Court to consider Charter application prior to Northern Peninsula man’s sentencing

CORNER BROOK, N.L. — The sentencing hearing for a Northern Peninsula man has been delayed as the court considers whether or not a minimum mandatory sentence of one year in jail would be a violation of his Charter rights.

The man, whose identity is covered by a publication ban because the victim is his grandson, was convicted of sexual interference in the Supreme Court of Newfoundland and Labrador in Corner Brook on Dec. 2.

Section 12 of the Canadian Charter of Rights and Freedoms provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The issue of whether or not it applies in this case was raised by Justice Daniel Boone prior to the man’s sentencing hearing. That prompted the man’s lawyer, Robby Ash, to file an application seeking a hearing on the issue.

When the matter was called Jan. 27, Boone said the issue is an important one and had to be dealt with prior to sentencing.

He said this particular mandatory minimum sentence has been the subject of appellate review in six jurisdictions in the country and six appellate courts unanimously decided it offends Section 12 of the Charter.

The question was also raised in the provincial court here in December 2018 when Judge Wayne Gorman was asked to consider if the mandatory minimum sentences of one year for Internet luring, six months for transmitting explicit sexual material and one year for accessing child pornography would be a violation of Oral Clarke’s Charter rights.

Clarke had been found guilty of four counts of Internet luring, and single counts of transmitting explicit sexual material to a child and accessing child pornography.

Gorman found the mandatory minimums did not violate the Charter on the luring and transmitted charges, but it did on the accessing child pornography charge.

Clarke was eventually sentenced to eight years. It was his third conviction on similar type offences.

In the Northern Peninsula man’s case, Boone said even if the Crown is able to convince the court a sentence higher than the mandatory minimum should be imposed, it can’t ignore this question that the constitutionality of the mandatory minimum needs to be dealt with on sentencing.

Ash is to file his briefs on the issue by Feb. 7 and the Crown has until Feb. 12 to file its response.

A hearing has been set for Feb. 13-14, with the expectation that Boone will hear arguments on the application, provide his decision and move on to the man’s sentencing hearing.

Boone said it was an unfortunate development, but it cannot be ignored or dealt with in any other way.

In a separate trial held last year, the same man was acquitted in December of offenses of a sexual nature alleged to have been committed against three of his granddaughters. He remains free on a recognizance, pending the outcome of his sentencing.

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