Judge rejects mandatory minimum sentencing in sex case

A provincial court judge has rejected a mandatory minimum sentence of one year for a Wagmatcook man convicted of sexual interference involving a child.

Instead, Judge Peter Ross imposed a five-month sentence on Shawn Jason Paul, 41, ruling the minimum penalty violates Paul’s right under the Charter of Rights and Freedoms that a person not be subject to cruel and unusual punishment.

“I am satisfied that a mandatory minimum penalty, which is more than twice an otherwise fit and appropriate sentence, for Mr. Paul is grossly disproportionate,” Ross said in a written decision released Thursday.

He added that Paul’s charter right is infringed by the oneyear minimum.

The case will now return before Ross Aug.1 when the Crown and defence will present their other sentencing recommendations that could also include probation and other orders that would limit or prohibit Paul’s contact with children.

Paul was charged with sexual assault and sexual interference after an incident in Membertou in June 2014. After the trial, Ross convicted Paul on the interference offence and issued a stay of proceedings on the sexual assault count.

The court was told that Paul was babysitting three children at the time and had consumed between seven and 11 beers.

Another adult entered the home and found Paul asleep on the couch and asked the children to wake him up. A twoyear-old child was attempting to wake Paul when he lifted her off the floor and pulled the child into his body.

According to the evidence of the witness, Paul placed the child’s stomach area against his groin and began to rub himself against the child. The witness described it as dry humping — simulating sexual intercourse without penetration.

The witness further described Paul as being passed-out drunk.

“On the facts before me,” said Ross “the accused’s purpose was momentary sexual gratification. His thinking was clouded by alcohol, or lack of sleep or both.”

He said the actions of Paul were shocking and one cannot help but wonder if they are indicative of other behaviours or propensities.

There are conflicting opinions on the effectiveness of mandatory minimum penalties between those who make the law — members of Parliament — and the courts.

“They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of the sentencing scale,” said the Supreme Court of Canada in a 2015 decision recited in Ross’s final ruling.

Ross also noted that provincial court judges have the authority to determine the constitutionality of a law in cases before them but they do have authority to strike down a law as being unconstitutional. He said they could grant relief under the charter.

The Crown conceded this was a single incident and Ross said sentencing must therefore only examine the conduct that had been proven.