Mandatory minimum sentences for child luring unconstitutional: Supreme Court of Canada

In a 6-1 ruling, the Supreme Court of Canada has confirmed that mandatory minimum sentences for child luring are unconstitutional, finding that their application to reasonably foreseeable scenarios would be disproportionate.

The decision in R. v. Bertrand Marchand, 2023 SCC 26 was released this morning and involved two Quebec cases. Both dealt with s. 172.1(1) of the Criminal Code, which makes it an offence for an adult to use telecommunication to communicate with a child for the purpose of committing a crime such as sexual exploitation, sexual assault, incest, and child pornography.

The Director of Criminal and Penal Prosecutions of Quebec highlights the importance of the court’s message on child luring, says Lina Thériault, who acted for the Crown.

“Although minimum sentences for luring have been declared unconstitutional, the Supreme Court clearly states that this does not mean that luring is a less serious offence,” she says. “On the contrary. It reiterates, as it did in 2020 in [R. v. Friesen, 2020 SCC 9], that sexual offences against children should attract increasingly severe and deterrent sentences that reflect the reprehensibility and serious harm involved.”

The SCC found that penalties should be severe and should generally involve consecutive sentences, says Thériault. The SCC also reminded courts to avoid “stereotypical reasoning” that normalizes or trivializes the offence, and using language implying the conduct is less blameworthy than other forms of violence, or that it was consensual, which is “legally impossible,” she says.

“In short, this is now the landmark decision on luring, in terms of the essential elements of the offence, its scope and the sentencing principles,” says Thériault. “In a context where the Internet is becoming a burgeoning domain for predators to target children, without the supervision of their loved ones, the Supreme Court sends a strong message to the courts that it is important to focus on the child and the insidious psychological damage he or she suffers.”

“This decision will serve as a benchmark for all luring cases in Canada, and even more broadly for cases of online sexual exploitation of vulnerable children.”

Child luring is a hybrid offence. The Crown chooses to proceed by indictment, which carries a mandatory minimum sentence of one year’s incarceration, or by summary conviction, the mandatory minimum sentence for which is six months.

The majority found that these mandatory minimums are a violation of s. 12 of the Charter’s protection against cruel and unusual punishment. The majority consisted of Justices Sheilah Martin, Andromache Karakatsanis, Malcolm Rowe, Nicholas Kasirer, Mahmud Jamal, and Michelle O'Bonsawin.

Justice Martin, who wrote the reasons, noted that the appropriate penalty for some cases of child luring will be longer than the mandatory minimum sentence requires. But the “exceptionally wide scope” of conduct that is captured by s. 172.1(1) would include “reasonably foreseeable scenarios” in which the sentences would be “grossly disproportionate,” she said.

Justice Suzanne Côté disagreed with her colleagues that one-year and six-month terms of imprisonment are cruel and unusual, and that their imposition would be grossly disproportionate for reasonably foreseeable scenarios. While child luring is “broad in scope,” it requires a high level of mens rea which ensures that only conduct with a “high degree of moral blameworthiness” and “serious harm or risk of such harm” is captured, said Côté.

The SCC heard the appeals in the cases of Bertrand Marchand and a man identified as H.V. to avoid revealing the identity of the victim. Marchand pled guilty to child luring and sexual interference. He met the victim when she was 13 and he was 22. The two became Facebook friends, kept in contact on social media, met in person, and had sex four times. After her challenged the one-year mandatory minimum, the court agreed with his Charter argument and sentenced him to five months imprisonment. A Quebec Court of Appeal majority upheld the sentence, and the ruling found that the mandatory minimum infringed s. 12 for gross disproportionality. The Crown appealed Marchand’s sentence and the finding that s. 172.1(1) of the Criminal Code is unconstitutional.

H.V. received two years’ probation and 150 hours of community service for sending sexual text messages to a child after he successfully challenged the six-month mandatory minimum sentence. The Superior Court changed his sentence to four months’ imprisonment, and ruled that while the mandatory minimum was not grossly disproportionate in his case, it infringed s. 12 and would be grossly disproportionate when applied to reasonably foreseeable scenarios. The Court of Appeal upheld the decision and the Crown appealed to the SCC.

The SCC raised Marchand’s sentence from five months to a year, to be served consecutively with the sentence.