B.C.'s appeal court upholds decision striking down mandatory jail for sexual interference

Mandatory jail time for a mentally disabled sex offender "would outrage the standards of most informed Canadians," and is therefore unconstitutional, B.C.'s highest court has confirmed.

High court agrees jail time is 'grossly disproportionate' in case of mentally disabled offender

The B.C. Court of Appeal has called the mandatory minimum sentence for sexual interference grossly disproportionate. (Peter Scobie/CBC)

Mandatory jail time for a mentally disabled sex offender "would outrage the standards of most informed Canadians," and is therefore unconstitutional, B.C.'s highest court has confirmed.

In reasons handed down Friday, three judges at the B.C. Court of Appeal upheld a lower court decision that struck down the mandatory minimum sentence for sexual interference.

Last year, a B.C. Supreme Court judge said the required one-year jail sentence would be a "grossly disproportionate" punishment for Dylan William Scofield, who has an IQ of just 59.

The higher court agreed, setting aside an appeal from Crown prosecutors.

"Although his offences were extremely serious and normally attract a term of imprisonment in excess of the one‑year mandatory minimum, sending Mr. Scofield to prison for one year, given his significant cognitive deficits, would outrage the standards of most informed Canadians," Appeal Court Justice David Harris wrote in a 2-1 ruling.

The appeal court did, however, lengthen the conditional sentence for Scofield, saying the six months handed down by the lower court was not sufficient. Scofield will now spend a year under house arrest.

In partial dissenting reasons, Justice Barbara Fisher said she agreed the mandatory minimum jail term is unconstitutional, but would have increased Scofield's conditional sentence to 16 months.

Offender has 'extremely low' IQ

Now 27, Scofield pleaded guilty in 2015 to two counts of sexual interference against two 15-year-old girls he'd met online. The court heard that he has an "extremely low" IQ and that cognitive testing placed his intellectual function in the extremely low to borderline range.

The Vernon man did not have a criminal record before abusing the two victims and a psychologist testified that he is not generally inclined to pursue underage girls.

The appeal court judges found that a jail term would be grossly disproportionate to Scofield's crimes, but they also took their argument a step further.

Harris offered a hypothetical situation: What if someone who was almost 16 met up at a party with someone who'd just turned 21, and the two willingly fooled around for 10 minutes after a bit of drinking and smoking pot?

That scenario would, technically, meet the definition of sexual interference, and the older person would automatically receive a one-year jail sentence if the matter went to court.

"In my opinion," Harris wrote, "imposing a one‑year mandatory minimum sentence in those circumstances is grossly disproportionate, would shock the conscience of Canadians, and would be cruel and unusual punishment."

The judge said the mandatory minimum should be declared of no effect.

Errors in sentencing

But, in Scofield's case, Harris said B.C. Supreme Court Justice Gary Weatherill had made errors during sentencing. Weatherill had ruled that the severity of Scofield's crimes was mitigated by the fact that he had not been violent, threatening or manipulative with his victims.

But those shouldn't be considered mitigating factors, Harris wrote.

"Each is the absence of an otherwise aggravating factor and, therefore, is not a basis on which to reduce a sentence from what is otherwise appropriate."

He said a one-year conditional sentence would be more fit and appropriate than the six months Scofield received from the lower court.

About the Author

Bethany Lindsay

Journalist

Bethany Lindsay has more than a decade of experience in B.C. journalism, with a focus on the courts, health and social justice issues. She has also reported on human rights and crimes against humanity in Cambodia. Questions or news tips? Get in touch at bethany.lindsay@cbc.ca or on Twitter through @bethanylindsay.