SELECTED CASE LAW
In 2018 BSCS 2286, Mr. S was charged with sexual interference, child luring, sexual assault and criminal harassment.
Mr. S was more than 25 years older than Ms. J and was a member of her extended family. She described him as her uncle. He had been acquitted of sexually assaulting Ms. J several years earlier. Ms. J stated that Mr. S would visit her home where she lived with her grandmother and try to kiss her, undress her and touch her sexually, with some success. Mr. S denied this, which the court did not accept.
Evidence of their text messages showed that Mr. S called Ms. J “babe”, referred to her “cute butt” and invited her to spend time with him. He also messaged her on Facebook and Kik, which he acknowledged was inappropriate. Ms. J mainly responded about 20 times to his approximately 100 messages with brief one-word answers. Ms. J’s brother told Mr. S to stop messaging Ms. J. The court found that the purpose of the messages was to facilitate visits so he could have sexual contact with Ms. J.
Mr. S was found guilty of sexual assault, sexual interference and child luring involving Ms. J. The sexual assault charge was stayed based on the Kienapple principle. He was not found guilty of the harassment offence. It was clear that his communication made Ms. J uncomfortable, but did not amount to the level of harassment. The court noted Ms. J had blocked him, but then unblocked him, responded to some of his messages, and did not “unfriend” him on Facebook.
Mr. S was sentenced to 12 months’ incarceration and 24 months’ probation for the sexual interference, and 6 months’ incarceration for the luring to be served consecutively. Additional orders included a DNA order, a lifetime registration as a sex offender, a no-contact order, and limitations on internet use and being near persons under 16 while on probation.
The Court found the mandatory minimum sentence for indictable offences under the luring provision violated Mr. S’ right to be free of cruel and unusual punishment. The Crown argued that although it was not saved by section one of the Charter, that the court should read in a 90-day minimum sentences. The court disagreed, finding that including a new mandatory minimum would be better addressed by Parliament.
Also see: 2018 BCSC 2044 (Sentencing); 2016 BCSC 2468 (Trial).