A Port aux Basques man convicted of sexually assaulting a minor is launching a constitutional challenge of the mandatory minimum sentence for the crime.
Russell Edward MacLean, 23, was convicted in the Supreme Court of Newfoundland and Labrador in Corner Brook this past fall for having sex with a 12-year-old girl in 2015.
Twenty-one at the time, MacLean and the girl carried on a sexting relationship via Snapchat for a few months before meeting in Port aux Basques on June 1, 2015 to have sex.
The pair had a sexual relationship, but the girl was not of the legal age to consent to sex.
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His case was called in the Supreme Court on Friday to possibly set a date for a Gardiner hearing, but instead his lawyer — Bob Simmonds of the St. John’s-based Sullivan, Breen, King — put forward that he would be launching an application under Section 12 of the Canadian Charter of Rights and Freedoms.
Lawyer Ellen O’Gorman is assisting with the case.
In a phone interview O’Gorman said the jury could have convicted MacLean on two bases: that he knew how old the girl was and had sex with her anyway or that he didn’t take the steps to find out how old she was.
The purpose of the Gardiner hearing would have been to determine which it was.
Since the last appearance there have been discussions with the judge and Crown on the issue.
“What the jury determined at the end of the day is that the Crown proved that he was guilty of not taking all the reasonable steps to determine that she was of age to consent,” O’Gorman said. “The jury did not determine that he knew that she was 12 years old and slept with her.”
Regardless of how the conviction was decided there is a mandatory minimum that applies for sentencing and that’s one year in jail.
O’Gorman said the plan is to argue — based on the facts that he didn’t do what he should have done, didn’t know how old she was, and should have done more to find out — that a year in jail for a person like MacLean with no criminal record or no history of violence is grossly disproportionate and that’s the constitutional standard.
The Crown can ask for more than minimum and O’Gorman said the defence doesn’t know yet what the Crown plans to seek or what it will offer as what it considers an appropriate sentence, just that it should be less than a year.
She said before the mandatory minimum came in in 2012 there were cases of house arrest for similar crimes. She says there have been recent decisions in other provinces that have found this particular mandatory minimum sentence unconstitutional.
Now that MacLean will be making a challenge on the constitutionality of the sentence his defence has to give notice of the application to the federal Crown.
The matter will be called again on April 5 for status.
