Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 6 minutes.

Latest News

  1. The SCC is releasing its decisions in R. v. Marchand and R. v. H. V. on Friday, Nov. 3. At issue is whether a mandatory minimum sentence for child luring offences is constitutional.
  2. On Oct. 13, the SCC released its decision in Ponce v. Société d’investissements Rhéaume ltée, 2023 SCC 25. The Court unanimously (6-0) dismissed the appeal.

Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.

Mandatory Minimum Sentence for Child Luring Offence

Appeal by leave from R. c. Bertrand Marchand, 2021 QCCA 1285 (webcast & factums) & R. c. H.V., 2022 QCCA 16 (webcast & factums)

What Happened?

In Marchand, the respondent pleaded guilty to a charge of sexual interference committed against a minor under the age of 16 for having sex four times. He also pleaded guilty to a charge of child luring arising from interaction with the complainant on social media. The trial judge sentenced the respondent to imprisonment for 10 months on the count of sexual interference and for 5 months concurrent on the count of child luring. She also found that the mandatory minimum sentence of one year of imprisonment provided for in s. 172.1(2)(a) of the Criminal Code for the offence of child luring was disproportionate in view of the circumstances in which it had been committed in this case and the respondent’s own circumstances, and that it was therefore contrary to s. 12 of the Charter. As a result, she declared it to be of no force or effect with respect to the respondent. The majority of the Quebec Court of Appeal dismissed the appeal from the sentence of imprisonment for child luring and from the declaration that the minimum sentence was of no force or effect. Levesque J.A., dissenting, would have allowed the appeal, increased the sentence for child luring from 5 to 12 months and set aside the declaration that the minimum sentence was of no force or effect.

In H.V., the respondent pleaded guilty to a child luring offence and during sentencing argued that the 6-month mandatory minimum sentence provided for in s. 172.1(2)(b) of the Criminal Code was unconstitutional under s. 12 of the Charter. In his view, a sentence of imprisonment would be unjustified. The prosecution sought a term of imprisonment of between 9 and 12 months along with probation. The Court of Québec declared that the 6-month mandatory minimum sentence was of no force or effect in relation to the accused, suspended the passing of sentence and imposed 2 years of probation with an obligation to perform 150 hours of community service. The Superior Court allowed the appeal. It affirmed that the mandatory minimum sentence was of no force or effect, but set aside the sentence imposed at trial. It sentenced the accused to 90 days’ imprisonment to be served intermittently and 3 years of probation, including 150 hours of community service. The Court of Appeal dismissed the prosecution’s appeal, upholding the 90-day sentence of imprisonment and the declaration that the minimum sentence was invalid. It held that the Superior Court had not imposed a demonstrably unfit sentence that did not reflect the objective and subjective seriousness of the crime committed and that the Superior Court had not erred in law in finding s. 172.1(2)(b) to be constitutionally invalid.

What Was Argued at the SCC?

Appellants: The Crown argued that a six month mandatory minimum for child luring does not infringe s. 12 of the Charter. In its analysis, the Court should take into account contextual factors, including the fact that the protection of children is an important social objective and the harm of sexual offences against children. The safety and vulnerability of children, the reasonably foreseeable harm and long-term consequences to the victims, and the legislator’s objective of prevention, which is anchored in reporting and deterrence, are also important factors.

Respondents: The respondents argued that sentencing attracts deference and that the standard of review should not be modified. Sentencing judges must be trusted with this highly discretionary power to fashion a correct sentence. The mandatory minimum has a disproportionate effect here and there are reasonable hypotheticals in which it would also infringe s. 12.

What Else Should You Know Before Making a Prediction?

Mandatory minimums have consistently been struck down. However, early in 2023, the Supreme Court upheld a mandatory minimum in R. v. Hilbach, 2023 SCC 3 and clarified the framework in the companion case of R. v. Hills, 2023 SCC 2. Given the offences here and the relatively low mandatory minimum, I suspect the Court will be inclined to give greater deference to Parliament’s decision to enact the mandatory minimums. I’m leaning towards appeal allowed.

Previous Predictions

On Oct. 27, 2023, the SCC released its decision in Ponce v. Société d’investissements Rhéaume ltée, 2023 SCC 25.

Held (6-0): Appeal dismissed. Directors’ failure to inform shareholders of the third party’s interest in acquiring the company before buying those shareholders out was a breach of the requirements of good faith.

Key points:

  • There was a duty to inform here based on an implied contractual obligation to inform shareholders as well as based on the requirements of good faith in the Civil Code.
  • There is a three-part test to determine whether particular information falls within the duty to inform: (1) knowledge of the information, whether actual or presumed, by the party owing the obligation to inform; (2) the fact that the information in question is of decisive importance; (3) the fact that it is impossible for the party to whom the duty to inform is owed to inform itself, or that the creditor is legitimately relying on the debtor of the obligation.
  • Disgorgement of profits is available only where a person is charged with exercising powers in the interest of another, and it is meant to ensure compliance with the obligation of loyalty. An award of damages, on the other hand, serves to compensate the victim of a fault for the injury sustained.

Predictions: 76% correctly predicted the outcome.

-Tom Slade

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