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IQALUIT, Nunavut — A Nunavut judge has ruled that the mandatory minimum sentence for inviting a person under the age of 16 years to sexual touching violates Canada's Charter of Rights and Freedoms. 

A 27-year-old man, referred to as SS in the ruling, pleaded guilty to the offence that carries a mandatory minimum penalty of 90 days.

During sentencing, his defence lawyer challenged that minimum as cruel and unusual punishment contrary to the Charter. He instead sought a 90-day conditional sentence, sometimes referred to as house arrest. 

The Crown, however, opposed the Charter application and argued for a sentence of 120 days in jail followed by one year of probation.

In a written decision, Justice Christian Lyons found a 90-day jail sentence was not grossly disproportionate in this particular case. He did, however, find that in some circumstances it "would outrage standards of decency to the extent that reasonable members of the public would find the punishment abhorrent or intolerable." 

Lyons pointed to several hypothetical scenarios presented by the defence, such as a person with a cognitive disability asking someone under the age of 16 to touch them sexually or a 20-year-old Indigenous woman with no criminal record inviting a 15-year-old who she believed to be over 16 to kiss or caress her. 

He said while the Crown had argued those circumstances were "far-fetched, remote and not reasonably foreseeable" they are real-life scenarios that occur in Nunavut. 

"In my view, the hypotheticals proposed in this case are reasonable, and the appropriate sentences in such cases, or similar cases where a first-time youthful Indigenous offender invites sexual touching of a minor nature, would generally be either a conditional discharge, or a suspended sentence," Lyons wrote.

"It is easy to imagine scenarios in Nunavut where a 20-year-old invites a 15-year-old to relatively minor sexual touching, or similarly, a 19-year-old invites a 14-year-old, or an 18-year-old invites a 13-year-old," he wrote. 

In the case of SS, Lyons imposed a 120-day conditional sentence followed by one year of probation. Conditions of the sentence include having no contact with the victims and abstaining from the use of intoxicating substances. 

Lyons said he decided not to order SS to comply with the sex offender registry as he said SS is likely at low risk to reoffend. 

The decision indicates the offence occurred in a small Nunavut community on the morning of July 21, 2021. SS had been drinking with a couple in their home at the time and was intoxicated when he entered a bedroom where the couple's 13-year-old daughter and her 14-year-old friend were.

He asked the girls to have sex with him and offered them alcohol and cigarettes, which they refused multiple times. A cellphone video was captured of him also offering the girls $35 to remove their pants, which they refused. 

Lyons noted that SS has no criminal record, pleaded guilty to the offence, helps with community search and rescue, and provides food for his family and community members by hunting and fishing. He said the man also appears to have made better life choices since being charged, including quitting drinking.

Lyons noted, however, that the offence is serious and Indigenous women and girls face heightened risk of violence, with Nunavut youth experiencing sexual abuse at a rate 10 times the national average.

"A clear message needs to be sent that there will be real and significant consequences for people who drunkenly invite children to have sexual intercourse, especially when they offer inducements such as money, alcohol or cigarettes, to get them to take up the invitation," he wrote.

This report by The Canadian Press was first published June 14, 2023.

— By Emily Blake in Yellowknife

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This story was produced with the financial assistance of the Meta and Canadian Press News Fellowship.

The Canadian Press