Defence opposes registration order
Stephen Molloy, 32, of Waasis, admitted to sexual assaulting woman, wrecking her phone
The prosecution and defence were on the same page Thursday in recommending a community-based sentence for a Waasis man who had sexual contact with a woman without consent.
Where the two sides differed was on whether he should have to register as a sex offender for the next 10 years.
Stephen Molloy, 32, of Waasis Farm Road, previously pleaded guilty to summary counts of sexual assault and mischief causing damage, and he was back in Fredericton provincial court Thursday for a sentencing hearing.
Court previously heard Molloy had penetrated a woman’s vagina with his fingers and performed oral sex on her, both without her consent. After the woman became upset, he damaged her cellphone.
The crimes occurred in Penniac on June 1, 2022.
There’s a court-ordered publication ban in effect protecting the victim’s identity.
Prosecutor Matthew Paik said the Crown and defence were offering a joint recommendation on sentence: a 14-month conditional sentence.
The first eight months of the sentence would be served under house arrest, he said, and during the remaining six months, Molloy would be subject to a curfew.
Paik said the offender would be barred from any contact with the victim during that time and must abstain from alcohol and other intoxicants.
The conditional-sentence order would be followed by a one-year term of probation, during which the no-contact condition would remain in effect, he said.
Defence counsel Sabrina Winters said her client accepts those sentencing recommendations.
She defended the community-based sentence, noting the conditions and its length send the right message of deterrence.
“It has some bite to it,” Winters said.
Where the two sides differ is on the necessity of a court order under the Sex Offender Information Registration Act (SOIRA), she said.
Changes to the Criminal Code
The defence lawyer said while the Criminal Code of Canada directs that a SOIRA order be imposed as a default position, the Code notes one isn’t mandatory.
Recent revisions to the Criminal Code allow a court to forgo a SOIRA order if certain conditions are met, Winters said, and she argued they were in Molloy’s case.
Section 490.012 of the Code a court should impose a SOIRA order “unless the court is satisfied the person has established that there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders.”
Winters noted the facts of her client’s case aren’t as serious as some other sexual assaults the courts see, pointing out he was charged with a summary count, not a more serious indictable charge.
The victim in this case wasn’t a minor, she said, and Molloy has no prior criminal history, nor is there any indication of a proclivity for such crimes or a risk of recidivism.
Furthermore, the defence lawyer argued, the crime in this case didn’t represent intimate-partner violence, as her client and the victim weren’t in a relationship.
“I think I disagree it’s not intimate-partner violence,” said Judge Natalie LeBlanc.
Whether two people are in an ongoing, long-term relationship or having a one-time encounter, she said, there’s still an intimacy at play that makes offences in such circumstances a violation of a partner’s trust.
Winters said Molloy presents with a positive pre-sentence report, has a supportive partner and family support, and he’s the primary caregiver for his young daughter.
“There could be a significant impact on his daughter,” she said.
A SOIRA order would likely make it difficult for him to engage fully in his daughter’s life, the defence lawyer said, noting it could raise red flags if he were to volunteer for activities involving his daughter or seek to coach a kids’ sports team, for example, despite the fact his offence didn’t involve children in any way.
She also noted alcohol played a role in Molloy’s crimes, and he’s since worked to address that.
“He’s made changes in his life so he wouldn’t find himself in that position again,” Winters said.
Her client has been subject to conditions since his arrest in the summer of 2022 and hasn’t breached them once.
LeBlanc pointed out the changes to the Criminal Code on exempting an offender from a SOIRA order, they’re not even included in the most recent copies of the printed version of the legislation used in the courts and by lawyers.
Key case from Alberta
Winters cited a couple of cases from other jurisdictions, particularly a precedent out of the Court of King’s Bench of Alberta, the King v. CRN issued just earlier this month, which pertained to a man who sexually assaulted an intoxicated woman for whom he was serving as a designated driver.
She noted in that case, the offender had oral and vaginal sex with the victim without consent.
In the CRN case, Justice Eleanor Funk wrote that “ a SOIRA order in these circumstances bears no connection to SOIRA’s purpose and would be grossly disproportionate to the public interest,” and she exempted the offender from it.
The judge in that instance allowed the exemption even after imposing a two-year prison term for the sexual assault.
But Paik countered that Molloy’s case differs from CRN. The Alberta case involved an indictable offence, he said, meaning the offender there would have been subject to a 20-year SOIRA order.
Molloy is only looking at a 10-year order for his summary offence, the prosecutor said, and that would be less onerous.
Furthermore, Paik argued, the CRN case involved an offender who was involved in athletics, and the defence argued a SOIRA order could affect that negatively.
Funk specifically noted in her ruling that such factors “do not establish a gross imbalance between the impacts on [the offender] and the public interest in granting an order. Instead, these are the types of impacts that many offenders would experience.”
LeBlanc reserved her decision on sentence, noting she wanted time to review the precedents filed with the court and to consider the arguments.
“This is brand-new law,” she said, referring to the recency of the charges and the CRN case.
The judge said she’d render her decision on Molloy’s sentence and the SOIRA issue Feb. 16.
Don MacPherson can be contacted at ftonindependent@gmail.com.