Supreme Court says mandatory minimum sentences for child luring unconstitutional

The Supreme Court of Canada ruled Friday that mandatory minimum sentences for child luring are overly broad and can result in sentences that violate the Charter of Rights’ protection against cruel and unusual punishment.

“The mandatory periods of incarceration apply to such an exceptionally wide scope of conduct that the result is grossly disproportionate punishments in reasonably foreseeable scenarios.” the ruling said.

In a six to one decision, with Justice Suzanne Côté partly dissenting, the court ruled on two cases from the Quebec Court of Appeal.

In both cases, the mandatory minimum sentences of one year for an indictment and six months for a summary offence were found to have violated Section 12 of the charter.

Section 12 states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

Despite that ruling, both cases resulted in the guilty parties having longer sentences imposed upon them during their journey through the courts.

In the first case, Maxime Marchand met his 13-year-old victim when he was 22, sent her a friend request on Facebook and remained in contact with the child for two years. The pair met and had “illegal sexual intercourse” on four separate occasions.

Marchand pleaded guilty to one count of child luring and one count of sexual interference. At sentencing, he challenged the one-year mandatory minimum sentence for child luring, saying it violated Section 12.

Marchand’s arguments were successful and he was instead sentenced to five months for child luring, to be served at the same time as the sentence for sexual interference.

Increasing sentences

In the second case, H.V., whose name was covered by a publication ban to shield the victim, pleaded guilty to one count of child luring for sending sexual text messages to the victim over a period of 10 days.

H.V. also challenged as unconstitutional the mandatory minimum sentence of six months under summary conviction for luring.

The judge agreed and imposed a sentence of two years’ probation and 150 hours of community service. 

On appeal, the judge found that mandatory minimum sentences for luring were indeed unconstitutional but changed the sentence to a four month prison term.

At the Supreme Court

In its decision, the country’s top court said that striking down mandatory minimums was about the overly broad nature of the law, rather than any attempt to minimize the offence of child luring.

“The broad reach and range of the offence means that a defined minimum period of imprisonment in all cases will sometimes produce results so excessive as to outrage standards of decency,” Justice Sheilah Martin said, writing for the majority.

“Invalidating the mandatory minimums does not mean that child luring is a less serious offence.

“Based on the distinct and insidious psychological damage luring generates, in some cases the appropriate penalty for child luring will be imprisonment for a period equal to or longer than that set out in the unconstitutional mandatory minimum sentences.”

While the Supreme Court allowed the appeal in both cases, it changed Marchand’s sentence from five months to one year and required that it be served after the sentence for sexual interference, rather than at the same time.

H.V.’s sentence was kept at the increased four month term.

In her dissenting opinion, Justice Côté said mandatory minimums for luring children for the purposes of committing an offence would “rarely” be grossly disproportionate.

She agreed with the increased sentence given to Marchand and said in H.V.’s case she would have changed the sentence from four months to the mandatory minimum of six months.