R. c. Marchand: SCC to Consider Constitutionality of Mandatory Minimum Sentence for Child Luring

On February 15, 2023, the Supreme Court of Canada [“SCC” or “the Court”] heard the appeal in R. c. Marchand, 2021 QCCA 1285 [Marchand QCCA] concerning the constitutionality of the mandatory minimum sentence for the offence of child luring. The case is on appeal from the Québec Court of Appeal [“QCCA”], which upheld the trial judge’s conclusion that the mandatory minimum sentence violated s. 12 of the Canadian Charter of Rights and Freedoms [“Charter”]. Section 12 guarantees the right not to be subjected to cruel and unusual punishment. 

The Court is considering this case at an opportune moment. The SCC recently released its decision in R. v. Hills 2023 SCC 2 [“Hills”], which clarified the framework for challenging mandatory minimum sentences under s. 12 of the Charter. Mandatory minimum sentences have long been a topic of fervent debate in Canada. Perhaps in recognition of concerns about preserving judges’ ability to craft a proportionate sentence, the SCC recently struck down provisions that remove judicial discretion entirely (see for example, Hills and R. v. Bissonnette, 2022 SCC 23). 

Content warning: The following section includes references to sexual activity with a minor that readers may find distressing. The more explicit details in the decision have been omitted. 

The Facts

The appellant, then 22-year-old Bertrand Marchand, and the female complainant met in August of 2013. Shortly after, Mr. Marchand got in touch with the complainant through Facebook (for details of the facts, see Marchand QCCA, para 14). The complainant told him that she was 13 years old at the beginning of their online interactions. A few weeks later, Mr. Marchand asked her to visit him at his parents’ home. During this visit, they had sex for the first time. 

Excluding other types of sexual activity, Mr. Marchand engaged in penetrative sex with the complainant four times over a two-year period. During this period, he maintained an online relationship with her for the purpose of obtaining sexual favours whenever possible, including asking her to send him compromising photos on Snapchat. Their online interactions decreased in frequency and stopped entirely in September 2015. The complainant provided a statement about these interactions to an investigator shortly after. 

Online conversations between the complainant and Mr. Marchand revealed that he was well aware of the illegality of his conduct but continued, nonetheless. In these conversations, the complainant told Mr. Marchand that she felt used and exploited by him, and this was ultimately the reason for her ending their interactions. The complainant was evidently hesitant to meet up with him in some instances, and expressed her concern about the consequences should their relationship be discovered. Mr. Marchand ignored her discomfort, and when she canceled previously scheduled meetings, made accusatory statements towards her.

The Trial Decision

Mr. Marchand pleaded guilty to sexual interference and luring a person under the age of 16 years pursuant to s. 151 and s. 172.1(1) of the Criminal Code RSC 1985, c C-46 [“the Code”], respectively. Sexual interference as defined in s. 151 of the Code is distinct from the offence of sexual assault against a minor. Sexual interference is a specific intent offence, because the mens rea requires touching for a sexual purpose. Sexual assault on the other hand, does not require a motive of sexual gratification. The charge of child luring arose from the nature of Mr. Marchand’s online communications with the complainant between February and September of 2015. As such, the relevant time period covered only the last eight months of the two-year period in which Mr. Marchand and the complainant were in contact.

The trial judge found that the one-year mandatory minimum sentence for child luring was disproportionate to the circumstances of the case, and as such, violated s. 12 of the Charter. As a result, Mr. Marchand was sentenced to 10 months imprisonment on the count of sexual interference and 5 months on the count of child luring, to be served concurrently. 

The trial judge also found that this was “not a classic case of a sexual predator who goes on the Internet to find a young victim” (R. c. Marchand, 2020 QCCQ 1135, para 64 [Marchand, QCCQ]]). The use of social media to facilitate these attempts was “a generational choice” rather than the more insidious case of an offender anonymously searching for a young victim for the purpose of obtaining sexual favours (Marchand, QCCQ, para 67). 

Moreover, the charge related specifically to the shorter time period in 2015, when sexual contact with the complainant had already been ongoing for a year and a half. Given that the complainant had “already consented” to sexual activities prior to the time period in question, Mr. Marchand’s conduct “did not constitute preparatory grooming … for the purpose of lowering her inhibitions” (Marchand, QCCQ, para 70). Instead, the trial judge characterized them as repeated attempts to continue having sex with a vulnerable girl. The judge noted that the sentence would have been different had Mr. Marchand pleaded guilty to child luring for the period before the first incident of sexual interference (Marchand, QCCQ, para 72). 

The QCCA Decision

On appeal, the QCCA considered the following questions:  

1. Whether the trial judge erred by considering certain factors as mitigating and limiting the scope of the offence of luring?; and 
2. Whether the trial judge erred in the application of the s. 12 test? 

Majority Opinion

The Crown appealed Mr. Marchand’s sentence on the  child luring count, as well as the finding of unconstitutionality with respect to the 1-year mandatory minimum  for child luring under s. 12 of the Charter. A majority of the QCCA dismissed the appeal. 

The majority noted that the trial judge’s reasons for her conclusion on the unconstitutionality of the mandatory minimum sentence for child luring was “not as developed as some might wish” (Marchand QCCA, para 114). However, the trial judge had not erred in law or in principle and therefore, no  intervention could be justified. The majority emphasized that trial judges have broad discretionary powers in determining an appropriate sentence, as they have the advantage of seeing and hearing the witnesses, and assessing the evidence in context (Marchand QCCA, para75). As such, sentencing judges are entitled to a high degree of deference from appellate courts. 

The majority noted that the trial judge’s remarks about the method of communication being a “generational choice”(Marchand, QCCQ, para 67) was to be understood as a relevant observation, rather than a comment trivializing the use of social media for the purpose of obtaining sexual favours from a minor. Moreover, the trial judge had not considered the complainant’s de facto consent to be a mitigating factor; rather the majority held that references made to consent were used to distinguish the circumstances in this case from the more insidious child grooming cases discussed so far in the case law. 

Dissenting Opinion

Justice Levesque dissented. He would have sentenced Mr. Marchand to the one-year mandatory minimum sentence, to be served concurrently with the 10 months’ imprisonment for sexual interference (Marchand QCCA, para 6). Given his conclusion that the mandatory minimum in this case was appropriate, Justice Levesque did not have to rule on the issue of whether reasonably foreseeable child luring hypotheticals  could potentially impose an unconstitutional sentence on a hypothetical offender ((Marchand QCCA, para 59). 

In his reasons, Justice Levesque found that the trial judge made errors in principle when arriving at her conclusion that the mandatory minimum was unconstitutional. In particular,  she inappropriately minimized the objective and subjective gravity of the offence (Marchand QCCA, para 28). Limiting the scope of the offence solely to the sexual encounters subsequent to the communications in question was unjustified, as Mr. Marchand had chosen the complainant specifically because of her vulnerability (Marchand QCCA, para 36). His chosen method of communicating with her served to manipulate and maintain his domination over her to satisfy his sexual impulses, as is the case in other grooming cases. Although the indictment only includes conversations that occurred towards the end of their online interactions, Justice Levesque would have considered the events that took place before that period in context, to find that the grooming had been continuous for the whole duration of their relationship (Marchand QCCA, para 45). 

Commentary 

This case will be the first time that the SCC considers the constitutionality of the mandatory minimum sentence for child luring. Most recently,  the Court considered the offence in  R. v. Morrison, 2019 SCC 15. In that case, a majority of the SCC declined to consider the mandatory minimum’s constitutionality. However, in her concurrence, Justice Karakatsanis would have held that the mandatory minimum sentence violated s. 12 of the Charter. Further, Justice Abella, in her dissenting opinion, would have found the provision unconstitutional under ss. 7 and 11(d) of the Charter.  

The Court’s decision in this case will likely depend on 1) how much deference trial judges are entitled to in crafting a fit and proportionate sentence in the particular circumstances of the offender; and 2) whether a majority of judges find that a reasonably foreseeable child luring hypothetical exists that would t render the mandatory minimum sentence unconstitutional. 

Both the majority and the dissenting QCCA opinions emphasized the gravity of the offence, especially as it involves the use of popular social media to target children and adolescents, who are often active and unsupervised on these sites. The disagreement between the majority and dissent turns on the specific circumstances in which the offender first contacted the complainant. The SCC will likely shed light on whether it matters that the offender’s identity was known to the complainant during the period in question, as opposed to being targeted by an anonymous online predator. 

Is the Section 12 Test Fit for Purpose?

Mandatory minimum sentences have primarily been challenged under s. 12 of the Charter. The Court’s s. 12 jurisprudence has been developed through the lens of protecting offenders from “grossly disproportionate” punishment. In Hills, the SCC confirmed that the threshold for a finding of unconstitutionality under the s. 12 framework is high, in order to respect Parliament’s authority to impose harsh penal methods (Hills, para 40). 

The test for challenging a mandatory minimum under s. 12  requires courts to first consider what the appropriate sentence should be (Hills, para 40). This analysis is conducted with reference to the gravity of the offence, the circumstances and moral blameworthiness of the offender, as well as sentencing objectives like deterrence and rehabilitation. At the second stage, courts must determine whether the mandatory minimum sentence is grossly disproportionate in relation to the fit sentence. The test as it stands implies that courts will only interfere in extreme cases, where the deviation would be “so excessive as to outrage standards of decency” (Hills, para 109). 

Of course, the Court is constrained by precedent and is careful to steer clear of accusations of judicial overreach. But the strict standard that the Court has favoured when interpreting s. 12 challenges leaves much to be desired. A focus on gross disproportionality rightly protects against particularly long sentences and punishments that are inherently especially severe. But requiring such a high bar for provisions to be held in violation of  the Charter fails to give effect to the importance of the principle of proportionality and relevant sentencing objectives considered in the first stage. 

Following the SCC’s recent decision in Hills, it is regrettable that the Court is unlikely to endorse such a reconceptualization of the s. 12 framework. It appears that the SCC’s affirmation of the centrality of the principle of proportionality in sentencing will continue to sit uncomfortably alongside the restrictive standard of gross disproportionality required by the prevailing s. 12 framework.