Sex-crime sentence is unconstitutional - defence
Everett Thomas Brooks, 38, of Fredericton, was found guilty after trial of inviting a minor to touch him for a sexual purpose
Counsel for a Fredericton man convicted of propositioning a teenage girl sexually by text message more than two years ago argued Tuesday a mandatory jail term violates his client’s Charter rights.
Everett Thomas Brooks, 38, of Maliseet Drive, was back in Fredericton provincial court Tuesday for the continuation of a sentencing hearing for a sex crime.
He was found guilty after trial last year of a summary count of inviting a 14-year-old girl to touch him for a sexual purpose with a part of her body Dec. 10, 2020.
The victim’s identity is protected by a court-ordered publication ban.
Evidence at trial showed Brooks contacted the girl through text messaging, seeking to engage in sexual contact with her.
The crime falls under Section 152(b) of the Criminal Code of Canada, and that charge carries a mandatory minimum jail term of 90 days.
But defence lawyer Alex Pate argued Tuesday such a jail sentence in these circumstances would be grossly disproportionate to Brooks’ crime, so much so that would amount to a violation of his client’s rights under the Charter of Rights and Freedoms.
He noted there have been instances in which the constitutionality of the mandatory sentence for the indictable version of the charge, Section 152(a), has been successfully challenged, as well as the constitutionality of Section 151, touching a minor for a sexual purpose.
But there’s a dearth of case law on Section 152(b), the defence lawyer said, adding it seems counter-intuitive for sexual-touching sentencing requirements to be disputable but not invitation to sexual touching.
“It’s difficult to say that 151 is unconstitutional and 152 isn’t,” Pate said.
Among the reasons a 90-day jail term is inappropriate, he argued, is the fact that it doesn’t take his client’s Indigenous heritage into account.
Indigenous offenders are over-represented in jail and prison populations, Pate said, and the courts have been directed to consider that unfortunate reality in sentencing.
Other mitigating factors in the case include Brooks’ lack of any prior convictions for similar offences, his steady employment and extreme remorse.
“He’s even ashamed about what’s happened here,” the defence lawyer said.
At trial, court heard Brooks was intoxicated at the time of the crime, and was so drunk when he was arrested, officers didn’t bother to try to get a statement from him until he sobered up.
Pate said Brooks has since attended Alcoholics Anonymous meetings and has maintained sobriety for an extended period.
He asked the court to consider a conditional sentence to be served in the community.
“I don’t know what society gains by putting Mr. Brooks in jail,” Pate said, noting that a conditional sentence is still considered a jail term under the law, just not served in a traditional incarceration environment.
“It’s a significant sentence … In my view, Mr. Brooks is not a danger to society.”
Crown prosecutor Kathleen Jacobs countered that while the court has to consider mitigating factors and the offender’s Indigenous lineage, it has to balance that with the need to deter others from committing similar sexual offences against children.
She said the Charter challenge is moot, because given the circumstances of the case, 90 days behind bars is an appropriate sentence, regardless of the mandatory-minimum provision of the section.
“We’re dealing with a vulnerable person,” Jacobs said, referring to the 14-year-old, Indigenous girl whom Brooks propositioned.
The prosecutor noted some of the precedents Pate has cited included mitigating factors - such as a lack of a prior criminal history, guilty pleas and youthfulness - that were absent in Brooks’ case.
The defence had cited one precedent that saw a 14-day jail term imposed in a similar case.
“Well, that was 2013,” Jacobs said.
The Supreme Court of Canada has directed lower courts that sentences in cases involving child victims need to increase to deter offenders and society in general from committing similar crimes, she said.
Jacobs told Judge Lucie Mathurin that she can only deviate from the mandatory minimum sentence of 90 days in jail if she finds it “grossly disproportionate,” not just a little excessive.
The judge reserved her decision on sentencing to April 13.
Brooks is free in the community until that time, subject to the conditions of a police undertaking.
Don MacPherson can be contacted at ftonindependent@gmail.com.