The Supreme Court of Canada ruled that mandatory minimum sentences for child luring are too broad, which could lead to sentences that violate citizens’ protection against cruel and unusual punishment under the Canadian Charter of Rights and Freedoms.
“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,” said the ruling.
The court ruled on two cases from the Quebec Court of Appeal in a six-to-one decision.
Justice Suzanne Côté was the only one to dissent.
The court ruled that in both cases, mandatory minimum sentences of one year for an indictment and six months for a summary offence violated of Section 12 of the Charter, which states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
However, the guilty parties in both cases were given longer sentences despite the ruling.
The first case involved Maxime Marchand, who met his victim when she was only 13-years-old. Marchand was 22 at the time when he sent her a friend request on Facebook and the two maintained contact for two years. They eventually had “illegal sexual intercourse” on four separate occasions.
Marchand was charged with one count of child luring and one count of sexual interference, for which he pleaded guilty.
He was initially sentenced to the one-year minimum sentence for child luring, however he challenged the sentence, arguing that it violated Section 12.
Marchand won the challenge and was instead sentenced to five months for child luring. He served the five months at the same time as his sentence for sexual interference.
The second case involved a defendant known as H.V., whose identity was not disclosed to the public for the protection of their victim. H.V. pleaded guilty to one count of child luring for sending sexual text messages to the victim over a 10 day period.
H.V. also challenged their mandatory minimum sentence of six months for luring as unconstitutional under Section 12. H.V. was granted two years’ probation and 150 hours of community service in lieu of the challenge.
The judge found mandatory minimum sentences for luring to be unconstitutional on appeal and changed the sentence to a four month prison term.
The Supreme Court’s decision to scrap mandatory minimums was to prevent what they believed to be an overly broad interpretation of the law, as opposed to an effort to diminish the serious 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,” said Justice Sheilah Martin, 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.”
Both cases were granted an appeal by the Supreme Court, however Marchand’s sentence was changed from five months to one year and required that it be served after his time given for sexual interference, instead of being served at the same time.
H.V.’s sentence remained at the increased sentence of four months.
Justice Côté said that mandatory minimums for luring children would ‘rarely’ be used disproportionately in her dissenting opinion.
While she agreed with Marchand’s increased sentencing, Côté said she would have raised the sentencing for H.V. to the mandatory minimum of six months, instead of the four month sentence.
