R. v. Bertrand Marchand, 2021 QCCA 12852022 QCCA 16, 2023 SCC 26 (39935) (40093)

“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.”

The SCC (6:1, in part) allowed Marchand’s appeal in part, and dismissed H.V.’s appeal.

Justice Martin wrote as follows (at paras. 2-5):

“Two legal issues arise in these companion appeals. First, in Mr. Bertrand Marchand’s matter, the Crown appellants have questioned the fitness of Mr. Bertrand Marchand’s sentence for luring. This requires an examination of the sentencing principles for this separate and specific offence, based on a modern understanding of its gravity and associated harms. In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, this Court articulated the various serious and potentially life-long consequences associated with sexual violence against children. I build on that analysis and explain the distinct harms of the child luring offence so that its full gravity animates the governing sentencing principles and informs their constitutional status. In Mr. Bertrand Marchand’s case, after applying the correct sentencing principles, I increase his sentence from five months to one year imprisonment, and find that it should be served consecutively, and not concurrently, to the other offence for which he was sentenced. In H.V.’s matter, the fitness of H.V.’s sentence was not challenged before this Court.

Second, both respondents in the companion appeals ask the Court to uphold the conclusions in the respective courts below that the mandatory minimum sentences outlined in s. 172.1(2)(a) and (b) are inconsistent with s. 12 of the Canadian Charter of Rights and Freedoms and therefore of no force or effect. Mr. Bertrand Marchand argues against the one‑year mandatory minimum period of incarceration imposed when the Crown proceeds by indictment (s. 172.1(2)(a)), and H.V. impugns the six‑month mandatory minimum period of incarceration imposed when the Crown proceeds summarily (s. 172.1(2)(b)). For their part, the Crown appellants ask that the Court affirm the constitutionality of the mandatory minimum sentences. While this Court has previously noted that the one‑year obligatory penalty concerning s. 172.1(2)(a) is “constitutionally suspect” (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 146), this is the first time the Court squarely addresses the constitutional validity of both penalties.

A thorough analysis reveals that these mandatory minimum sentences infringe the Charter’s s. 12 protection against cruel and unusual punishment. 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. 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. In these appeals, the reasonably foreseeable scenarios proffered produce fewer harms, and are presented in circumstances where the moral culpability of the offender is reduced. 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.”