R. v. Bertrand Marchand

R. v. Bertrand Marchand
Collection
Supreme Court Judgments
Date
2023-11-03
Neutral citation
2023 SCC 26
Case number
39935, 40093
Judges
Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle
On appeal from
Quebec
Subjects
Constitutional law
Criminal law
Notes
Case in Brief SCC Case Information: 39935, 40093
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Bertrand Marchand, 2023 SCC 26
Appeals Heard: February 15, 16, 2023 Judgment Rendered: November 3, 2023 Dockets: 39935, 40093
Between:
His Majesty The King and Attorney General of Quebec Appellants
and
Maxime Bertrand Marchand Respondent
- and -
Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, Nunavik Civil Liberties Association, Association québécoise des avocats et avocates de la défense, Barbra Schlifer Commemorative Clinic and Independent Criminal Defence Advocacy Society Interveners
And Between:
His Majesty The King and Attorney General of Quebec Appellants
and
H.V. Respondent
- and -
Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, Association des avocats de la défense de Montréal and Independent Criminal Defence Advocacy Society Interveners
Official English Translation: Reasons of Côté J.
Coram: Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
Reasons for Judgment: (paras. 1 to 174)
Martin J. (Karakatsanis, Rowe, Kasirer, Jamal and O’Bonsawin JJ. concurring)
Reasons Dissenting in Part: (paras. 175 to 232)
Côté J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
His Majesty The King and
Attorney General of Quebec Appellants
v.
Maxime Bertrand Marchand Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Nunavik Civil Liberties Association,
Association québécoise des avocats et avocates de la défense,
Barbra Schlifer Commemorative Clinic and
Independent Criminal Defence Advocacy Society Interveners
‑ and ‑
His Majesty The King and
Attorney General of Quebec Appellants
v.
H.V. Respondent
and
Director of Public Prosecutions,
Attorney General of Ontario,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Association des avocats de la défense de Montréal and
Independent Criminal Defence Advocacy Society Interveners
Indexed as: R. v. Bertrand Marchand
2023 SCC 26
File Nos.: 39935, 40093.
2023: February 15, 16; 2023: November 3.
Present: Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
on appeal from the court of appeal for quebec
Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Sentencing — Mandatory minimum sentence — Child luring — Accused persons pleading guilty to child luring — Accused persons challenging constitutionality of mandatory minimum sentences of one year’s imprisonment prescribed for child luring as indictable offence and of six months’ imprisonment for child luring punishable on summary conviction — Whether mandatory minimum sentences constitute cruel and unusual punishment — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C‑46, s. 172.1(2) (a), (b).
Criminal law — Sentencing — Considerations — Child luring — Accused person pleading guilty to child luring and sexual interference — Sentencing judge imposing sentence of five months’ imprisonment for child luring to be served concurrently to sentence for sexual interference — Majority of Court of Appeal upholding sentencing judge’s decision — Whether accused person’s sentence for child luring was fit.
M pleaded guilty to one count of sexual interference contrary to s. 151 (a) of the Criminal Code and to one count of luring a child contrary to s. 172.1(1)(b). M met the victim in person when he was 22 and she was 13 years old. He then sent her a friend request on Facebook and, for the following two years, they were in contact on social media and also met in person, and had illegal sexual intercourse four separate times. At sentencing, M challenged the one‑year mandatory minimum period of incarceration set out in s. 172.1(2)(a) for persons found guilty of the indictable offence of luring a child, on the basis that it was inconsistent with s. 12 of the Charter , which protects against cruel and unusual punishment. The sentencing judge sentenced M to five months’ imprisonment on the count of luring, to be served concurrently to the sentence imposed on the count of sexual interference. The judge found the mandatory minimum sentence infringed s. 12 of the Charter as it would be grossly disproportionate to the fit sentence of five months. The majority of the Court of Appeal upheld both the sentence imposed for luring and the conclusion that the mandatory minimum sentence was unconstitutional. The Crown appeals the fitness of M’s sentence for luring and asks the Court to find the mandatory minimum sentence in s. 172.1(2)(a) constitutional.
V pleaded guilty to one count of luring a child contrary to s. 172.1(1) (a) of the Criminal Code . V sent sexual text messages to the victim over a period of 10 days. At sentencing, V challenged the six‑month mandatory minimum sentence set out in s. 172.1(2)(b) for persons found guilty of the offence of luring punishable on summary conviction, on the basis that it violated s. 12 of the Charter . The sentencing judge imposed a sentence of two years’ probation and 150 hours of community service after finding that the mandatory minimum sentence would be grossly disproportionate to the fit sentence. On appeal, the Superior Court varied the sentence to four months’ imprisonment. The court then determined that the mandatory minimum sentence infringed s. 12 since, although it was not grossly disproportionate to V’s fit sentence of four months, it would be when applied to reasonably foreseeable scenarios. The Court of Appeal upheld that decision. The fitness of V’s sentence is not challenged before the Court. The Crown asks the Court to find the mandatory minimum sentence in s. 172.1(2)(b) constitutional.
Held (Côté J. dissenting in part): The appeal in M’s case should be allowed in part. The appeal in V’s case should be dismissed.
Per Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.: M’s sentence for luring a child should be increased from 5 months’ to 12 months’ imprisonment, and it should be served consecutively, not concurrently, to his sentence for sexual interference. The mandatory minimum sentences for luring a child set out in s. 172.1(2) (a) and (b) of the Criminal Code are inconsistent with s. 12 of the Charter , are not saved by s. 1 and therefore are of no force or effect under s. 52 of the Constitution Act, 1982 .
To protect a range of social interests, namely the vulnerability and exploitation of children facilitated by the internet, Parliament enacted the offence of luring a child at s. 172.1 of the Criminal Code . The offence has three elements: (1) the accused must communicate intentionally by telecommunication; (2) with someone the accused knows or believes is under 18 years of age, and (3) for the specific purpose of facilitating the commission of a designated secondary offence listed in s. 172.1(1) with respect to the underage person. Parliament’s creation of this inchoate preparatory offence that criminalizes communications that precede the perpetration of other designated secondary offences indicates that luring generates harms that are different from those secondary offences and is sufficiently wrongful and harmful to ground criminal liability. Child luring is a hybrid offence that carries a mandatory minimum sentence of one year’s imprisonment if the offender is guilty of an indictable offence (s. 172.1(2)(a)) and of six months’ imprisonment if the offender is guilty of an offence punishable on summary conviction (s. 172.1(2)(b)).
Pursuant to s. 718.1 of the Criminal Code , a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A fit and proportionate sentence must be crafted based on the particular facts of the case and in light of existing legislation and case law. Furthermore, in s. 718.01, Parliament has specifically indicated that in sentencing offences involving abuse of children, including child luring, the objectives of denunciation and deterrence must be given primary consideration. While a judge can accord significant weight to other sentencing objectives, including rehabilitation, the provision limits judicial discretion as a judge cannot give these other objectives precedence or equivalency. In addition to the steps that Parliament has taken to punish the various forms that abuse of children may take, the Court’s decision in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, sets out sentencing principles for sexual offences against children to fully reflect and give effect to the profound wrongfulness and harmfulness of these crimes. Friesen sends the clear message that sentences for these crimes must account for the far‑reaching and ongoing damage sexual violence causes to children, families and society at large.
With respect to the offence of child luring, understanding its wrongfulness and distinct harmfulness is integral to properly assessing its gravity and the degree of responsibility of the offender, as well as to avoiding stereotypical reasoning and the misidentification of aggravating and mitigating factors. Luring is wrongful, as adults take advantage of a child’s weaker position and lack of experience online where they are particularly exposed and helpless, which repudiates the fundamental value of protecting children. Luring invades a child’s personal autonomy, sexual integrity, and gravely wounds their dignity. Even when the only interactions with the child occur online, the offender’s conduct is inherently wrong because it still constitutes a form of sexual abuse.
Furthermore, luring is harmful as it can constitute a form of psychological sexual violence, bringing about serious emotional and psychological harm. It also causes distinct psychological and developmental harms to young victims that differ in two main ways from harms arising from sexual contact initiated in person. First, online communications allow for abusers to abuse remotely and for manipulation and control over time, which can lead to serious and lasting psychological consequences. Second, an offender’s power and effectiveness online lies in the degree to which they can control the victim and manipulate them into engaging with the abuse, which may cause a victim to feel they actively participated in their own abuse, thereby increasing self‑blame and shame. Although identifying the distinct harms of luring is difficult, one way for courts to do so is by differentiating between contact‑driven luring, where the offender’s goal is to facilitate in‑person sexual abuse, and luring that leads to sexual abuse occurring entirely online. Contact‑driven luring is not necessarily more or less harmful than luring that leads to sexual abuse that occurs entirely online. The severity of the harm caused by the online communication will depend on the individual offender, the individual characteristics of the victim, and the unique dynamic between the offender and the victim.
Parliament has consistently raised sentences for sexual offences against children to reflect a growing awareness of their gravity, and to indicate the serious emotional and psychological harms they cause for victims. Given the wrongfulness and distinct harms of luring, this same increasingly punitive trend applies to that offence. Appellate intervention in a sentencing judge’s decision will be justified only if a sentence is demonstrably unfit or if the judge committed an error in principle that impacted the sentence imposed. In M’s case, the sentencing judge committed errors in principle that impacted the assigned sentence of five months’ imprisonment ordered to be served concurrently and that warranted appellate intervention that the majority of the Court of Appeal failed to undertake. Specifically, the judge erred by (1) minimizing the harm caused to the victim by failing to recognize the grooming that did occur, which should have served as an aggravating factor on sentencing; (2) misconstruing the offender’s actions, which caused her to unduly minimize the wrongfulness and harms of the luring offence; and (3) assigning a concurrent sentence for the luring offence. To properly account for the distinct legal interests that the luring offence protects, that is, the vulnerability and exploitation of children facilitated by the internet, the sentences should have been consecutive. Parliament’s legislative initiatives, the distinct harm caused by the online communication, and the aggravating and mitigating factors instead justify a sentence of 12 months’ imprisonment for M.
For a mandatory minimum sentence to be found unconstitutional pursuant to s. 12 of the Charter , it must be so excessive as to outrage standards of decency. Whether the mandatory minimum sentences in s. 172.1(2)(a) and (b) are unconstitutional requires a two‑stage inquiry that involves a contextual and comparative analysis. First, a court must set a fit and proportionate sentence for the individual offenders before the court and possibly other reasonably foreseeable offenders. Second, a court must determine whether the mandatory minimum requires imposing a sentence that is grossly disproportionate to the otherwise fit and proportionate sentence. This involves consideration of the scope and reach of the offence, the effects of the penalty on the individual or reasonably foreseeable offender, and the penalty and its objectives.
While a proper understanding of the wrongfulness and harmfulness of luring will lead to significant penalties in most circumstances, the constitutional analysis under s. 12 of the Charter does not merely ask whether the mandatory minimum is cruel and unusual in common cases. Punishments can be impugned where they infringe the s. 12 Charter rights of a reasonably foreseeable offender. Indeed, the use of reasonably foreseeable scenarios is expressly designed to test the lower end of the spectrum of conduct captured by the offence. As such, when parties raise hypothetical scenarios as part of the adversarial process, a court should not dismiss a constitutional challenge without considering (1) whether the scenario is reasonably foreseeable and, if so, (2) whether the representative offender’s scenario could render the impugned law unconstitutional.
In M’s case, the fit sentence of 12 months’ incarceration mirrors the one-year mandatory minimum sentence. As a result, the minimum sentence is not grossly disproportionate in his circumstances. In V’s case, the six-month mandatory minimum term of imprisonment is not grossly disproportionate to the fit sentence of four months’ imprisonment. Reasonably foreseeable scenarios must therefore be considered to determine whether the mandatory minimum sentences are unconstitutional. For the purposes of the constitutionality analysis for the one‑year mandatory minimum sentence in s. 172.1(2)(a), the first reasonably foreseeable scenario involves a representative offender who is a first‑year high school teacher in her late 20s with bipolar disorder and with no criminal record. One evening, she texts her 15‑year‑old student to inquire about a school assignment. Feeling manic, she directs the conversation to sexual matters. The two meet that evening and participate in sexual touching. The offender does not engage inappropriately with the student again and pleads guilty and expresses remorse on sentencing. For the purposes of the constitutionality analysis for the six‑month mandatory minimum sentence in s. 172.1(2)(b), the reasonably foreseeable scenario involves an 18‑year old representative offender who is in a relationship with a 17‑year‑old. In one text, the offender asks her to send him an explicit photo. She does, and he then forwards that photo to his friend without his girlfriend’s knowledge. This friend, who is also 18, does not transmit this photo, but retains it on his mobile phone.
In addressing the first stage of the s. 12 analysis of setting the fit and proportionate sentence for the representative offender, courts must define as specific a sentence as possible by considering the sentencing objectives set out in the Criminal Code and by examining any aggravating and mitigating factors. A fit sentence for the luring offence committed by the representative offender in the first scenario is a 30‑day intermittent sentence. Such a sentence recognizes the inherent seriousness and potential harms associated with the offence and appropriately denounces the offender’s conduct, while being mindful of her diminished moral blameworthiness and the mitigating factors at play. A fit sentence for the luring offence committed by the representative offender in the second scenario is a six‑month conditional discharge, with strict probationary terms. The offender engaged in a serious breach of the victim’s privacy and dignity that should be condemned by a criminal sanction. However, the significant mitigating factors in this scenario, most notably the offender’s youth and lack of a criminal record, warrant a sentence on the low end of the spectrum.
At the second stage of the s. 12 analysis, the scope and reach of the offence must be examined. Courts should assess how broad a range of conduct is captured by the actus reus and mens rea of the offence and consider the included degree of variation in the offence’s gravity and the offender’s culpability. The actus reus of child luring includes communication with the victim by use of any telecommunication platform. This demonstrates the massive breadth of the luring offence. Regarding the mens rea, the specific intent element — that the accused must communicate with the purpose of facilitating a designated offence — is broad. An accused may impulsively communicate in a sexual manner — and in that moment have the specific intent required — without having taken time beforehand to plan or prepare to execute a secondary offence. The offence therefore captures a wide range of designated illicit purposes with varying degrees of moral culpability. The range of conduct captured by the luring offence is also staggering. The offender need only communicate with an underage person for the purpose of facilitating one of the twenty designated secondary offences which are, amongst themselves, of varying degrees of seriousness and wide in scope. These features of the luring offence further threaten the constitutionality of its mandatory minimum penalties.
Next, in analyzing the effect of the punishment on representative offenders, courts must consider the qualities of the reasonably foreseeable offender, and then evaluate what harm may result from the impugned punishment. Evidence that imprisonment would have significant deleterious effects on an offender should be considered at this stage. In the instant scenarios, the mandatory minimum punishment is alternatively one year’s or six months’ incarceration. The effect of the one‑year mandatory minimum on the first representative offender is harsh, as it would replace a short intermittent sentence with a year of incarceration, and the offender’s individual circumstances, namely her mental illness, would likely make her experience of incarceration perilously grave. The second representative offender is a youthful first-time offender who, holding high rehabilitative prospects, should benefit from the shortest possible sentence proportionate to the offence. In prison, youthful offenders are often bullied, pressured to join adult prison gangs, and are vulnerable to segregation placements. The six‑month mandatory minimum is a far cry from the shortest possible rehabilitative sentence for this offender. These factors indicate the mandatory minimum sentences’ constitutional infirmity.
Finally, turning to the penalty and its objectives, luring is a serious offence that must be punished accordingly. The offence dovetails with s. 718.01 which directs that in imposing sentences for offences involving abuse of children, primary consideration must be given to the objectives of denunciation and deterrence. Parliament’s decision to increase the maximum penalties over the years for the luring offence indicates its view of the gravity of the offence. Parliament enacted s. 172.1 in response to the growth of the internet as a burgeoning domain for predators to target children. Child luring not only lays the foundation for dangerous in-person criminal offences, it also causes its own distinct harm to child victims. However, the mandatory minimum sentences go beyond what is necessary to achieve Parliament’s sentencing objectives. The incredible breadth of the luring offence and its harsh effect on representative offenders paired with the discordant internal scheme of the penalty renders the mandatory minimum sentences in s. 172.1(2) constitutionally infirm. The mandatory minimum penalties in both s. 172.1(2)(a) and (b) are therefore grossly disproportionate to the fit sentences for the representative offenders and hence unconstitutional.
Per Côté J. (dissenting in part): The appeals should be allowed. There is agreement with the majority concerning the sentence to be imposed on M. However, the minimum terms of imprisonment of six months or one year, depending on whether the Crown proceeds summarily or by indictment, as provided for in s. 172.1(2) (a) and (b) of the Criminal Code , are not contrary to s. 12 of the Charter . The four‑month sentence imposed on V should therefore be set aside and the mandatory minimum sentence of six months’ imprisonment should be imposed on him, with a permanent stay of execution.
According to Friesen, courts must impose more severe sentences on offenders who have committed offences that involve the abuse of children and must prioritize denunciation and deterrence, as required by s. 718.01 of the Criminal Code . The imposition of minimum terms of imprisonment of one year on M and six months on V is not cruel and unusual. Nor do the two reasonably foreseeable hypothetical scenarios identified by the majority show that the minimum sentences provided for in s. 172.1(2) are grossly disproportionate.
For the offender in the first reasonably foreseeable hypothetical scenario, a 30‑day term of imprisonment to be served intermittently is far too lenient a sentence. The conduct of an offender who takes advantage of her status as a teacher to exploit a child for sexual purposes is highly blameworthy and is likely to have devastating consequences for the child victim. This harm is all the more serious given the fact that the commission of the offence involves abuse of a position of trust and authority. Moreover, the fact that an act was committed spontaneously does not automatically lead to the conclusion that an offender had no subjective intent to act and that the conduct in question is therefore less blameworthy. The absence of grooming and premeditation must have a neutral effect on sentencing. Given the moral blameworthiness inherent in an offence like child luring, the abuse of a position of trust and the commission of an underlying offence, and also given the significant age difference between the offender in the first scenario and the complainant as well as the complainant’s vulnerability, the fit and appropriate sentence is a nine‑month term of imprisonment. Such a penalty acknowledges the role played by the offender’s mental illness, along with her guilty plea and the remorse she expressed.
The fit and appropriate sentence for the offender in the second reasonably foreseeable hypothetical scenario — who was in a romantic relationship with the underage victim and who abused a position of trust in relation to her — is not a conditional discharge but rather a six‑month term of imprisonment. Denunciation and deterrence must be prioritized in the context of the commission of an offence involving the abuse of the offender’s intimate partner as well as in cases involving sexual violence against a minor, two aggravating circumstances that increase the subjective gravity of the offence. Rehabilitation of an offender with no record who has just reached adulthood is not a paramount factor for serious offences or offences involving violence. The weight to be given to the offender’s young age and to the absence of a criminal record therefore depends on the nature of the offence of which the offender is convicted. Taking advantage of the existence of a relationship of trust is likely to increase the harm to the victim and thus the gravity of the offence. It will be more difficult to grant a discharge for offences committed against a child or an intimate partner.
Given that the fit and appropriate sentence is equal to or greater than a six‑month term of imprisonment in both reasonably foreseeable hypothetical scenarios, the first stage of the analytical framework that must be applied under s. 12 of the Charter decides the constitutionality of s. 172.1(2)(b). The second stage of the analytical framework therefore concerns the constitutionality of the one‑year minimum term of imprisonment set out in s. 172.1(2)(a).
To begin with, while the offence of child luring is broad in scope, requiring a high level of mens rea ensures that the offence captures only conduct that involves a high degree of moral blameworthiness as well as serious harm or a risk of such harm. Even when the offence of luring is committed in the context of a police sting operation that does not involve children, the offence involves conduct that is undeniably very serious, and it must never be seen as a victimless crime. In addition, one must be careful not to emphasize the fact that it is not necessary for the offender to have committed one of the listed underlying offences in order to be convicted of child luring. Sophistication and premeditation also reveal nothing about the scope of the offence, because they are not essential elements of the offence.
Next, the effects of the minimum term of imprisonment on the offenders in the reasonably foreseeable hypothetical scenarios are not incompatible with human dignity. Nothing in the record makes it possible to identify the precise harm associated with the additional period of imprisonment of three months in the first case and six months in the second case if the offence is prosecuted by indictment. Since the period is relatively short, its effects are not incompatible with human dignity. The logical consequence of finding that the individual circumstances of the offender in the first scenario would likely make her experience of incarceration perilously grave, and that the minimum sentence is a far cry from the shortest possible rehabilitative sentence for the offender in the second scenario, is that any minimum term of imprisonment that may be imposed on an offender who has just reached adulthood or on a person with a mental illness will be grossly disproportionate, regardless of the gravity of the offence or the circumstances surrounding its commission. This consequence is entirely inconsistent with the deference owed to Parliament.
Lastly, the minimum term of imprisonment is not grossly disproportionate to what is necessary to achieve Parliament’s objectives. The difference of three or six months between the fit and appropriate sentence and the sentence provided for in s. 172.1(2)(a) is not so great as to show that the punishment chosen by Parliament grossly exceeds what is necessary to achieve its objectives of deterrence and denunciation of sexual violence against children. The fact that there may be some disproportion the application of which leads to a demonstrably unfit punishment is not sufficient to declare s. 172.1(2)(a) and (b) unconstitutional. The question is not whether Parliament chose the least restrictive means to achieve its objectives. Parliament is perfectly at liberty to prioritize denunciation and deterrence to the near complete exclusion of rehabilitation, provided that it leaves a door open for this latter objective. It has not been shown how, by creating minimum terms of imprisonment in s. 172.1(2), Parliament has completely excluded this objective.
In light of the pronouncements in Friesen and the high standard that applies in an analysis under s. 12 of the Charter , sentencing an offender to imprisonment for six months or one year for communicating with a minor for the purpose of facilitating the commission of a sexual offence or other specified offence against the minor is not one of the instances in which the demanding and rarely attained standard of gross disproportionality is met.
Cases Cited
By Martin J.
Applied: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Hills, 2023 SCC 2; considered: R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; R. v. Rayo, 2018 QCCA 824; R. v. Melrose, 2021 ABQB 73, [2021] 8 W.W.R. 467; R. v. Paradee, 2013 ABCA 41, 542 A.R. 222; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269; R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670; referred to: R. v. Reynard, 2015 BCCA 455, 378 B.C.A.C. 293; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v. Collins, 2013 ONCA 392; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. J. (T.), 2021 ONCA 392, 156 O.R. (3d) 161; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Folino (2005), 77 O.R. (3d) 641; R. v. Symes, [2005] O.J. No. 6041 (QL); R. v. Hajar, 2016 ABCA 222, [2016] 12 W.W.R. 435; R. v. Sutherland, 2019 NWTSC 48, [2020] 3 W.W.R. 771; R. v. Wall, 2023 ABPC 3; R. v. Misay, 2021 ABQB 485, [2022] 1 W.W.R. 145; R. v. R.S.F., 2021 MBQB 261; R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193; R. v. McCraw, [1991] 3 S.C.R. 72; R. v. J.R., 2021 ONCJ 14; R. v. Roy, 2020 QCCQ 4546; R. v. M.B., 2020 ONSC 7605; R. v. Miller, 2016 SKCA 32, 476 Sask. R. 150; Caron Barrette v. R., 2018 QCCA 516; R. v. Ditoro, 2021 ONCJ 540; R. v. Gould, 2022 ONCJ 187; R. v. Cooper, 2023 ONSC 875; R. v. Clarke, 2021 NLCA 8; R. v. Aeichele, 2023 BCSC 253; R. v. Wolff, 2020 BCPC 174; Directeur des poursuites criminelles et pénales v. St‑Amour, 2021 QCCQ 6855; R. v. Rice, 2022 ABKB 773; R. v. Wickramasinghe, 2022 ONCJ 331; R. v. Rasiah, 2021 ONCJ 584; R. v. Osadchuk, 2020 QCCQ 2166; R. v. Deren, 2021 ABPC 84; R. v. Sinclair, 2022 MBPC 40; R. v. Pentecost, 2020 NSSC 277; R. v. Collier, 2021 ONSC 6827; R. v. Kavanagh, 2023 ONSC 283; R. v. Moolla, 2021 ONSC 3702; R. v. E.F., 2021 ABQB 272; R. v. Battieste, 2022 ONCJ 573; R. v. Faille, 2021 QCCQ 4945; R. v. Saberi, 2021 ONCJ 345, 493 C.R.R. (2d) 121; R. v. Boucher, 2020 ABCA 208; R. v. Kalliraq, 2022 NUCA 6; R. v. Razon, 2021 ONCJ 616; R. v. Coban, 2022 BCSC 1810; R. v. Bains, 2021 ABPC 20; Montour v. R., 2020 QCCA 1648; R. v. LaFrance, 2022 ABCA 351; R. v. Jissink, 2021 ABQB 102, 482 C.R.R. (2d) 167; R. v. Lemay, 2020 ABCA 365, 14 Alta. L.R. (7th) 45; R. v. Aguilar, 2021 ONCJ 87, aff’d 2022 ONCA 353; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211; Desjardins v. R., 2015 QCCA 1774; R. v. Borde (2003), 63 O.R. (3d) 417; R. v. McDonnell, [1997] 1 S.C.R. 948; R. v. Gummer (1983), 38 C.R. (3d) 46; R. v. Gillis, 2009 ONCA 312, 248 O.A.C. 1; R. v. Morton, 2021 ABCA 29; R. v. McLean, 2016 SKCA 93, 484 Sask. R. 137; Laguerre v. R., 2021 QCCA 1537; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Bissonnette, 2022 SCC 23; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Faroughi, 2020 ONSC 780; R. v. Koenig, 2019 BCPC 83; R. v. Ward, 2019 NSPC 72; R. v. Fawcett, 2019 BCPC 125; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; R. v. Parranto, 2021 SCC 46; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Laberge (1995), 165 A.R. 375; R. v. Murphy, 2014 ABCA 409, 593 A.R. 60; R. v. Vienneau, 2015 ONCA 898; R. v. Hood, 2016 NSPC 19, 371 N.S.R. (2d) 324; R. v. Hood, 2016 NSPC 78; R. v. Ayorech, 2012 ABCA 82, 522 A.R. 306; R. v. Tremblay, 2006 ABCA 252, 401 A.R. 9; R. v. Belcourt, 2010 ABCA 319, 490 A.R. 224; R. v. Resler, 2011 ABCA 167, 505 A.R. 330; R. v. Lundrigan, 2012 NLCA 43, 324 Nfld. & P.E.I.R. 270; R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228; R. v. Priest (1996), 30 O.R. (3d) 538; R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385; R. v. T. (K.), 2008 ONCA 91, 89 O.R. (3d) 99; R. v. Stein (1974), 15 C.C.C. (2d) 376; R. v. S. (S.), 2014 ONCJ 184, 307 C.R.R. (2d) 147; R. v. Saffari, 2019 ONCJ 861; R. v. Dickson, 2007 BCCA 561, 228 C.C.C. (3d) 450; R. v. Shevchenko, 2018 ABCA 31; R. v. Vivian, 2001 ABQB 468, 289 A.R. 378; R. v. Sulek, 2011 ABPC 314, 21 M.V.R. (6th) 336; R. v. Legg, 2014 ABPC 238, 26 Alta. L.R. (6th) 181; R. v. Valiquette (1990), 60 C.C.C. (3d) 325; R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797; R. v. Laine, 2015 ONCA 519, 338 O.A.C. 264; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Robinson (1974), 19 C.C.C. (2d) 193; R. v. Hynes (1991), 89 Nfld. & P.E.I.R. 316; R. v. C.D.R., 2020 ONSC 645; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96.
By Côté J. (dissenting in part)
R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Hajar, 2016 ABCA 222, [2016] 12 W.W.R. 435; R. v. L. (J.‑J.) (1998), 126 C.C.C. (3d) 235; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Bissonnette, 2022 SCC 23; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Hills, 2023 SCC 2; R. v. Lloyd, 2016 SCC 13, [2016] S.C.R. 130; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269; R. v. Laberge (1995), 165 A.R. 375; R. v. S.R., 2008 QCCA 2359; R. v. Barrett, 2013 QCCA 1351; R. v. D.B., 2013 QCCA 2199; R. v. S.J.B., 2018 MBCA 62; R. v. Audet, [1996] 2 S.C.R. 171; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v. Rayo, 2018 QCCA 824; R. v. Bergeron, 2016 QCCA 339; R. v. Jarvis (2006), 211 C.C.C. (3d) 20; Montour v. R., 2020 QCCA 1648; R. v. Faille, 2021 QCCQ 4945; R. v. Jissink, 2021 ABQB 102, 482 C.R.R. (2d) 167; R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670; Medvedev v. R., 2013 QCCA 540; R. v. Laurendeau, 2007 QCCA 1593; R. v. Davidson, 2021 QCCA 545; R. v. Cunningham, 2023 ONCA 36, 166 O.R. (3d) 147; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Butcher, 2020 NSCA 50, 387 C.C.C. (3d) 417; R. v. Priest (1996), 30 O.R. (3d) 538; R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385; R. v. T. (K.), 2008 ONCA 91, 89 O.R. (3d) 99; R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403; R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797; R. v. Khalid, 2010 ONCA 861, 103 O.R. (3d) 600; Lévesque v. R., 2021 QCCA 1072; R. v. Bergeron, 2013 QCCA 7; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v. Alicandro, 2009 ONCA 133, 246 C.C.C. (3d) 1; R. v. Smith, [1987] 1 S.C.R. 1045.
Statutes and Regulations Cited
Act to amend the Criminal Code (luring a child), S.C. 2007, c. 20, s. 1.
Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 24.
Bill C‑15, Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.).
Canadian Charter of Rights and Freedoms , ss. 1 , 12 .
Constitution Act, 1982 , s. 52 .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 151 , 152 , 153(1) , 155 , 160(3) , 163.1 , 170 , 171 , 172.1 , 173(2) , 271 , 272 , 273 , 279.011 , 279.02(2) , 279.03(2) , 280 , 281 , 286.1(2) , 286.2(2) , 286.3(2) , 718 , 718.01 , 718.1 , 718.2 , 718.3(4) (b)(i), (7) , 730(1) .
Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 8.
Interpretation Act , R.S.C. 1985, c. I‑21, s. 35(1) “telecommunications”.
Safe Streets and Communities Act, S.C. 2012, c. 1, s. 22.
Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 11.
Authors Cited
Bailey, Jane, and Carissima Mathen. “Technology‑Facilitated Violence Against Women & Girls: Assessing the Canadian Criminal Law Response” (2019), 97 Can. Bar Rev. 664.
Canada. Office of the Correctional Investigator. A Legacy of Missed Opportunities: The Case of Ashley Smith, by Howard Sapers, November 23, 2011 (online: https://oci-bec.gc.ca/en/content/speaking-notes-mr-howard-sapers-legacy-missed-opportunities-case-ashley-smith-health-law; archived version: https://www.scc-csc.ca/cso-dce/2023SCC-CSC26_1_eng.pdf).
Canada. Office of the Correctional Investigator. Annual Report 2021‑2022. Ottawa, 2022.
Canada. Office of the Correctional Investigator and Office of the Provincial Advocate for Children and Youth. Missed Opportunities: The Experience of Young Adults Incarcerated in Federal Penitentiaries. Ottawa, 2017.
Carlton, Alessandra. “Sextortion: The Hybrid ‘Cyber‑Sex’ Crime” (2020), 21:3 N.C. J.L. & Tech. 177.
Elliott, Ian A. “A Self‑Regulation Model of Sexual Grooming” (2017), 18 Trauma, Violence, & Abuse 83.
Gilbert, Paul. “What Is Shame? Some Core Issues and Controversies”, in Paul Gilbert and Bernice Andrews, eds., Shame: Interpersonal Behavior, Psychopathology and Culture. New York: Oxford University Press, 1998, 3.
Hanson, Elly. “The Impact of Online Sexual Abuse on Children and Young People”, in Jon Brown, ed., Online Risk to Children: Impact, Protection and Prevention, 1st ed. Hoboken, N.J.: Wiley Blackwell, 2017, 97.
Karaian, Lara, and Dillon Brady. “Revisiting the ‘Private Use Exception’ to Canada’s Child Pornography Laws: Teenage Sexting, Sex‑Positivity, Pleasure, and Control in the Digital Age” (2019), 56 Osgoode Hall L.J. 301.
Kloess, Juliane A., et al. “A Qualitative Analysis of Offenders’ Modus Operandi in Sexually Exploitative Interactions With Children Online” (2017), 29 Sex. Abuse 563.
Paquette, Sarah, et Francis Fortin. “Les traces numériques laissées par les cyberdélinquants sexuels: identités virtuelles, mensonges et protection de l’anonymat” (2021), 74 R.I.C.P.T.S. 387.
Parent, Hugues, et Julie Desrosiers. Traité de droit criminel, t. III, La peine, 3e éd. Montréal: Thémis, 2020.
Ruby, Clayton C. Sentencing, 10th ed. Toronto: LexisNexis, 2020.
Say, Gökçe Nur, et al. “Abuse Characteristics and Psychiatric Consequences Associated with Online Sexual Abuse” (2015), 18 Cyberpsychol., Behav., and Soc. Netw. 333.
Steel, Jennifer, et al. “Psychological sequelae of childhood sexual abuse: abuse-related characteristics, coping strategies, and attributional style” (2004), 28 Child Abuse & Negl. 785.
Zaccour, Suzanne, et Michaël Lessard. “La culture du viol dans le discours juridique: soigner ses mots pour combattre les violences sexuelles” (2021), 33 C.J.W.L. 175.
APPEAL from a judgment of the Quebec Court of Appeal (Levesque, Cotnam and Beaupré JJ.A.), 2021 QCCA 1285, [2021] AZ‑51790428, [2021] Q.J. No. 9996 (QL), 2021 CarswellQue 23990 (WL), affirming a declaration of unconstitutionality of the mandatory minimum sentence in s. 172.1(2) (a) of the Criminal Code and a sentence entered by Bélanger J.C.Q., 2020 QCCQ 1135, [2020] AZ‑51677243, [2020] J.Q. no 1779 (QL), 2020 CarswellQue 2109 (WL). Appeal allowed in part, Côté J. dissenting in part.
APPEAL from a judgment of the Quebec Court of Appeal (Schrager, Moore and Kalichman J