The Supreme Court of Canada has struck down a one-year mandatory minimum penalty for adults who use the internet to lure children into sexual activity. It was the latest of several minimum penalties that have fallen to the court’s use of “reasonably foreseeable” offenders – imaginary or hypothetical individuals for which the minimum sentence would shock the public’s conscience.
Ruling in the case of two offenders from Quebec, the court sent a dual message: To the federal government, it said mandatory minimum sentences for offences such as child luring that capture a wide range of conduct, some very serious, some less so, are vulnerable to being found unconstitutional and struck down. And to judges it said: Be tougher in sentencing than you have been in the past with those who commit sexual violence against children, now that the terrible damage they cause is understood.
Mindful that the two messages seem contradictory, the court’s majority said Friday in the 6-1 ruling: “There is no incongruity between affirming the severe wrongfulness and harms that often accompany child luring offences and finding the mandatory minimums ascribed to these sentences unconstitutional.”
The court’s focus on how sexual violence harms children was praised by the Barbara Schlifer Commemorative Clinic, which intervened in the case. “Overall, we are pleased with how the Supreme Court has centred the experiences and the dignity of survivors in this decision,” lawyer Neha Chugh said.
Eric Gottardi and Caroline Senini, lawyers representing another intervenor, the Independent Criminal Defence Advocacy Society, said the court’s “emphasis on individualized sentencing and on the seriousness of offences against children strikes a welcome balance for courts going forward.”
The ruling, written by Justice Sheilah Martin, a former law dean and author in the area of sexual assault law, relies on a controversial principle established by the court in the early years of the 1982 Charter of Rights and Freedoms: that if a law is unjust in one case, it cannot stand.
The court therefore uses examples of “reasonably foreseeable” offenders to decide whether a mandatory minimum penalty is cruel and unusual punishment. Using this approach, the court struck down mandatory minimums of three years for illegal possession of a firearm in 2015, one year for a repeat offence of drug trafficking in 2017 and earlier this year, a four-year minimum for discharging a firearm into an occupied place. In the case of shooting at a house, the court said four years in prison would be an outrage for a hypothetical youth firing a paintball gun.
Little-known outside the legal world, the use of hypothetical cases has outraged some judges. In Alberta, appeal court Justice Thomas Wakeling has said he was “aghast” at and “extremely troubled” by it. In one of the two Quebec cases before the Supreme Court on Friday, an appeal-court judge, in dissent, simply refused to consider hypothetical scenarios. And Supreme Court Justice Suzanne Côté, the lone dissenter on Friday, while accepting the use of hypotheticals, said the scenarios used by the court would be deserving of strong punishment.
One of the two cases before the Supreme Court involved a 22-year-old man, Bertrand Maxime Marchand, who used the internet to contact a 13-year-old foster girl, who lived at times in a rehabilitation centre. Over a two-year period they had sexual intercourse four times. A lower-court judge sentenced him to 10 months for sexual interference, but refused to apply the minimum sentence for luring; instead, she sentenced him to five months, to be served concurrently. She said it was not a “classic” luring case in that the two met initially in person. The prosecution appealed the case all the way to the Supreme Court.
The Supreme Court said the trial judge had made many mistakes, including in the language she used – terms such as “sexual escapades,” which view the crime from the adult’s perspective and minimize the harm to the child. It said Mr. Marchand deserved 12 months for luring in addition to – not concurrent with – the 10 months for sexual interference. As he had already served the 10 months and been released, however, it did not order him back to jail.
Citing the Supreme Court’s 2020 ruling in a case called Friesen, which said judges need to recognize the harm done in sexual violence against children by giving tougher jail terms, Justice Martin said luring does psychological harm: “Victims of luring often feel that they actively participated in their own abuse, which may increase self-blame, internalization and shame.”
But testing the minimum penalty against the case of a reasonably foreseeable offender, Justice Martin borrowed an actual case from Nova Scotia, and tweaked the facts. A teacher in her 20s suffering from bipolar disorder had contacted several students over the internet and met for sexual touching, pleaded guilty and expressed remorse. Justice Martin changed the facts to just one victim, rather than several. In such a case, a 30-day sentence served on weekends would be apt, and a year in jail would be cruel and unusual punishment, Justice Martin wrote.
The second case, H.V., involved a school principal who texted his own niece. In his case, the mandatory minimum was six months. That’s because child luring is a “hybrid” offence: prosecutors can treat it as a summary offence, which is less serious, or as indictable, which is more serious. Justice Martin used a hypothetical case of an 18-year-old male who asks his 17-year-old girlfriend for a nude picture, then sends it to a friend, who doesn’t share it. That crime would deserve a six-month conditional discharge and probation, rather than jail, she said, and struck the minimum down.
Sean Fine