Sexual assault of a person under 16
R. v. E.C.S.
A publication ban applies. The offender is not named.
- Below the Crown's ask
- No jail for a violent offence
Sentence and the Crown's position
A conditional sentence is served in the community, usually under house arrest. It counts as no custody here.
What the law allows
The offender pleaded guilty to two counts of sexual assault on boys aged 13 or 14, proceeded with summarily. The Crown sought the mandatory minimum of six months on each count, consecutive, for one year in jail. Judge Burrill found the six-month mandatory minimum under s. 271(1)(b) grossly disproportionate in this case and imposed a six-month conditional sentence followed by three years of probation, citing the offender's diminished moral culpability due to cognitive deficits and deteriorating mental condition.
In the judge's words
1In this case, I have concluded that an appropriate range of penalty for Mr. … is not something that would approach five months, as the Crown has suggested at the low end on each of the two charges, but because of the circumstances of the offence specifically and his diminished moral culpability, because of his cognitive deficits, and his deteriorating mental condition, I find that an appropriate range of penalty for each of these crimes could be considered as low as a suspended sentence or a brief period of incarceration plus probation.
The record
- Convicted of
- Sexual assault of a person under 16 (CC 271 U16, 2 counts)
- Prior convictions
- Not recorded
- At the time of the offence
- Not stated1
- Mandatory minimum
- Found unconstitutional or not applied under a binding ruling1
- Appeal
- Not yet checked
- Counsel
- Crown: Saara Wilson
Defence: Jamie Vacon
Sources
- https://www.canlii.org/en/ns/nspc/doc/2021/2021nspc42/2021nspc42.html Court decision
[10] These matters were proceeded with by way of a summary conviction and the Crown relies on the mandatory minimum penalty set out in the Criminal Code of six months for each of the offences. By virtue of the provisions of the Criminal Code, because there are two victims, if the Court imposes the mandatory minimum they have to be consecutive and the period of custody ultimately sought is one year.
[47] I have concluded, after careful consideration of Friesen, of Hood, and of the Kirby decision of Judge Green, that the mandatory minimum of six months under 271(1)(b) of the Criminal Code is representative of cruel and unusual punishment and would be grossly disproportionate
[46] In this case, I have concluded that an appropriate range of penalty for Mr. … is not something that would approach five months, as the Crown has suggested at the low end on each of the two charges, but because of the circumstances of the offence specifically and his diminished moral culpability, because of his cognitive deficits, and his deteriorating mental condition, I find that an appropriate range of penalty for each of these crimes could be considered as low as a suspended sentence or a brief period of incarceration plus probation.
[50] On each of the offences before the Court there will be a three-month sentence of imprisonment to be served in the community, consecutive, for a total of a six-month conditional sentence order which will be served under the following conditions. … [57] The conditional sentence order will be followed by a three-year term of probation.
- R. v. E.C.S., 2021 NSPC 42 Court decision, Courts of Nova Scotia