Canada’s top court has ruled that applying mandatory minimum sentences to the offence of child luring is unconstitutional.
The Supreme Court of Canada found in a six-to-one decision released Friday that such sentences violate the Charter-protected right that guards against “cruel and unusual treatment or 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,” the ruling said.
Justices examined the issue in reference to two specific cases, noting that the decision comes at a time when it says the internet has made access to children “unprecedented.”
“Children, who now spend significant amounts of time online, are increasingly susceptible to online exploitation and abuse,” the majority decision written by Justice Sheilah Martin read.
“The dangers of sexualizing children are increasingly well-documented and the harms that result from their victimization are now more fully understood.”
In that context, the fact the luring offence is triggered by “any telecommunication platform” shows its “massive breadth” — but so too “the issue of the medium and its effect on the message,” the decision said.
“For example, certain online applications require users to indicate they are the age of the majority and old enough to be present on the platform. However, this requirement can be bypassed by underage users with the click of a button,” Martin wrote.
Users of other sites that are “not designed for predatory purposes” could wrongfully engage in conversation with a minor that constitutes luring “without making best efforts to verify the age of other users they engage with online.”
It’s not to say that individuals who engage sexually with children online are not “morally blameworthy,” the court found. “However, in certain cases the impugned conduct may not rightly attract jail time.”
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The decision details Parliament’s history of trying to address sexual offences involving children with legislation.
In 2002, parliamentarians first inked the offence of luring a child into the Criminal Code. A decade later, the Conservative government at the time, led by former prime minister Stephen Harper, introduced mandatory minimum sentences for the offence.
It did so as part of a suite of tough-on-crime measures, many of which have been challenged in the courts.
Conservative MP Rob Moore, who serves as the party’s justice critic, said in a statement on Friday that he found the Supreme Court ruling “shocking and disappointing.”
Liberal Justice Minister Arif Virani is reviewing the decision “closely,” spokeswoman Chantalle Aubertin said in a written statement.
She called sexual offences against children, including luring, “heinous crimes,” adding “those who commit them should be punished accordingly.”
One of the two appeals the Supreme Court examined in its Friday ruling concerned a man who pleaded guilty to child luring and sexual interference after having sex with a girl four times over the course of two years, beginning when she was 13 years old and he was 22.
They initially met in person, according to the decision, but then he sent her a friend request on Facebook, which they used to communicate.
He challenged the one-year mandatory minimum sentence for child luring on constitutional grounds and a sentencing judge instead imposed five months of imprisonment for that offence.
But in its decision Friday, the Supreme Court ordered a one-year sentence despite agreeing that the minimum is unconstitutional.
“It is important to note that in this decision, the (Supreme Court) chose to increase the sentence for the offender who committed inexcusable crimes, a clear signal these offences should be punished severely,” Aubertin wrote.
The other appeal involved another accused person who challenged the six-month mandatory sentence required in cases where the offence is punishable on summary conviction, an approach the Crown can decide to proceed with in less serious cases.
The accused person in that case pleaded guilty after complimenting the buttocks and breasts of his 16-year-old niece and godchild at a family dinner at his home, while they were alone, then sending text messages that were sexual in nature over the 10-day span that followed.
After an appeal, the Superior Court of Quebec changed the sentence to four months in jail.
The Crown had asked the Supreme Court to find the mandatory sentence in the case to be constitutional. But, ultimately, that appeal was dismissed.
“Put simply, the constituent elements of the child luring offence are so broad and unconstrained as to capture conduct that is only remotely related to the heart of the offence,” the decision read.
“This is ultimately what makes the mandatory minimum provisions constitutionally suspect.”
Rather, the justices said Parliament could have designed the mandatory punishment to allow judges the power to apply an exemption to such sentences in cases where they found it would violate the Charter provision guarding against cruel punishment.
The Supreme Court concluded that lawmakers can create criminal offences “for broad purposes and with wide applications.”
“However, when it imposes a mandatory minimum sentence for a given offence, which applies to all cases without discretion or discernment, it runs the risk of creating a grossly disproportionate and unconstitutional penalty,” it read.
“Exceptionally broad offences, even inherently serious ones, can be committed in a variety of ways and with different levels of harm and moral culpability.”
The justices also concluded that while a one-year or six-month mandatory minimum sentence may not seem excessive to most, “it is a severe punishment for certain offenders, particularly youthful offenders, offenders with mental disorders and those with severe developmental disabilities.”
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