Crown lawyers again fail to get minimum sentence for sex offences against minors

VERNON – B.C.'s highest court has dismissed an appeal from Crown lawyers arguing that a Vernon man who was spared jail time for sex offences against minors, should have been imprisoned.

The three-judge panel at the British Columbia Court of Appeal dismissed the Crown's appeal for jail time Jan. 11, upholding the sentencing judge's original decision that a sentence of imprisonment would have been unconstitutional under the circumstances, even though Criminal Code mandates a minimum one-year imprisonment for sexual interference.

Dylan Scofield, who was 22 years old at the time of the offence, pleaded guilty to two counts of sexual interference of a person under 16. In March 2018 at the Vernon courthouse, he was sentenced to a six-month conditional sentence served in the community.

Although 22 years old when the offences took place in 2013, Scofield is significantly cognitively impaired, with an IQ of 59.

At the time of the sentencing, Justice Gordon Weatherill stated a one-year minimum mandatory sentence, as per the Criminal Code of Canada, was unconstitutional, citing Scofield's cognitive impairment, among other reasons, for overruling the mandatory sentence. Changes to the Criminal Code in 2012 mandate a minimum sentence of one-year imprisonment.

The Crown appealed to reinstate the mandatory minimum. The three-judge panel agreed a mandatory minimum sentence would be unconstitutional, but disagreed with Weatherill's six-month conditional sentence substitution was not long enough.

According to court documents, Scofield had multiple sessions of consensual sexual relations with two 15-year-old girls over a period of six months, which included unprotected intercourse.

In his original sentencing, Justice Weatherill said a one-year minimum mandatory sentence was "grossly disproportionate to what is fit and proportionate," adding it would be a "cruel and unusual punishment" which would violate Charter rights.

The Crown stated in the appeal that Justice Weatherill had "imposed a demonstrably unfit sentence," and asked for a sentence of imprisonment for one year.

Although the criminal code establishes a person under 16 years old cannot legally consent, a number of exceptions apply if the victim is over 14 years old, the complainant is less than five years older and not in a position of trust or authority towards the complainant. Justice Weatherill stated that although Scofield was 22 he was "intellectually much younger" with the "same or even less mental maturity as the complainants." Justice Weatherill states there is no evidence that Scofield treated either complainant in a "malicious, abusive, or otherwise harmful way," adding "I struggle to see how Mr. Scofield remains any threat to society."

The Crown in its appeal said that although these facts are relevant to determining a fit sentence, Justice Weatherill placed too much emphasis on them, therefore, failing to "properly assess the seriousness of the offences." The appeals court said Weatherill placed "unreasonable weight" on Scofield's cognitive impairment and points to the fact Scofield deleted text messages with the victims to ensure his parents did not find out about the relationships. 

They called it a “rare case” in which a community service order can “satisfy the principles of sentencing."

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