstances of
this case, would agree that sending Mr. Scofield to prison for one year
would be so excessive as to outrage standards of decency. This was even more
so as the public is becoming more informed about the impact that mental health
issues and cognitive challenges can play in the criminal justice system: at para. 129.
Given his findings on the facts, the judge did not rely on reasonable
hypotheticals to support his analysis.

[32]

The judge deferred
passing sentence to allow the Crown to make further submissions on the remedy
and on whether the mandatory minimum could be justified under s. 1 of the
Charter
.
Those submissions became the subject of the supplementary submissions resulting
in the declaration of unconstitutionality and the imposition of sentence, but
they are not relevant to the issues on this appeal.

Analysis

[33]

This appeal involves
two issues: first, whether the judge erred in ways leading to a demonstrably
unfit sentence; and second, whether the mandatory minimum sentence is
unconstitutional. I will address the questions in that order.

[34]

First, the Crown
contends the judge erred in principle in two ways:  by treating the absence of
aggravating factors as mitigating factors, and in assessing how Mr. Scofields
cognitive impairment affected his moral culpability. The Crown argues these errors
led to the imposition of a demonstrably unfit sentence and tainted the judges
analysis of the constitutional issue. While the Crown suggests a sentence in
the range of 24 to 36 months would have been fit, it seeks the imposition of the
one-year mandatory minimum because of the plea arrangement at sentencing.

[35]

The first alleged
error is treating the lack of non‑sexual violence, coercion,
psychological threats or manipulation, and the presence of
de facto
consent as mitigating factors when they are properly considered as the absence
of aggravating factors. Since this error affected the sentence, the Court must
examine the fitness of the sentence without deference to the judge:
Lacasse
at paras. 44‑46;
R. v. Agin
, 2018 BCCA 133 at paras. 56‑57.

[36]

The judge expressly
referred to the lack of violence, threats and manipulation, and
de facto
consent as mitigating factors. I agree that none are mitigating factors; each
is the absence of an otherwise aggravating factor and, therefore, is not a
basis on which to reduce a sentence from what is otherwise appropriate. This
proposition is illustrated by the Manitoba Court of Appeal decision in
R. v. S.J.B.
,
2018 MBCA 62:

[20]      The sentencing judge cannot, however,
use the absence of an aggravating factor as mitigating or the absence of a
mitigating factor as aggravating; to take either path is an error in principle.
The absence of a mitigating or aggravating factor is neutral to the
determination of sentence.

[23]      The
judge erred when he characterised the lack of coercion, threat or pressure on
the complainant to participate in sexual intercourse as a mitigating
circumstance of the commission of the offence. The mere fact the complainant
said sure to the proposition of the accused to having sexual intercourse does
not reduce his moral blameworthiness.

[24]      Ostensible
consent by a person under age 18, who cannot legally consent to the sexual
contact in question, is not a mitigating factor for the determination of the
offenders sentence (see
R v Norton
, 2016 MBCA 79 at para 42).
Given the views of the Supreme Court of Canada in
Audet
about the
irrelevance of consent to criminal liability for the offence of sexual
exploitation, it is inappropriate for a sentencing judge to mitigate a sentence
because of the young persons willingness to participate in sexual touching
without the exertion or threat of non-sexual violence (see
R v JBS
, 2009
ABCA 347 at para 4; and
R v Hajar
, 2016 ABCA 222 at paras 84‑103).

[37]

The rationale
underlying s. 151 is that Parliament deems persons under 16 years of
age to be incapable of consenting to sexual activity with an adult, unless they
fall within the close-in-age exception.
De facto
consent does not
make the sexual activity less serious, less exploitative, or reduce the moral
culpability of the offender.

[38]

In this case, the
judge explicitly treated the lack of violence, coercion, exploitation, and the
presence of
de facto
consent as mitigating factors. In doing so, he
erred in principle. Treating them as mitigating factors affected the sentence,
reducing it below what it otherwise would have been: see paras. 100‑08,
113. As a result, this Court must determine a fit sentence without deference to
the trial judges sentence to the extent it was contaminated by the error. This
does not mean, however, that this Court should not show deference to any
finding of fact or the judges reasoning that is not contaminated by this error:
Agin
at para. 55.

[39]

Moreover, the Crown
conceded that while a lack of violence, coercion, exploitation, and the
presence of
de facto
consent are not mitigating factors, they are, nevertheless,
facts that are relevant to the determination of a fit sentence. Had violence or
threats occurred or had Mr. Scofield been in a position of trust, for
example, a fit sentence would be higher than if those facts were absent.

[40]

I turn now to the
second alleged error, since it too is said to have led to a demonstrably unfit
sentence.

[41]

The Crown accepts
that Mr. Scofield has a cognitive disability. The Crown also accepts that key
issues on sentencing were the extent of Mr. Scofields disability, whether
there was a causal connection between his disability and the commission of the
offence, and the extent to which his disability affected his moral
blameworthiness. The Crown argues the judge committed palpable and overriding
errors relating to these issues.

[42]

The Crown points to
evidence establishing that Mr. Scofield was able to function well in
society despite his cognitive deficits: he attended high school through grade 12
and obtained a Leaving School Certificate; he attended one semester at
Okanagan College; he lived independently with his former common-law partner
with whom he was in a relationship for several years; he parented his child,
with assistance; he set up his own Internet dating profile; he had, by his own
account, multiple sexual partners and dated five or six women; he drives a
motor vehicle; and he has had some short-term employment positions.

[43]

The Crown also points
to evidence indicating Mr. Scofield knew the ages of both complainants,
knew his conduct was wrong, undertook Internet searches to ascertain the age of
consent, and deleted text messages so his parents would not learn of his
conduct. More generally, the Crown submits that the judges findings are irreconcilable
with Mr. Scofields comments from his RCMP interview.

[44]

The Crown further argues
the expert evidence did not establish that Mr. Scofields conduct was the
direct result of his disability. While the Crown acknowledges Dr. Joneja
testified that Mr. Scofields cognitive deficits influenced his behaviour
and were a causal factor to him committing the offences, the Crown points out
that Dr. Joneja also testified that Mr. Scofields lack of knowledge
that his conduct was illegal was not because of his disability but because he
did not have that knowledge as a fact.

[45]

The Crown
acknowledges that an accuseds mental illness or cognitive deficits are
relevant factors in sentencing but argues they are only mitigating factors when
an established link between them and the offending conduct exists.  It must be
demonstrated, not just assumed, that the cognitive deficits have attenuated or
diminished the moral blameworthiness of the offender:
R. v. Okemow
,
2017 MBCA 59 at paras. 72‑73.

[46]

Additionally, the
Crown argues the judge made inconsistent findings of fact regarding Mr. Scofields
cognitive disability. For example, the judge found that Mr. Scofield
recognizes that what he did was wrong (at para. 10) but the judge was not
satisfied that Mr. Scofield knew his acts were potentially harmful to L.N.
and M.L. (at para. 97) and at the time of the offence, was likely unable
to make the mental connection that there was something inherently wrong or
harmful about his relations with L.N. and M.L.: at para. 125.

[47]

Finally, the Crown
argues that the judges findings with respect to intent and cognitive capacity
are irreconcilable with Mr. Scofields actual conduct during the two
offences. The Crown questions how Mr. Scofield could have entered, or the
Court could have accepted, a guilty plea to the essential elements of the
offence if he had such significant cognitive deficits that he did not
understand his conduct was wrong.

[48]

I am unable to
accede to the Crown submission. I do not think the judge made irreconcilable or
inconsistent findings of fact, and the judge had sufficient evidence to support
his findings about Mr. Scofields moral blameworthiness. That evidence was
relevant to the level and nature of Mr. Scofields cognitive impairment,
its relationship to his offending conduct, and to his moral understanding of the
offending conduct.

[49]

I do not think that
the facts the judge found undermine the guilty plea, which was taken well after
the offending conduct and in circumstances in which the immorality of his
conduct was brought to his attention. Moreover, it is not apparent to me that
the judge misapprehended the evidence on which the Crown relies. Rather, the
judge drew different inferences from the evidence and reached different conclusions
on the ultimate question of Mr. Scofields moral blameworthiness. In my
opinion, we should defer to the judges findings on this issue.

[50]

The reasons for
sentence demonstrate that the judge appreciated the evidentiary nuances
concerning Mr. Scofields insight into his own conduct. The evidence
required evaluation, assessment, and interpretation. It needed to be considered
in the context of all of the evidence to reach a thoughtful decision on what
inferences he could draw from the evidence. The judge was especially alive to
the initial impression created by Mr. Scofields statements in his police interview.
But the judge was equally concerned about how much weight should be placed on the
statements; he had to decide whether they could be taken at face value in light
of the way the interview was conducted and other evidence about Mr. Scofields
cognitive disabilities. The judge, who watched Mr. Scofields videotaped
police interview, was in the best position to engage in that analysis and we
should defer to it, unless the judges conclusions are so obviously wrong that
they amount to palpable and overriding error.

[51]

In my view, in
relation to his factual findings, the issue for the judge was less about
whether Mr. Scofield had some understanding that what he did was wrong than
about the extent and reality of Mr. Scofields understanding of the moral
quality of his conduct. This reflects the judges concern about the degree of Mr. Scofields
moral culpability.

[52]

The judge accepted
expert evidence supporting the conclusion that Mr. Scofield did not know
what to do with the information about, or understand the significance of, the
complainants age. The judge found Mr. Scofields cognitive disabilities
and impaired executive decision-making brought his maturity and reasoning to
that of a much younger person well within the five‑year age exception in
s. 150.1(2.1) and diminishe[d] his moral blameworthiness: at para. 99.
The judge found Mr. Scofield was intellectually much younger than his
chronological age, was intellectually challenged, had psychological and
cognitive issues, and was mentally and emotionally immature.

[53]

In doing so, the
judge pointed to evidence suggesting Mr. Scofield has Fetal Alcohol
Spectrum Disorder (though not confirmed) and evidence that his cognitive
abilities were in the extremely low (mild mental retardation) to borderline
range in intellectual functioning, placing him in the second percentile. The
evidence indicated that Mr. Scofield met all three DSM‑IV‑TR
criteria for a diagnosis of mental retardation: at para. 34 (see American
Psychiatric Association,
Diagnostic and Statistical Manual of Mental
Disorders
), revised 4th ed. (Arlington VA, American Psychiatric
Association, 2000). Mr. Scofield placed in the bottom 0.3rd percentile and
has an IQ of 59. An assessment of his brain function indicated
significant
impairment in cognition, core academic skills, executive functioning, memory,
communication, adaptive function, and attention and activity level. It also
disclosed that he may have mild neurological abnormality in sensory and motor
movement and incomplete brain development: para. 35.

[54]

The judge also
referred to other opinions:

[36]      A
report from Mr. Scofields family doctor, Dr. Arnold, dated June 16,
2015, is referred to in the pre‑sentence report and was filed as an
exhibit on sentencing. Dr. Arnold states:

[Mr. Scofield] has significant cognitive and behavior limitations which
affect his judgement, impulse control and understanding of his world. Indeed,
his IQ is quite low

 [Mr. Scofields]
judgement, insight, ability to understand complex issues and social cues is
very limited and the repercussions of some of his actions and behaviours are
also not understood. It would be my contention that some of the issues that
occurred with [Mr. Scofield] inappropriately using online dating and not
understanding the implications of what he was doing to a large extent could be
understood in his limited cognitive function and his significant development
delay.... I believe he did not appreciate or understand a lot of what he was
doing.

[55]

Finally, the judge
also took into account a report from Dr. Joneja, a registered
psychologist:

[48]      It
is Dr. Jonejas opinion that
Mr. Scofields cognitive deficits
influenced his behavior and
were a causal factor to him committing the
offences
. During her interview and testing, Mr. Scofield appeared
psychologically naïve and emotionally immature for his age. He has difficulty
associating with others and maintaining relationships either at work or with
intimate partners. She felt that although he has an intellectual disability,
his offending behaviour was not a direct result of that disability. His
disability probably influenced his offending behaviour to some degree, but she
was unable to opine on the extent of that link.

[Emphasis
added.]

[56]

As the Crown
acknowledged, mental illness or cognitive deficits are mitigating factors in
sentencing when there is an established link between them and the offending
conduct. In my opinion, it was open to the judge on the evidence to conclude
that that link was established.

[57]

Having reviewed the
record, I am not persuaded the judge made a palpable and overriding error in
his assessment of the evidence.

A One-Year CSO is a Fit and Proportionate Sentence

[58]

Given the judges
error in principle regarding mitigating factors, this Court must determine a
fit sentence.

[59]

The judge identified
a range of 9 to 18 months imprisonment and accepted the range could go as high
as three years imprisonment. In relation to sexual assault involving
intercourse under s. 271 of the
Code
, this Court identified a range
of two to six years imprisonment:
R. v. Akumu & Boima
,
2017 BCSC 1051 at para. 50, citing
R. v. Pouce Coupe
,
2014 BCCA 255. In this case, for this offence, the Crown suggests a range of
two to three years.

[60]

I do not dissent
from the 9- to 18‑month range the judge identified, but I note that the
cases at the lower end of the range tend to involve less egregious forms of
sexual touching than this case. In any event, the choice of a sentencing range,
or of a category within a range, is within the sentencing judges discretion
and does not itself constitute a reviewable error:
Lacasse
at para. 51.

[61]

I do not think it is
necessary to offer a definitive range for sexual interference in similar
circumstances of the offence. Having reviewed the cases, I am satisfied that multiple
acts of sexual intercourse between a person in their early twenties and victims
approaching 16 years old will normally attract a prison sentence of more
than one year.

[62]

Sentences are
increasing as courts more fully appreciate the damage that sexual exploitation
by adults causes to vulnerable, young victims: see
R. v. Vautour
,
2016 BCCA 497 at paras. 52‑54. I am also aware that some courts in
other provinces have identified a higher starting point for the range than the
ranges in B.C.: see e.g.,
R. v. W.B.S.
(1992), 127 A.R. 65
(C.A.), setting the four‑year starting point in Alberta. The range may
well be wider, at both ends, depending on the nature of the sexual contact and
the relationship between the parties: see e.g.,
R. v. J.G.
,
2017 ONCJ 881 (one year probation for sexual intercourse over two months
between individuals in a relationship that was 35 days from the close-in-age
exception);
R. v. D.G.P.
, 2009 BCPC 171 (14 days imprisonment
served intermittently, based on applicable mandatory minimum, in circumstances
with a seven‑year age difference, an open romantic relationship, and an
offender misinformed about the age of consent).

[63]

Absent the
exceptional circumstances the judge relied on, I accept that this case would
call for a sentence of more than one year. I would have imposed a sentence of
15 months imprisonment taking into account the mitigating factors (but
not exceptional circumstances the judge determined took this case out of the
normal range). A sentence of this length would be necessary to give proper
effect to denunciation and deterrence in light of the seriousness of the
offence.

[64]

In this case, the
judge placed considerable weight on Mr. Scofields personal circumstances;
principally, Mr. Scofields reduced moral culpability in light of his
cognitive impairment. It is important to stress that the judge decided that
this case was an exceptional case because of those considerations. This
analysis accords with the view expressed by Madam Justice Steel of the Manitoba
Court of Appeal in
R. v. J.E.D.
, 2018 MBCA 123, with which I
agree:

[75]      There
is no question that an offenders mental disability can be a significant
mitigating factor and relevant to sentencing principles and objectives (see
R v Adamo
,
2013 MBQB 225 at para 68;
Okemow
at para 107; and
R v Ford
,
2017 ABQB 322 at paras 47‑48). When sentencing individuals with
cognitive limitations, deterrence and punishment assume less importance.

[76]      This
decreased emphasis on punishment and deterrence in these circumstances is
consistent with the proportionality principle in section 718.1 of the
Code
.
A sentence must be proportionate to not only the gravity of the offence, but
also the degree of responsibility of the offender

[65]

Personal circumstances
of the offender are considered separately from the seriousness of the offence;
they do not lessen its seriousness. Personal circumstances, where applicable,
are considered independently to determine a proportionate sentence in light of
the seriousness of the offence.

[66]

In respect of a CSO for
Mr. Scofield, the judge found:

[111]    I do
not believe that a sentence in the community would endanger the safety of
either the complainants or the community. I accept Dr. Jonejas opinion
that Mr. Scofield demonstrated no predilection for underage girls. His
risk of re-offending is low. Furthermore, he comes before me with no criminal
record, and is not accused of breaching his bail conditions, which suggests to
me that he is a suitable candidate for a sentence in the community.

[112]    I
have also found that a conditional sentence is consistent with the fundamental
purpose and principles of sentencing. That is because both the nature of this
offence and the surrounding circumstances, the cognitive difficulties faced by Mr. Scofield,
and the pre-sentence report prepared by Dr. Joneja, strongly suggest that
specific deterrence is not as required as general denunciation for this
offender. Moreover, a conditional sentence can provide a significant amount of
denunciation if certain conditions are imposed as part of the order.

[67]

The judge also found
that incarceration would likely be harmful to Mr. Scofield given his
impairments, lack of maturity, and vulnerability:

[106]      Mr. Scofield
would not do well in an institutional setting and it would likely inhibit his
rehabilitative potential. It would be difficult and disruptive for him and he
would likely be subjected to hostility from other inmates. I must balance the
impact of a period of incarceration against the impact of keeping him in a
stable, supportive environment where he is under the supervision of his mother
and partner and in a role that requires him to take on some parenting
responsibilities.

[68]

In my view, multiple
factors played a role in the judges decision to impose a CSO rather than
imprisonment, including his view that the absence of non‑sexual violence,
exploitation, or breach of authority were mitigating factors. However, the
extent to which his error in principle affected his decision was relatively minor
considering the number of additional factors the judge considered. I view the
judges error in principle as primarily affecting the length of the CSO rather
than whether to impose one. More significant factors in his decision to impose
a CSO were his assessment of Mr. Scofields moral culpability, the harm
prison would cause Mr. Scofield, the lack of a need for specific
deterrence, and his view that the principles of deterrence and denunciation
could be met by a CSO.

[69]

Allowing for the
judges error in principle, I do not think the judge was wrong to conclude that
a CSO would be fit in this case. I note that Mr. Scofields personal
circumstances, both as they relate to moral culpability and vulnerability, are
similar to the offenders circumstances in
Swaby
. In that case, this
Court upheld a CSO in relation to possession of child pornography offences. I quote:

[72]      Assessing
Mr. Swabys moral culpability is complicated as he is not a typical
offender. Mr. Swaby was 23 years old at the time of the offence. He
is now 28 years old. His background is discussed above. At the time of the
offence, Mr. Swaby lived with significant cognitive and intellectual
impairment, as well as other mental health problems, including auditory
hallucinations.

[73]      The
circumstances of his offence were undeniably serious. His collection was
extensive, and portrayed children, including very young children, in violent
and horrific circumstances.

[74]      Mr. Swaby
understood that what he was doing was wrong. But, as Galati P.C.J. found,
he did not know how wrong it was. Mr. Swaby likened the experience of
watching the videos to watching a video of a person breaking their leg. That is
obviously not an accurate reflection of the blameworthiness or harm of the
offence.

[75]      Both
Galati P.C.J. and Marchand J. concluded that Mr. Swaby had a
highly reduced level of moral culpability based on his personal circumstances.
That reduced level of culpability supported their findings that a fit and
proportionate sentence would be a CSO.

[76]      In
order to justify a non‑custodial sentence, it is necessary to appreciate
the seriousness and significance of Mr. Swabys impairmentsparticularly
given that the difference is between a 90-day sentence, which could cause
significant harm to Mr. Swaby, and a CSO, which is a sentence of
imprisonment served in the community rather than the harmful prison setting.

[77]      In
R. v. Proulx
, 2000 SCC 5 at para. 22, the Court
concluded that a CSO is
also a punitive sanction capable of achieving the
objectives of denunciation and deterrence
.

[Emphasis
in original.]

[70]

I acknowledge that
conditional sentences will rarely satisfy the primary sentencing objectives of
deterrence and denunciation in cases involving sexual touching of vulnerable
children, especially where abuse of trust or authority is involved: see
R. v. Safaee
,
2009 BCCA 367. But as
Swaby
demonstrates, there are situations in which
a CSO can satisfy those principles. Given the findings of the sentencing judge,
I accept that this is a rare case in which a CSO can satisfy the principles of
sentencing. Indeed as this Court has reiterated in
R. v. A.E.S
.,
2018 BCCA 478 at para. 66:

This Court has said a number of
times that a CSO is not usually a fit sentence for an offender who has sexually
abused children, particularly as here, by a parent or person in trust or
authority. See
R. v. Safaee
, 2009 BCCA 367 at para. 26.
On the other hand, this Court has upheld CSOs in such cases, including in
R. v. Chen
,
2017 BCCA 426. Indeed, in
R. v. L.F.W
., 2000 SCC 6 at paras. 20‑21,
a companion case to
R. v. Proulx
, 2000 SCC 5, the Supreme
Court upheld a CSO for an indecent assault involving forced masturbation and
fellatio with a child who was then between the ages of 6 and 12 years old,
stating that a CSO was within the acceptable range and could provide sufficient
denunciation and deterrence. (That case involved a 4‑4 split on the
issue, as Cory J. did not participate. Thus, the appeal was dismissed,
upholding the sentence.)

[71]

A CSO can be
appropriate in circumstances when there is a delay between the guilty plea and
sentencing. In this case, Mr. Scofield has served part of his CSO and has been
on bail for a considerable time without incident. While the circumstances surrounding
the delay were not explained to us, the delay is concerning. In
R. v. Bosley
(1992), 59 O.A.C. 161 at para. 44 (C.A.), Doherty J.A. commented that
excessive delay causing prolonged uncertainty can be taken into account as a mitigating
factor in sentencing.
The
Court may also be reluctant to impose a custodial sentence on a young person on
appeal where considerable time has passed between the commission of the crime,
sentencing, and appeal, and the offender has served the bulk of the sentence.
In
R. v. Lai
, 2006 BCCA 368, the Crowns appeals from
conditional sentence orders were dismissed on this basis, despite the fact that
the seriousness of the offences would have otherwise required jail time. The
Court, per Ryan J.A., held that the fact that the offenders were close to
completing their sentences was a consideration in determining whether to
intervene: at paras. 104‑05. Both considerations, delay and partial
completion of the sentence, support not imposing a sentence of incarceration in
this case.

[72]

Considering all the
relevant factors, paying respectful attention to the judges reasoning (untainted
by the error), and considering factually-similar cases, I conclude that a one‑year
CSO is a fit and proportionate sentence.

The Mandatory Minimum is Grossly Disproportionate for Mr. Scofield

[73]

As Bennett J.A.
made clear in
Swaby
, where a CSO is the fit and proportionate sentence,
a period of incarceration can, in the right circumstances, be grossly
disproportionate to that sentence: para. 84. This is because a CSO is a
different kind of sentence of imprisonment. Bennett J.A. put it this way:

[84]       As
the Supreme Court recognized in
Proulx
, there is a very significant
difference between being behind bars and functioning within society under a
CSO (para. 40, quoting
R. v. Shropshire
, [1995] 4 S.C.R.
227 at para. 21).

[85]      Although
recent s. 12 cases have focused on durations of mandatory minimum
sentences, s. 12 of the
Charter
has its origins in protection
against punishments of a particular nature or kind:
Smith
at 1109, per
Wilson J. As Lamer J. (as he then was) wrote in
Smith
, the
gross disproportionality of a sentence is ultimately a multi‑factored
question (at 1073):

The
effect of the sentence is often a composite of many factors and is not limited
to the quantum or duration of the sentence but includes its nature and the
conditions under which it is applied. Sometimes by its length alone or by its
very nature will the sentence be grossly disproportionate to the purpose
sought. Sometimes it will be the result of the combination of factors which,
when considered in isolation, would not in and of themselves amount to gross
disproportionality. For example, twenty years for a first offence against
property would be grossly disproportionate, but so would three months of
imprisonment if the prison authorities decide it should be served in solitary
confinement.

[86]      It is
precisely because a CSO and a jail term are sentences with different natures
that their durations cannot be directly compared. The Court explained clearly
in
Proulx
that a conditional sentence will usually be a more lenient
sentence than a jail term of equivalent duration (para. 44).

[87]      Judge
Galati properly concluded that a carceral sentence would be grossly
disproportionate to the CSO that he ultimately imposed on Mr. Swaby.
Although Mr. Swabys offending was extremely serious, it was ameliorated
by his personal circumstances. In his unusual circumstances, I agree with
Galati P.C.J. and Marchand J. that the mandatory minimum sentence is
grossly disproportionate, and that sending Mr. Swaby to prison, even to
serve an intermittent sentence, would outrage the standards of decency of most
informed Canadians.

[74]

I find these
comments applicable to Mr. Scofield. Although his offences were extremely
serious and normally attract a term of imprisonment in excess of the one‑year
mandatory minimum, sending Mr. Scofield to prison for one year, given his significant
cognitive deficits, would outrage the standards of most informed Canadians.

The Mandatory Minimum Sentence is Grossly Disproportionate
on a Reasonable Hypothetical

[75]

In most circumstances,
a s. 151 offence will lead to incarceration. Indeed, very often the term
of imprisonment will exceed the mandatory minimum. In many respects, the
mandatory minimum is unnecessary as courts already impose considerably longer
sentences in circumstances where young children are sexually exploited by
adults in positions of trust or authority.

[76]

Lengthy sentences
reflect courts appreciation of the inherent harm to young and vulnerable
victims from improper sexual contact with adults. Many cases involve abuse of
trust, repeated sexual misconduct, and a significant age difference between
victim and perpetrator. Many victims are prepubescent. Their lives can be
irretrievably damaged or destroyed by the abuse. As Moldaver J.A. (as he
then was) said in
R. v. D.(D.)
(2002), 58 O.R. (3d) 788
(C.A.):

[34]      The
overall message however, is meant to be clear. Adult sexual predators who would
put the lives of innocent children at risk to satisfy their deviant sexual
needs must know that they will pay a heavy price. In cases such as this, absent
exceptional circumstances, the objectives of sentencing proclaimed by
Parliament in s. 718(a), (b) and (c) of the
Criminal Code
, commonly
referred to as denunciation, general and specific deterrence, and the need to
separate offenders from society, must take precedence over the other recognized
objectives of sentencing.

[35]      We as
a society owe it to our children to protect them from the harm caused by
offenders like the appellant. Our children are at once our most valued and our
most vulnerable assets. Throughout their formative years, they are manifestly
incapable of defending themselves against predators like the appellant and as
such, they make easy prey. People like the appellant know this only too well
and they exploit it to achieve their selfish ends, needless of the dire
consequences that can and often do follow.

[36]      In
this respect, while there may have been a time, years ago, when offenders like
the appellant could take refuge in the fact that little was known about the
nature or extent of the damage caused by sexual abuse, that time has long since
passed. Today, that excuse no longer holds sway. The horrific consequences of
child sexual abuse are only too well known.

[77]

There can be no
doubt of the vital public purpose behind s. 151. Courts impose sentences
intended to vindicate that purpose in light of the sentencing objectives set
out in the
Code
. But the offence can be committed through conduct that
is significantly removed from the evil to which it is directed. The difficulty
with the mandatory minimum sentence in this case was described by McLachlin C.J.C.
in
R. v. Lloyd
, 2016 SCC 13:

[3]        As
this Courts decision in
R. v. Nur
, 2015 SCC 15, [2015] 1
S.C.R. 773, illustrates, the reality is that mandatory minimum sentences for
offences that can be committed in many ways and under many different
circumstances by a wide range of people are constitutionally vulnerable because
they will almost inevitably catch situations where the prescribed mandatory
minimum would require an unconstitutional sentence.

[78]

It follows that the offence
may capture conduct different from what it principally targets. For this reason,
the constitutionality of mandatory sentences are tested against reasonable
hypotheticals to which they apply. As made clear in
R. v. Nur
,
2015 SCC 15, the test is not confined to situations that are likely to arise in
general day-to-day application of the law. Rather, the test targets
circumstances foreseeably captured by the minimum conduct to commit the offence
and takes into account personal circumstances of people who may be caught by
the mandatory minimum:
Nur
at paras. 68, 76.

[79]

In approaching the
issue of reasonable hypotheticals, I note that Parliament contemplates that the
s. 151 offence can be committed in various ways, some of which are
punishable by a mandatory minimum sentence of 90 days imprisonment.
Section 151(b) provides for such a sentence where the Crown proceeds
summarily (even though the elements of the offence are exactly the same as
proceeding by indictment).

[80]

The Supreme Court of
Canada has made it clear that the constitutionality of a mandatory minimum
sentence does not depend on the Crown electing to proceed by indictment or
summarily:
Nur
at paras. 85‑95. Nonetheless, the fact
Parliament provides for such an election suggests Parliament contemplated either
that the offence could be committed in ways that would justify only a 90‑day
mandatory minimum or that the circumstances of the offender might justify the
Crown proceeding summarily to attract the lesser sentence.

[81]

I find it difficult
to understand how a mandatory minimum of one year is not grossly
disproportionate to circumstances that can attract only a 90‑day sentence
if the Crown elected to proceed summarily. Parliament has, it seems,
contemplated the possible existence of circumstances that demonstrate that the
one‑year mandatory minimum is cruel and unusual punishment.

[82]

Apart from this, the
mandatory minimum must fail the reasonable hypothetical test. Consider a case
in which two young people meet at a party attended by other young people. One
is almost 16 years old. The other turned 21 years old a few months earlier.
The close-in-age exception is inapplicable by a few months and certainly less
than one year. The two people drink alcohol and smoke marihuana. They are not
drunk but their inhibitions are reduced. Finding that they are attracted to
each other, they find a private bedroom. They engage in some kissing and brief sexual
touching over their clothing, but they do not undress or have intercourse.
After approximately ten minutes, they return to the party. During their time
together, they act willingly, knowing each others ages. Neither person has a
criminal record. This is the only occasion where either one engages in this
kind of conduct with each other.

[83]

In my opinion, imposing
a one‑year mandatory minimum sentence in those circumstances is grossly
disproportionate, would shock the conscience of Canadians, and would be cruel
and unusual punishment. A proportionate sentence would not attract imprisonment
or even necessarily a CSO. The result does not turn on the gender of the
participants or any other details about the personal circumstances of the older
person. Other reasonably relevant factors about the offender that heighten the
disproportionate character of the sentence can be added to the hypothetical. As
in this case, the offender might have disabilities that reduce moral
culpability. Alternatively, the judge might be obliged to consider significant
Gladue
factors in sentencing.

[84]

In
Hood
, the Nova
Scotia Court of Appeal declared this mandatory minimum to be unconstitutional
on the basis of a hypothetical related to the facts in issue in that case. The
Court set out its hypothetical:

[150]    [A]
first-year high school teacher in her late 20s with no criminal record. She
suffers the same mental health challenges as Ms. Hood. One evening, she
texts her 15‑year‑old student ostensibly to inquire about a school
assignment. Feeling manic, she directs the conversation from casual to sexual.
They agree to meet that same evening in a private location where they fondle
each other. That was their one and only sexual encounter. Consider further a
guilty plea, coupled with the teachers sincere remorse.

[85]

The Court concluded
that these facts would unlikely lead to a sentence of imprisonment or, at most,
only a short sentence.

[86]

Caron Barrette
c. R.
, 2018 QCCA
516, involved facts more similar to the instant case. There, a 23‑year‑old
offender engaged in a romantic relationship with a 14‑year‑old girl
with her parents consent. Neither party was aware their conduct was illegal.
The Court of Appeal determined that a sentence of 90 days imprisonment
served intermittently was proportionate but also grossly disproportionate to
the mandatory minimum. While not necessary to consider reasonable
hypotheticals, the Court concluded that those relied on by the sentencing judge
were appropriate and supported the finding that the mandatory minimum was
grossly disproportionate: see paras. 103‑04. The hypotheticals were:

1.

A romantic
relationship similar to that which existed between the offender and the victim,
but for a period of several days, which only involved kissing and touching;

2.

An isolated caress,
over the clothes, on the thigh or buttocks, by a person who is not an authority
figure, and without consequences for the victim; and

3.

A romantic relationship in which the
victim is 15 ½ years old and legally unable to consent at the
beginning of the relationship, and the relationship continues after she reaches
16 years old.

[87]

In
J.E.D.
, the
Manitoba Court of Appeal described the analysis of reasonable hypotheticals in
Hood
and
Caron Barrette
compelling and, accordingly, found the mandatory
minimum sentence grossly disproportionate to what would have been appropriate:
at para. 107. I agree.

[88]

The Crown did not
attempt to justify s. 151(a) under s. 1 of the
Charter
. Nor
did the Crown seek any remedy other than a declaration that s. 151(a) is
of no force and effect if the mandatory minimum sentence breached s. 12 of
the
Charter
.

Conclusion

[89]

I would declare that
the mandatory minimum sentence in s. 151(a) of the
Code
is
unconstitutional and of no force or effect. I would allow the appeal and set aside
the sentence only to the extent of substituting a CSO of one year in place of
the original sentence imposed.

The Honourable Mr. Justice Harris

I agree:

The
Honourable Mr. Justice Savage

Reasons
for Judgment of the Honourable Madam Justice Fisher:

[90]

I have had the opportunity to review in draft the reasons for judgment
of Mr. Justice Harris. I
am grateful to him for his clear
description of the factual background and the issues before us. I agree with
his ultimate conclusion that the mandatory minimum sentence in s. 151(a)
of the
Criminal Code
is unconstitutional and that the appeal should be
allowed to the extent of substituting a conditional sentence order (CSO) for a
longer term than the six months imposed by the court below. However, I would
impose a CSO of 16 months given the seriousness of the offences.

1.       Errors that impacted the sentence

[91]

While this Court must give
deference to trial judges on sentencing decisions, it may intervene where there
has been a material error that has impacted the sentence or where a sentence is
demonstrably unfit. A material error includes an error in principle, a failure
to consider a relevant factor, or an erroneous consideration of aggravating or
mitigating factors:
R. v. Lacasse
,
2015 SCC 64

at
paras. 11
,
39, 43
‒
44;
R. v. Agin
,
2018 BCCA 133 at paras. 56
‒
57
.

[92]

In my view, the sentencing judge erred in two material ways that
impacted the sentence.

[93]

The first error, as described by Harris J.A., was his treatment of
the lack of certain aggravating factors and the presence of
de facto
consent as mitigating factors. The judge explicitly listed the following as
mitigating factors:

[80]  g. Mr. Scofield
exhibited no predatory behaviour and was not in a position of trust or
authority over either [complainant]; and

h. there is no evidence before me of deception, coercion,
manipulation, threats, or violence on the part of Mr. Scofield towards
either complainant and each relationship appeared to me one of willing
participants.

[94]

It is clear that a sentencing judge can use neither the absence of an
aggravating factor, nor ostensible consent by a person who cannot legally
consent, as mitigating factors: see
R. v. S.J.B
., 2018 MBCA 62
at para. 24;
R. v. Hajar
, 2016 ABCA 222 at paras. 84103.
This error permeated the judges assessment of the seriousness of the offences,
as demonstrated throughout the reasons for judgment. For example:

[93]
Mr. Scofield
and the complainants seemed to regard each other as being in a relationship,
loosely defined
. This dynamic is analyzed by Justice Code of the Superior
Court of Justice in
R. v. Hussein
,
2017
ONSC 4202
at paras. 36-42
, where he ultimately declares the mandatory minimum
sentence in s.
151
(a) of the
Code

to be of no force and effect.
Here, there was no
violence, threats, coercion, inducements or predatory behaviour on Mr. Scofields
part. The element of exploitation that exists in the cases cited by the Crown distinguishes
them from this case
.

[101]
I have found this a difficult case. On the one
hand Mr. Scofield, who albeit had the chronological age of 22 at the time
of the offences but was intellectually much younger, had multiple sessions of
sexual relations with two 15‑year-old girls over a period of some six
months. On the other hand, he is intellectually challenged, clearly has
psychological and cognitive issues, and has the same or even less mental
maturity as the complainants. Furthermore,
there is no violence or threat of
violence
; he pleaded guilty; he has no criminal record;
there was no
predatory behaviour; he was not in a position of trust or authority over the
complainants
, and he now understands that what he did was wrong.

[122]
I accept that touching a child for a sexual
purpose, in and of itself, involves actual harm. I also accept that it cannot
be said that any conduct captured under this provision does not involve some
harm. Where I depart  but mainly based on factual differences between this
case and
E.M.Q.
 is that the harm is militated by Mr. Scofields
diminished mental capabilities at the time of the offences,
the nature of
the relationships he had with L.N. and M.L
., the six-year age difference,
and
the lack of any violence, threats, intimidation or exploitation
.

[126]
With no
evidence that he treated either complainant in a malicious, abusive, or
otherwise harmful way
, I struggle to see how Mr. Scofield remains
any threat to society.

[Emphasis added.]

[95]

This error demonstrates a failure to recognize the vulnerability of y
oung people under 16 years of age to
sexual exploitation, whether or not there is coercive conduct on the part of
the offender or sexually provocative behaviour on the part of the complainant.
Although these facts are relevant to a determination of a fit sentence, the
judge here placed so much emphasis on them that he failed to properly assess
the seriousness of the offences.

[96]

The second error is related to the first. While I agree that the judge
made no error in concluding that Mr. Scofields cognitive impairment
reduced his moral culpability, his assessment of that reduction was skewed by
two things: (i) giving undue emphasis to the willingness of the
complainants and the absence of exploitive or coercive conduct; and
(ii) placing unreasonable weight on the cognitive impairment. As a result,
it is my view that the judge failed to properly assess the extent to which the
cognitive impairment influenced Mr. Scofields criminal behaviour and
imposed a sentence that was not properly proportionate to the gravity of the
offence and the degree of responsibility of Mr. Scofield.

[97]

It is important to note that these offences were serious. They involved
repeated acts of oral sex and unprotected intercourse with two 15-year-old
complainants over a five-month period. Mr. Scofield was in a common law
relationship that was not going well. He sought out the first complainant,
L.N., through Facebook and the second, M.L., on an Internet program known as
MeetMe, and he communicated with both of them by text message. He was aware
that they were both 15 years old and in grade 9. He picked each of
them up in his car and drove to various places where the sexual activity took
place. He deleted his text messages with each of the complainants every night
to ensure that his parents did not find out about these relationships. These
circumstances demonstrate deliberate conduct with an awareness that it was
wrongful at least in some way.

[98]

The judge found that Mr. Scofield was likely unable to make the
connection that he had done something wrong or harmful to the complainants. He
concluded that the harm caused was militated in part by Mr. Scofields
diminished mental capabilities at the time of the offences. However, the
evidence does not support such a conclusion in light of the serious and
deliberative nature of Mr. Scofields conduct and the victim impact
statement of L.N., who described emotional impacts that included serious
depression and anxiety, self harming, dropping out of school, and difficulties
relating to family and friends.

[99]

There is no question that Mr. Scofield is intellectually impaired,
but the impact of this factor on his moral culpability required full
consideration of his psychological profile in the context of his offending
conduct. Mr. Scofields cognitive abilities were tested at various times
between 2001 and 2015. His full scale IQ varied from 70 in 2011 to 59 in
2015, both in the extremely low range. The 2015 assessment, prepared by the
Assante Centre, used an updated adult test, resulting in a lower score, but
confirmed that the results were consistent with the previous assessment that Mr. Scofield
had a mild intellectual impairment. As Harris J.A. noted, this assessment
also indicated significant impairment in various aspects of Mr. Scofields
intellectual function. Dr. Melanie Joneja, a clinical psychologist who
prepared a pre-sentence psychological report, also tested Mr. Scofield in
2015, using various instruments.

[100]

Dr. Jonejas
report indicated a fairly complex clinical picture that included an IQ in the
low average range and characteristics associated with a narcissistic
personality disorder. The results of one test of cognitive ability (the Shipley
Institute of Living Scale) were in the Below Average range and were somewhat
better than the previous test results. She found that Mr. Scofield was
able to sustain attention and concentration, meaning that he was able to focus
on a task and able to complete it, either when it was required of him or where
he was motivated. It was her opinion that Mr. Scofields conduct was
influenced by a number of factors, not just his cognitive impairment. These
included behavioural disinhibition and his personality characteristics. As
the judge noted, Dr. Joneja was of the view that Mr. Scofields
conduct was not a direct result of his cognitive impairment but was probably
influenced by it. Although she agreed that it would have been a causal factor,
she was unable to say with certainty the extent of that link. Importantly, Dr. Joneja
assessed Mr. Scofield at a low to moderate risk of re‑offending
without ongoing support and supervision.

[101]

In
addition to Dr. Jonejas evidence, there was evidence demonstrating that Mr. Scofield
was able to function reasonably well despite his cognitive limitations, and was
aware that his conduct with the complainants was wrong: he obtained a Leaving
School Certificate after grade 12; he attended a semester at college; he
was able to sustain short term employment; he dated and had multiple sexual
partners; he lived independently with his former common-law partner and
parented a child (with assistance); he drove a motor vehicle; he set up a
dating profile on the Internet; he knew that the complainants were each
15 years old; he searched the Internet to ascertain the age of consent;
and he deleted his text messages with the complainants to hide his behaviour
from his parents.

[102]

It was clearly open to the sentencing judge to conclude that Mr. Scofields
cognitive disabilities reduced his maturity level to that of a younger person
and diminished his moral blameworthiness. However, the reasons for sentence
demonstrate that the judges real concern was that Mr. Scofields
diminished mental capacity could arguably have fit the close in age
exception in s. 150.1(2.1), which is a defence to a charge under s. 151:

[98]       because, as I
understand it, the consent provisions in the
Code
allow for the kind of
sexual experimentation that is normal among teenage persons who are exploring
their sexuality, but condemn exploitive situations where significantly older
persons take advantage of someone who is sexually immature and who is
vulnerable to harm from sexual relations.

[103]

I
appreciate the judges concerns here, but it is my opinion that these concerns
caused the judge to reduce Mr. Scofields level of moral blameworthiness
to a point far below what was evident from his offending behaviour. Moreover,
these concerns echo the judges emphasis on the absence of exploitive or
coercive conduct. They also fail to take into account the expert evidence
regarding the extent of Mr. Scofields cognitive impairment as a causal
factor.

[104]

I agree with the principles enunciated by the Manitoba Court of Appeal
in
R. v. Okemow
, 2017 MBCA 59, and more recently in
R. v. J.E.D
.,
2018 MBCA 123, that an offenders moral blameworthiness may be reduced where
there is a connection between a mental condition and the offence. That
connection need not be the only causative factor, but it is important that the
sentencing judge assess the extent to which such a mental condition played a
role in the criminal conduct. As the court said in
Okemow
:

[72]
A reduction of moral blameworthiness for the purposes
of sentencing, either for an adult or a young person, due to a recognized and
properly diagnosed mental illness or other condition where the functioning of
the human mind is impaired, is a fact-specific case-by-case determination as
opposed to an automatic rule that the mental illness or cognitive limitation
necessarily impacted the commission of the offence in question

[Citations
omitted.]

[105]

It then suggested that sentencing judges
properly assess the following questions (at para. 73):

1.         Is
there cogent evidence that the offender suffers from a recognized mental
illness or some other cognitive limitation?

2.         Is
there evidence as to the nature and severity of the offenders mental
circumstances such that an informed decision can be made as to the
relationship, if any, between those circumstances and the criminal conduct?

3.         Assuming the record is adequate, the sentencing judge must
decide the offenders degree of responsibility for the offence taking into
account whether and, if so,
to what degree his or her mental illness or
cognitive limitation played a role in the criminal conduct
.

[Emphasis added.]

[106]

The evidence of Dr. Joneja established a connection between Mr. Scofields
offending behaviour and his cognitive impairment. However, her evidence also
established a connection between his offending behaviour and other factors, the
most significant being his personality characteristics. Her assessment included
a fairly comprehensive discussion of Mr. Scofields mental health and
personality disorder that included the results of cognitive testing as well as
a number of observations. For example:

Mr. Scofield presented as psychologically naïve;
however, no evidence of disorganized thought or reality distortion was observed

Throughout the interview Mr. Scofield demonstrated a
capacity for sustained attention and concentration

items endorsed by Mr. Scofield on the MCMI‑III
[Million Multiaxial Inventory-III] suggest a preponderance of characteristics
associated with narcissistic personality disorder along with dependent
personality traits and passive-aggressive tendencies

According to self-report, Mr. Scofield may be
preoccupied with immature and self glorifying fantasies of success, beauty and
love. He is minimally constrained by objective reality and has a tendency to
take liberties with facts and often lies to reinforce his boastful
self-illusions. He is inclined to exaggerate his power, transform his failures
into successes and create elaborate stories to inflate his self-esteem.

Mr. Scofields responses on the MCMI‑III also
revealed that he is unlikely to admit personal responsibility for personal
failures or interpersonal conflict, and may readily project blame onto others.
He is likely to be self-indulgent and insistent on getting his way. He may be
fearful that others perceive him as weak and indecisive. Therefore, he presents
a façade of arrogant confidence and bravado, likely concealing strong feelings
of inadequacy

It may be possible that under
increased duress and lowered self-esteem Mr. Scofield may be more inclined
to seek comfort and solace in inappropriate ways, thereby placing him and
others at risk.

[107]

A
conclusion of diminished moral culpability is to be made after due
consideration of all relevant circumstances, which include the nature and
extent of the cognitive impairment, other relevant factors, and the particulars
of the offence: see
R. v. Peyachew
, 2016 SKCA 21 at para. 44.
No doubt Mr. Scofields cognitive impairment was significant, but the
judge erred in principle by placing undue weight on this factor and failing to
consider these other influential factors and the circumstances of the offences.
As a result, he failed to properly assess the degree to which the cognitive
impairment played a role in Mr. Scofields criminal conduct.

[108]

Given
these errors, it is this Courts function to assess the fitness of the sentence
by conducting its own sentencing analysis:
Agin
at para. 56.

2.       The mandatory mini
mum is grossly
disproportionate

[109]

Under
s. 742.1(b) of the
Criminal Code
, a CSO is not available where the
offence in issuehere sexual interferencehas a mandatory minimum sentence.
Therefore, a court may only consider a CSO for Mr. Scofield
[1]
if it determines that the mandatory minimum is inconsistent with s. 12 of
the
Canadian

Charter of Rights and Freedoms
, either because is it
grossly disproportionate for the offender or for other offenders based on a
reasonable hypothetical:
R. v. Nur
, 2015 SCC 15.

[110]

A sentence
will be inconsistent with s. 12 where it is so unfit having regard to the
offence and the offender as to be grossly disproportionate. This is a high
bar, as it is aimed at punishments that are more than merely excessive:
R. v. Smith
,
[1987] 1 S.C.R. 1045 at 1072.

[111]

In order
to determine whether a mandatory minimum sentence is grossly disproportionate,
a sentencing judge must first assess what constitutes a proportionate sentence
based on the objectives and principles of sentencing in the
Criminal Code
.
In doing so, the judge generally focuses on the duration of the mandatory
minimum. However, this Court held in
R. v. Swaby
, 2018 BCCA
416, that a minimum sentence may in the right circumstances be grossly
disproportionate where a CSO is unavailable. This is because a CSO is a
sentence of a different kind and s. 12 of the
Charter
has its
origins in protection against punishments of a particular kind or nature:
Swaby
at para. 85.

[112]

I agree
with Harris J.A. that the circumstances of these offences, which involve
multiple acts of sexual intercourse between a person in his early twenties and
complainants approaching the age of 16, will normally attract a prison sentence
of more than one year
.
I also agree that the
appropriate range of sentence in this case, given Mr. Scofields
circumstances, would be between 9- and 18‑months imprisonment. That
range, in itself, would not be inconsistent with s. 12 of the
Charter
.

[113]

However,
this case raises a question regarding the availability of a CSO in an
assessment of whether a mandatory minimum sentence is grossly disproportionate.

[114]

In his
assessment, Harris J.A. accepts that the sentencing judges decision to
impose a CSO on Mr. Scofield  other than its length  was minimally
affected by his error in considering the lack of aggravating factors to be
mitigating. I respectfully disagree. It is my view that the judges errors in
principle materially affected his assessment of a fit sentence generally. He
concluded that Mr. Scofields sentence must fall far below the range of 9 to
18 months and that a six‑month CSO would meet the sentencing
objectives of the
Criminal Code
. I do not consider a sentence below
9 months or a six‑month CSO to be fit and proportionate sentences.

[115]

Harris J.A.
also equated Mr. Scofields personal circumstances relating to moral
culpability and vulnerability to the offenders circumstances in
Swaby
.
I do not disagree that there are similarities, but it is important, in my view,
to remain focused on the particular circumstances of Mr. Scofield when
assessing gross proportionality in relation to a CSO.

[116]

Swaby
involved an offender who pleaded guilty to one count of possession of child
pornography (charged summarily) and was sentenced to a four-month CSO. In
addition to a significant cognitive impairment, the offender had other mental
health problems that included a history of suicidal behaviour and ideation,
chronic sleep disturbance, auditory hallucinations and depressed mood. There
was expert evidence that he did not have a paedophilic disorder, was at a
relatively low risk of reoffending, and would not be able to tolerate
incarceration. Mitigating factors included the offenders youth and relative
isolation at the time of the offence, his lack of a criminal record, his
cooperation with authorities, his expression of remorse and early guilty plea,
and his willingness to be assessed and treated.

[117]

In Mr. Scofields case, there is an absence of comparable mental
health issues but rather a complex profile of both cognitive and personality
dysfunction. There was no expert evidence regarding his tolerance for
incarceration, but the judge concluded that he would not do well in prison:

[106]    Mr. Scofield would
not do well in an institutional setting and it would likely inhibit his
rehabilitative potential. It would be difficult and disruptive for him and he
would likely be subjected to hostility from other inmates. I must balance the
impact of a period of incarceration against the impact of keeping him in a
stable, supportive environment where he is under the supervision of his mother
and partner and in a role that require shim to take on some parenting
responsibilities.

[118]

It is
important to note that a mandatory minimum sentence will not be grossly
disproportionate simply because a CSO is unavailable. As this Court held in
Swaby
,
the gross proportionality of a sentence is ultimately a multi-factored
question (at para. 85). To be grossly disproportionate, a case must be
exceptional to the point that a carceral sentence would outrage our societys
standards of decency. That was the conclusion in
Swaby
, where this Court
accepted the sentencing judges assessment that the case was exceptional and
that a carceral sentence would be grossly disproportionate to a CSO (there, of
four months duration). In my opinion, such a conclusion should be made only in
rare and exceptional cases.

[119]

Despite my
concerns about the sentencing judges assessment of the seriousness of the
offences, I agree with Harris J.A. that he was not wrong in concluding
that a sentence served in the community would be fit and appropriate for Mr. Scofield.
The judge was in the best position to determine this and to assess the impact
of incarceration on Mr. Scofield, and his reasons are supported by the
expert evidence regarding Mr. Scofields risk of re‑offending. In
these exceptional circumstances, I agree that a carceral sentence for this
offender would be more than merely excessive and, therefore, grossly
disproportionate to these offences for this offender.
In any event, I also agree that the mandatory one‑year minimum sentence
is grossly disproportionate on a reasonable hypothetical.

3.       A fit sentence

[120]

To be consistent
with
the fundamental purposes and principles of sentencing in ss. 718
and 718.2 of the
Criminal Code
, a CSO in this case must properly
reflect the principles of denunciation
and deterrence in light of the serious nature of the offences. As the court
made clear in
R. v. Proulx,

2000 SCC 5
, a CSO is more lenient than a jail term
of equivalent duration, but a CSO with onerous conditions that extend longer
than a sentence of incarceration can still provide a significant amount of
denunciation and deterrence.

[121]

Given that the appropriate range of sentence for Mr. Scofield
would be between 9 and 18 months, it is my opinion that a CSO of
16 months would meet the necessary objectives.

[122]

As the Crown made no submissions on the conditions imposed by the
sentencing judge, I would allow the appeal in a similar manner to that set out
by Harris J.A. except that I would set aside the sentence to the extent of
substituting a CSO of 16 months in place of the six‑month CSO.

The Honourable Madam Justice Fisher

[1]
A CSO is no longer available for an offence under s. 151(a) regardless of
the mandatory minimum because the maximum sentence under that section has,
since Mr. Scofields offence, been increased to 14 years; s.
742.1(c) of the
Criminal Code
prohibits
the imposition of a CSO where the offence, when prosecuted by way of
indictment, has a maximum term of imprisonment of 14 years or life.