A 27-year-old Gitxsan man is going to prison for nine months for sexual interference.
Cameron Alfred appeared before the B.C. Supreme Court in Smithers May 17 for a sentencing hearing after being convicted on Dec. 19, 2018 by Justice James Williams of having sexual intercourse with a 13-year-old girl.
Prosecutor Sabrina Avery argued for a three- to four-year sentence relying heavily on the section of the Criminal Code that deals with principles of sentencing. In serious crimes, such as major sexual interference, she said, the fundamental principles of denunciation and deterrence are paramount.
Alfred’s attorney, Ian Lawson, was going to argue for a conditional sentence, but before the defence could present its submissions, Avery pointed out that in crimes for which a maximum sentence of 14 years or more is prescribed, a conditional sentence is not available.
The Crown
In arguing for three to four years, the Crown cited the 2016 Alberta Court of Appeal case of R v. Hajar.
In Hajar, the court ruled three years incarceration should be the starting point for sentencing judges in major sexual interference cases—i.e., those involving intercourse between adults and persons under the age of 16.
The court also rejected the term “de facto consent” establishing the defence of consent was not available to an accused because even in a romantic relationship in which the child appears to be a willing participant, the child cannot give true consent. The court ruled such a relationship is inherently exploitive and harmful.
Avery noted that Alfred, who was 26 at the time, had, on at least two occasions between Aug. 1 and Dec. 31, 2017, admittedly engaged in sexual intercourse with the 13-year-old, who cannot be named due to a publication ban.
The age difference and the fact the interference took place on multiple occasions should be considered aggravating factors in sentencing, the prosecutor said.
The Crown acknowledged mitigating circumstances were: that Alfred has no prior criminal record; that he has been gainfully-employed throughout his adult life; that he is an Indigenous person, who himself was a victim of abuse as; and that he has participated in counselling, and is willing to seek further treatment.
However, Avery said, referencing a pre-sentence report, the mitigating circumstances were somewhat muted by the fact Alfred showed limited insight into his responsibility and the negative impact on the victim, whether or not she perceives it as such.
The defence
In his submissions, Lawson criticized Parliament for taking discretion out of the hands of judges and focussed on another element of the principles of sentencing, that a sentence must be proportional to the gravity of the offence and the moral blameworthiness of the offender.
He argued the court had heard from the victim herself that she had initiated the relationship and her only concern was that her actions would cause harm to Alfred.
Justice Williams admonished the defence saying the persistence of Lawson and his client in attempting to use the consent defence amounted to “blaming the victim.”
“There’s a mountain of authority that stands against you,” Williams said.
At one point, the judge invited Lawson to appeal his eventual sentence.
Nevertheless, Lawson insisted while his client was “dumb” to get involved with an underage girl, that his moral blameworthiness was at the lowest end of the scale, saying there was no element of predation on the part of his client.
He cited a litany of cases in which adult predators received little or no jail time and insisted the court had the authority to give Alfred a sentence that did not involve incarceration.
Alfred’s blameworthiness was also diminished, Lawson argued, by the seminal Supreme Court of Canada Gladue and Ipeelee decisions, which require judges to take into consideration the socioeconomic impacts of colonialism on Indigenous persons during sentencing.
The Crown also acknowledged Alfred’s heritage, but argued in cases of major sexual interference, Gladue and Ipeelee “must fall second to deterrence and denunciation even for aboriginal offenders.”
The sentence
In arriving at the sentence of nine months in prison, Justice Williams said given the mitigating circumstances and Gladue factors, the Crown’s request was excessive and would be harmful to Alfred, who, in the judge’s estimation was a good candidate for rehabilitation.
Nevertheless, he said, given the primary consideration of denunciation and deterrence, society was best-served by a period of incarceration.
In addition to jail time, Alfred will serve two years probation; is subject to a mandatory DNA order and inclusion in the national sex offender registry; is banned from possessing firearms for 10 years, except of the purposes of hunting for food; must not communicate with the victim; and must have no contact with persons under the age of 16.
After passing the sentence, Williams addressed Alfred directly saying the sentence was designed to help him re-integrate and become a productive member of society.
“Whether you know it or not, you’ve dodged a big bullet here,” the judge said.
Lawson said there would likely not be an appeal.
“The real story is not what happened here with Mr. Alfred, that’s routine,” Lawson said. “The real story is to look [at] who’s in Prince George [Correctional Centre] and all the jails. By population, per capita, we are far over-incarcerating, far beyond any other racial group, aboriginal people.
“The Supreme Court of Canada, as I told the judge, is very clear, crystal clear, that the reason for that is the destruction of that community over generations. It’s not a surprise that we have a higher proportion of offenders in that population. The Supreme Court of Canada has said repeatedly, we should stop jailing aboriginal offenders.
“I don’t mean this as a criticism of this judge, but you heard my submission, which is that we have to stop.”