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The province argues that judges should consider the effect on Indigenous victims when assessing whether the obligatory minimums are 'cruel and unusual' under the Constitution.iStockphoto/Getty Images/iStockphoto

Mandatory minimum sentences need to be preserved to protect children who are vulnerable to sexual abuse, as the obligatory sentences are struck down unevenly around the country, the British Columbia Attorney-General's department has told the Supreme Court of Canada.

Adults who pay for sex with minors in B.C. are now eligible for absolute and conditional discharges, suspended sentences and house arrest, the criminal appeals division of the provincial A-G's department says in a written filing.

"For an offence based on the active sexual objectification of children, this represents a serious discrepancy in enforcement between British Columbia and other jurisdictions in Canada," the criminal appeals division says.

The province argues that judges should consider the effect on Indigenous victims when assessing whether the obligatory minimums are "cruel and unusual" under the Constitution. The Attorney-General's department says Indigenous youth are at particular risk of sexual exploitation, at times from their own relatives.

The department is asking the Supreme Court to hear an appeal in a case in which a 46-year-old Indigenous man was convicted of paying his 16-year-old niece $100 for a sexual act. His niece was addicted to cocaine and wanted the money to buy drugs. Last July, the B.C. Court of Appeal, the province's highest court, ruled the mandatory six-month sentence "cruel and unusual punishment" under the Constitution, citing its impact on Indigenous offenders. That minimum sentence no longer applies to anyone, Indigenous or non-Indigenous, in the province. The court sentenced the uncle to nine months of house arrest.

Judges in B.C. and elsewhere have struck down at least four mandatory minimum sentences involving guns and sex crimes because of their impact on Indigenous offenders. Under the federal Criminal Code, such offenders are entitled to special consideration in sentencing.

The request for the appeal comes as the National Inquiry into Missing and Murdered Indigenous Women and Girls conducts hearings around Canada. The inquiry says that young aboriginal women are five times as likely to die of violence as non-aboriginal young women.

The B.C. case is one of at least 25 across Canada in which mandatory minimum jail terms involving sex crimes against children, and drugs and gun offences have been struck down, leaving a patchwork of sentencing rules, a Globe and Mail review found this week.

If the Supreme Court hears the appeal and overturns the ruling, it would restore the mandatory minimum sentence for paying for sex with a minor in B.C., and confirm the minimum sentence's constitutionality for the rest of the country. But the unevenness would remain for other mandatory minimums. Another mandatory minimum involving the offence of internet luring was struck down in Ontario, and the Supreme Court is considering whether to hear a Crown appeal.

Eric Purtzki, a Vancouver lawyer representing the convicted man in the B.C. case, known only as J.L.M. to protect the victim's identity, declined to comment while the case is before the court. His reply material filed with the Supreme Court did not directly address the issue of special consideration for Indigenous victims.

In its filing with the Supreme Court, the B.C. A-G's department cites an estimate that the number of sexually exploited aboriginal youth in the province ranges from 14 per cent to 60 per cent, depending on the community. The average age of exploited youth is 15, with some as young as 11. Its source is a 2001 report by a committee of assistant deputy ministers spanning several government departments.

Saying that Indigenous children are at special risk of sexual exploitation, it also cites a report by the Native Women's Association of Canada in 2014, which highlighted a study "on the role family can play in leading Aboriginal girls into prostitution." That study in turn, was published in 2007, by Anupriya Sethi, in a journal, First Peoples Child and Family Review.

The study by Ms. Sethi is available online and says poverty and dysfunction owing to the history of residential schools is part of the problem. It also says that parts of society, including aboriginal communities, the media and law enforcement, have been unwilling to acknowledge domestic trafficking, "especially of aboriginal girls."

The B.C. Court of Appeal ruling is already being cited in cited by B.C. defence lawyers in pending challenges to other mandatory minimums for sex crimes – sexual exploitation, possession of child pornography and luring a child over the internet – the appeal division told the Supreme Court. It also proved pivotal in a lower-court ruling in B.C. striking down a mandatory minimum jail term for producing marijuana.

An Ontario Superior Court judge also struck down the same minimum and that ruling was accepted and followed by a second Ontario judge at the same level of court, the B.C. government's court filing notes.

The Truth and Reconciliation Commission called on the federal government in 2015 to give judges discretion to opt out of mandatory minimums, because they have increased the proportion of Indigenous people in custody. The federal Liberals promised legislative action nearly 18 months ago but have not undertaken any. The minimum in this case was established by a Liberal government in 2005.

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