NWT judge quashes child sex assault mandatory minimum

The mandatory minimum sentence for offenders who have sex with a person under the age of 16 has been quashed by the territory’s most senior judge.

The ruling, by Supreme Court Chief Justice Louise Charbonneau, came last week. The federally mandated minimum faced a constitutional challenge during the sexual assault trial of a man who had relations with two underage girls in Fort Resolution.

Her ruling did not affect the sentencing of Dalton Lee Lafferty, 25, who received a three-and-a-half-year term for two counts of sexual assault on girls under the age of 16. However, the decision does set a precedent for future cases in the territory.

“I have concluded that the mandatory minimum for this offence does contravene the charter,” said Charbonneau, siding with an earlier argument made by defence lawyer Charles Davison.

“I understand that this may have an impact on other proceedings,” said the judge.

Charbonneau is preparing a full written decision explaining the ruling.

“However … my decision on the charter will have no real impact on Mr Lafferty’s case, as both Crown and defence acknowledge the sentence that should be imposed in this case is beyond the mandatory minimum,” she noted.

Lafferty’s charges stemmed from events starting in the summer of 2017 in Fort Resolution.

The first victim was 14 years old when she met Lafferty while walking around the community. He offered her alcohol.

“They drank two mickeys of vodka together. Later that evening, they had sexual intercourse together,” said Charbonneau in court on August 20.

The second victim, also 14, was in a relationship with Lafferty for three months – including the time he had intercourse with the other girl.

Sometimes he wore a condom, sometimes he did not, the court heard.

On one occasion he threw her to the ground, got on top of her and choked her, said Charbonneau.

‘Use that potential for good’

Two preliminary hearings were held, at which the victims had to testify. Jury trials were scheduled for last fall.

However, Lafferty subsequently changed his plea to guilty and has been in custody since breaching his bail conditions for drinking alcohol and contacting one of the victims.

Lafferty, who is Métis, did not have a prior criminal record.

An image of Dalton Lee Lafferty uploaded to Facebook.

He faced “very difficult circumstances growing up,” including violence and alcohol abuse in the home, the court heard. Lafferty was sexually abused “by various people” and was eventually apprehended by social services. He was then physically abused by his foster father.

Lafferty started drinking alcohol at the age of 12. When his mother eventually stopped drinking completely, he moved back in with her. They moved to Fort Smith when he was 18, where he met an older man who became a father figure to him, the court heard. He moved in with that man and his wife, where his life was more positive. He started coaching soccer, for example.

“The best outcome for Mr Lafferty and his community will be for him to find a way to develop and use that potential for good things and for constructive things,” said Charbonneau. “He could help others through their struggles because he understands what it means to struggle.”

However, statements Lafferty made according to a pre-sentence report concerned the judge. For example, she said, Lafferty does not understand the concept of the age of consent, and maintains his interaction with the victims was consensual.

“When asked how the victims may be feeling, he responded that they are probably feeling bad because they got him incarcerated,” said Charbonneau, adding Lafferty stated he feels wrongly imprisoned for his crimes.

At his sentencing hearing, he told Charbonneau he now understood what he did was wrong.

Lafferty has amassed a total of two years of pre-trial credit, so he will have 1.5 years left to serve of his 3.5-year overall sentence.

During that time, he can have no contact or communication with either of the victims. He may not be near children for two years, except for his own or those of anyone he might be in a relationship with. He can also apply to have the order varied if he decides to coach youth.

He will be banned from owning firearms for 10 years. A DNA sample will be taken. The length of time he will spend on the national sex offenders’ registry was still being argued regarding its constitutionality, and is to be decided at a later date.