The Supreme Court of Canada ruled 6-1 on Friday that the mandatory minimum sentence for child luring is unconstitutional as it violates the right against cruel and unusual punishment under Section 12 of the Canadian Charter of Rights and Freedom.
The judgment arose out of two separate cases of child luring, one with a sentence of five months’ incarceration and the other with two years of probation and 150 hours of community service. In both cases, the question was whether the mandatory minimum sentence (imprisonment of one year and six months, respectively), would amount to cruel and unusual punishment for being “grossly disproportionate” to the imposed sentence. On appeal, the Crown asked the Supreme Court to find it constitutional.
The majority judgment considers hypothetical offenders could plead mitigating factors including mental illness and age. In these scenarios, the majority believes, intermittent sentences and conditional discharge are sufficient to provide for deterrence without causing disproportionate harm to the offenders. It follows that a mandatory minimum sentence could be too harsh in the scenarios that exposed the representative offenders to aggravation of illness or victims of bullies, adult prison gangs, and segregation placements.
The majority also notes that the offence of child luring under Section 172.1(1) of the Criminal Code has a wide net, including communication with the victim by use of any telecommunication platform and a range of illicit purposes with various degrees of moral culpability. The wide breadth of the offence further provides for the constitutional infirmity of mandatory minimum sentences. Accordingly, the majority finds that the mandatory minimum sentence goes beyond what is necessary to deter child luring and strikes it down. Judges still have the discretion to assign lengthier sentencing when necessary.
Dissenting, Justice Suzanne Côté said that denunciation and deterrence must be prioritised in cases involving sexual violence against minors. She did not agree with the majority that intermittent sentences and conditional discharge are fit and appropriate. In particular, she disagreed that age and mental illness would automatically render mandatory minimum sentences grossly disproportionate, without giving regard to the gravity of the offence or the surrounding circumstances. She recognized that the application of mandatory minimum sentence might be disproportionate in some cases, but it does not provide a sufficient ground for the court to declare it unconstitutional. She iterated that Parliament has the autonomy to prioritise denunciation and deterrence, as long as it does not completely exclude rehabilitation.
