Sexual interference, Breach of a probation order

R. v. J.S.M.

A publication ban applies. The offender is not named.

  • Below the Crown's ask
  • On release at the time

Sentence and the Crown's position

Crown asked8 years in custody1
Judge imposed4 years plus 1 year plus 6 months consecutive (5 years 6 months), less 1 month remand credit: 5 years 5 months net1
915 days less custody than the Crown asked

What the law allows

Maximum14 years
Crown asked8 years in custody
Judge imposed5 years and 6 months in custody
Defence asked3 years in custody
Minimum1 year struck down
For sexual interference (CC 151), the Criminal Code currently allows up to 14 years when the Crown proceeds by indictment, with a mandatory minimum of 1 year that courts have struck down as unconstitutional. The sentence imposed is 39% of the maximum. Read the section.

The offender was found guilty after trial of two counts of sexual interference involving two complainants under 16, committed in 2020 while he was on probation for a 2018 sexual assault, and of breaching that probation order. The Crown sought five years plus three years consecutive on the sexual interference counts; the defence sought a federal sentence of three to three and a half years. Judge Atwood imposed consecutive terms of four years, one year and six months, less one month's remand credit, for a total of 5 years and 5 months, giving primary consideration to denunciation and deterrence under Friesen.

In the judge's words

This results in a total sentence of 5 years and 5 months, which I do not consider unduly long or harsh; I find it in line with comparator sentences.

1

The record

Convicted of
Prior convictions
1 prior conviction, 1 violent1
At the time of the offence
On probation1
Defence asked for
3 years in custody1
Mandatory minimum
Found unconstitutional or not applied under a binding ruling1
Appeal
Not yet checked
Counsel
Crown: Peter Dostal, Josie McKinney
Defence: Pavel Boubnov

Sources

  1. R. v. J.S.M., 2023 NSPC 53 Court decision, CanLII, December 19, 2023[29] The prosecution seeks a sentence of 5-years’ imprisonment for the case involving … and 3 years, to be served consecutively, for the case involving[30] Defence counsel has advocated today for a federal sentence of 3-3.5 years.[32] The one-year mandatory-minimum penalty was found unconstitutional in R v Hood, 2018 NSCA 18, aff’g 2016 NSPC 78.[7] The § 151 offences occurred between 1 January to 15 July 2020. During this time, … was subject to a two-year probation order (JEIN order # 2052459); the order was part of a sentence imposed 1 February 2018 for an earlier sexual offence committed by[42] On 1 February 2018 … received a 12-month prison sentence and a 2-year term of probation for a § 271 offence.[78] This results in a total sentence of 5 years and 5 months, which I do not consider unduly long or harsh; I find it in line with comparator sentences.[77] … a 4-year term of imprisonment in a federal penitentiary. … a one-year term of imprisonment in a federal penitentiary, to be served consecutively to case 8450076. … a 6-month term imprisonment in a federal penitentiary, to be served consecutively to cases 8450076 and 8455935. The Court will grant a 1-month credit for the period of time that … was subject to pre-trial detention.
  2. R. v. J.S.M., 2023 NSPC 53 Court decision, Courts of Nova Scotia

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