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Criminal - Sentencing - Mandatory Minimum

. R. v. Bertrand Marchand

In R. v. Bertrand Marchand (SCC, 2023) the Supreme Court of Canada strikes down the mandatory minimum sentencing 'child luring' provisions of CCC 172.1(2)(a-b) under Charter s.12 ['cruel and unusual treatment or punishment'].

In these quotes the court considers Charter s.12 ['cruel and unusual punishment'] and 'mandatory minimum sentences':
[4] 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.


[104] Recently, this Court reaffirmed and clarified the framework for constitutional challenges to mandatory minimum sentences under s. 12. 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 (R. v. Hills, 2023 SCC 2, at para. 40; R. v. Bissonnette, 2022 SCC 23, at para. 62). First, a court must set a fit and proportionate sentence for the individual offenders before the court and possibly other reasonably foreseeable offenders (Hills, at para. 40; see also Bissonnette, at para. 63; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 77). Second, a court must determine whether the mandatory minimum requires imposing a sentence that is grossly disproportionate to the otherwise fit and proportionate sentence (Hills, at para. 40; Bissonnette, at para. 63; Nur, at para. 46; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1072). 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 (Hills, at para. 122).


[107] The present constitutional analysis does not disturb the maximum sentence established by Parliament, the sentencing range for luring affirmed in Morrison or this Court’s clear guidance in Friesen. The sole question is whether the mandatory minimum sentences in s. 172.1(2), which deprive courts of the ability to “tailor proportionate sentences at the lower end of a sentencing range” (Nur, at para. 44), impose cruel and unusual punishment in reasonably foreseeable cases.

[108] 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 (see, e.g., Hills, at para. 122). This is ultimately what makes the mandatory minimum provisions constitutionally suspect. Parliament could have limited the conduct captured by the mandatory minimums or built in a “safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment” (R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 36); it did not do so here. As with any other challenged provision, this Court must carefully evaluate the constitutionality of the mandatory minimum sentences at issue.

[109] 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” (Hills, at para. 109, citing R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 45; Lloyd, at para. 24, citing R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, at para. 4, citing Smith, at p. 1072). Only on “rare and unique occasions” will a sentence infringe s. 12 (Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385, at p. 1417). As I outline below, the mandatory minimum sentences for luring meet this high threshold and must be struck. Although the mandatory minimum penalties are not grossly disproportionate as applied to Mr. Bertrand Marchand and H.V., they are when applied to reasonably foreseeable scenarios.


C. A Fit Sentence for the Representative Offenders

[122] In addressing the first stage of the s. 12 analysis and in setting the fit and proportionate sentence for the particular or representative offender, courts must define as specific a sentence as possible (Hills, at para. 94). “Scrupulously selecting a precise and defined sentence also supports an analytically fair and principled result at the second stage of the s. 12 inquiry” (para. 65). The comparative exercise central to the gross disproportionality analysis requires careful adherence to established sentencing principles in the first stage. To determine the fit and proportionate sentence for the representative offenders at bar, the Court must consider the sentencing objectives as set out in ss. 718 and following of the Criminal Code. Any court determining a fit sentence for a representative offender must examine any aggravating and mitigating factors at play and exercise restraint in imposing terms of incarceration (s. 718.2(d) and (e)). Sentencing judges and appellate courts must not magnify aggravating factors or narrow mitigating ones to reach desired conclusions.

[123] Section 718.1 directs that sentences “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Additionally, s. 718.01 directs judges to give primary consideration to denunciation and deterrence when sentencing offences involving abuse against children. At the same time, judges do retain judicial discretion to weigh other relevant sentencing objectives in the circumstances. Courts must individualize the sentence by accounting for the gravity of the offence, the offender’s individual circumstances and the offender’s moral culpability (R. v. Parranto, 2021 SCC 46, at para. 44; Lacasse, at para. 12; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 51). Even where Parliament has directed that the objectives of denunciation and deterrence are paramount at sentencing, judges must apply all the principles mandated by ss. 718.1 and 718.2 to craft a sentence that “furthers the overall objectives of sentencing” (Ipeelee, at para. 51). Deference to Parliament’s objectives is not unlimited; to ensure respect for human dignity, the door to rehabilitation must remain open (Bissonnette, at paras. 46 and 85; Hills, at paras. 140-41; Nasogaluak, at para. 43).
At paras 134-167 the court concludes that the mandatory minimum sentencing provisions are 'grossly disproportionate' in light of the Charter s.12 cruel and unusual protections.

The court concludes on this 'mandatory minimum sentencing' issue:
V. Conclusion

[168] Parliament is entitled to create criminal offences for broad purposes and with wide applications. Similarly, it may prioritize deterrence and denunciation in the crafting of fit and proportionate sentences and impose high maximum sentences to convey its view of the gravity of a particular offence.

[169] 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. Exceptionally broad offences, even inherently serious ones, can be committed in a variety of ways and with different levels of harm and moral culpability. A predatory adult who communicates by means of telecommunication over a long period of time to manipulate a child for the purpose of facilitating one of the secondary offences in s. 172.1(1) may well merit a custodial sentence considerably in excess of the mandatory minimum. On the other hand, there will be cases in which the gravity of the offence and the degree of moral blameworthiness of the offender may not merit a custodial sentence at all — and in which the public would be shocked to hear that a legislated period of imprisonment automatically applies.
. R. v. Basque

In R. v. Basque (SCC, 2023) the Supreme Court of Canada considered the crediting of a pre-trial suspension release undertaking against a driving suspension sentence. In these quotes the court generally considers sentence 'crediting', here with a CCC mandatory minimum sentence requirement:
[3] If not for the requirement in s. 259(1)(a), granting credit would undoubtedly be possible. Indeed, in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 — a case that did not concern a mandatory minimum prohibition — this Court confirmed that there is a common law judicial discretion to grant credit for a pre‑sentence driving prohibition. This discretion is a natural extension of the longstanding practice of crediting offenders for periods of pre‑sentence custody.

[4[ Provided that Parliament respects the relevant constitutional constraints, it can, of course, enact legislation that displaces the common law rule allowing credit to be granted for a pre‑sentence driving prohibition. Ms. Basque does not challenge the constitutionality of s. 259(1)(a) but argues that her request for credit is not limited in any way by the imposition of the mandatory minimum prohibition. The respondent Crown, relying on the majority reasons of the Court of Appeal, argues instead that granting credit in this case would conflict with the application of the one‑year minimum prohibition, even though the relevant statutory provision is silent on crediting.

[5] Respectfully, I believe that the respondent is mistaken. In my view, granting credit based on the common law discretion recognized in Lacasse is perfectly consistent with the application of the minimum prohibition in s. 259(1)(a) Cr. C. and with the rule requiring that a sentence commence when it is imposed in s. 719(1) Cr. C. It was therefore open to the sentencing judge to take into account the period of 21 months already served by Ms. Basque, as this would not undermine Parliament’s intent.

[6] The discretionary authority to grant credit under the common law can coexist harmoniously with judicial adherence to a mandatory minimum established by statute. This coexistence rests on the well‑known distinction between the concepts of “punishment”, understood as a deprivation, and of “sentence”, understood as a judicial decision (in French, the distinction between “punition” and “sentence”, where the term “peine” can also be used to convey both meanings). This distinction, considered by Rosenberg J.A. in the context of credit for pre‑sentence custody in R. v. McDonald (1998), 1998 CanLII 13327 (ON CA), 40 O.R. (3d) 641 (C.A.), was taken up by Arbour J. of this Court in R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at paras. 35‑37, with particular attention to the multiple meanings of the French term “peine”. From this perspective, Arbour J. explained that while the term “peine” used in the sense of “punishment” refers to the total punishment imposed on an offender, the same word when used to mean “sentence” refers to the decision rendered by the court. It bears noting that a sentence is always prospective in order to prevent the judicial practice of backdating sentences (see s. 719(1) Cr. C.).

[7] As a general rule, the purpose of a mandatory minimum is to impose on an offender an effective punishment of a specified minimum length. This is so because the objectives underlying a minimum punishment are achieved equally well whether the punishment is served before or after the offender is sentenced. In the instant case, the mandatory minimum provided for in s. 259(1)(a) is no exception to this rule.

[8] Properly interpreted, s. 259(1)(a) requires the court to impose a total punishment of one year to be served by the offender, not to hand down a sentence imposing a one‑year prohibition that must necessarily be served prospectively. As Rosenberg J.A. noted in McDonald, Parliament’s intention is respected whether the punishment is served before or after the offender is sentenced, because the effect on the offender is the same in either case. Interpreted in this way, s. 259(1)(a) did not prohibit the sentencing judge from “reducing” the sentence by granting credit for the pre‑sentence driving prohibition period, as long as the total punishment remained consistent with the minimum prescribed by Parliament.

[9] By the time the trial judgment was rendered in this case, it had been 21 months since Ms. Basque had essentially “begun serving [her] sentence” (see R. v. Sharma, 1992 CanLII 90 (SCC), [1992] 1 S.C.R. 814, at p. 818, cited with approval by Wagner J., as he then was, in Lacasse, at para. 113). When considered from this perspective, the objectives of the minimum punishment set out in s. 259(1)(a) had already been met — and even surpassed. In such a context, granting credit to “reduce” the length of the prohibition imposed on Ms. Basque does not conflict with s. 259(1)(a) because she has already served a driving prohibition period exceeding the one‑year minimum required by that provision. Crediting also addresses the considerations of fairness and justice touched on in Wust, including what Paciocco J.A. usefully described in an academic paper as “the aversion to double punishment” (D. M. Paciocco, “The Law of Minimum Sentences: Judicial Responses and Responsibility” (2015), 19 Can. Crim. L.R. 173, at p. 211).

[10] In short, no conflict arises from the concurrent application of s. 259(1)(a) and the common law rule that allows credit to be granted. At the time of sentencing, the court is required to impose the one‑year mandatory minimum punishment, but there is nothing in the statute that prevents it from then granting credit. Similarly, granting credit is not contrary to the requirement set out in s. 719(1) Cr. C. because only the sentence has to commence when it is imposed, not the one‑year minimum punishment served under s. 259(1)(a). These statutory provisions therefore do not displace the discretion of sentencing judges that was recognized in Lacasse. Of course, Parliament remains free, within the constraints imposed by the Constitution, to limit this discretion, but it must do so through a “clear provision to that effect” (Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, at para. 56). There is no such provision here, as s. 259(1)(a) is silent regarding the granting of credit.

[11] Furthermore, the codification of the discretion to give credit for pre‑sentence custody in s. 719(3) Cr. C. has no impact on this appeal. Like s. 259(1)(a), s. 719(3) is unambiguous, and it is also silent with respect to driving prohibitions. Here, the absence of an analogous provision for driving prohibitions does not signify a positive intention by Parliament to eliminate the discretion recognized in Lacasse, a case which, I should add, was decided after s. 719(3) was enacted.

[12] In light of the foregoing, and given that Ms. Basque has already been prohibited from driving for 21 months, the imposition of an additional one‑year prohibition period would amount to a kind of double punishment, contrary to the most fundamental requirements of justice and fairness. Conscious of this fact, the sentencing judge ordered a one‑year driving prohibition but found that Ms. Basque had already satisfied this condition. However, he backdated Ms. Basque’s sentence to achieve this result. With respect, this was an error. He could quite properly have imposed the one‑year mandatory minimum punishment required by s. 259(1)(a) Cr. C., stated that a sentence commences when it is imposed under s. 719(1) Cr. C., and then granted credit for the pre‑sentence driving prohibition period by exercising his common law discretion, which has not been displaced by the Criminal Code.


A. Key Statutory Provisions

[30] At the time of the events, the former s. 259(1) Cr. C. made a driving prohibition order mandatory for certain impaired driving offences, including the summary conviction offence relevant to this case (similarly, see the current s. 320.24(2) Cr. C., enacted by S.C. 2018, c. 21). Paragraphs (a), (b) and (c) of s. 259(1) established a gradation of mandatory minimum prohibition periods that took into account the offender’s previous convictions for such offences:
Mandatory order of prohibition

259 (1) When an offender is convicted of an offence committed under section 253 or 254 . . ., the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,

Ordonnance d’interdiction obligatoire

259 (1) Lorsqu’un contrevenant est déclaré coupable d’une infraction prévue aux articles 253 ou 254 . . ., le tribunal qui lui inflige une peine doit, en plus de toute autre peine applicable à cette infraction, rendre une ordonnance lui interdisant de conduire un véhicule à moteur dans une rue, sur un chemin ou une grande route ou dans tout autre lieu public, un bateau, un aéronef ou du matériel ferroviaire :

(a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year;

(a) pour une première infraction, durant une période minimale d’un an et maximale de trois ans, en plus de la période d’emprisonnement à laquelle il est condamné;

(b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and

(b) pour une deuxième infraction, durant une période minimale de deux ans et maximale de cinq ans, en plus de la période d’emprisonnement à laquelle il est condamné;

(c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.

(c) pour chaque infraction subséquente, durant une période minimale de trois ans, en plus de la période d’emprisonnement à laquelle il est condamné.
[31] Section 718.3(2), which is in the division of the Criminal Code dealing with “Punishment Generally”, provides that the punishment to be imposed (“peine à infliger” in French) is in the court’s discretion, subject to the limitations set out in the enactment prescribing the punishment in question:
Discretion respecting punishment

[718.3](2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

Appréciation du tribunal

[718.3](2) Lorsqu’une disposition prescrit une peine à l’égard d’une infraction, la peine à infliger est, sous réserve des restrictions contenues dans la disposition, laissée à l’appréciation du tribunal qui condamne l’auteur de l’infraction, mais nulle peine n’est une peine minimale à moins qu’elle ne soit déclarée telle.
[32] The parties also focused attention on s. 719. Its first subsection is entitled “Commencement of sentence” (in French, the word “peine” is used as the parallel term to “sentence” in this context). Section 719(3) is entitled “Determination of sentence” (“Infliction de la peine” in French). These provisions read as follows:
Commencement of sentence

719 (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

. . .

Determination of sentence

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

Début de la peine

719 (1) La peine commence au moment où elle est infligée, sauf lorsque le texte législatif applicable y pourvoit de façon différente.

. . .

Infliction de la peine

(3) Pour fixer la peine à infliger à une personne déclarée coupable d’une infraction, le tribunal peut prendre en compte toute période que la personne a passée sous garde par suite de l’infraction; il doit, le cas échéant, restreindre le temps alloué pour cette période à un maximum d’un jour pour chaque jour passé sous garde.
[33] It is appropriate at the outset to recognize that linguistic usage in this area of sentencing is often uneven, be it in legislation, jurisprudence or scholarship. In the title for s. 259(1) Cr. C., Parliament spoke of a “mandatory order of prohibition” / “ordonnance d’interdiction obligatoire”. In the English‑language reasons of the Court of Appeal in this case, the terms “mandatory minimum”, “mandatory minimum sentence” and “mandatory driving prohibition” are used. In the French‑language version of the reasons, “peine minimale obligatoire” and “période minimale d’interdiction” predominate. In the Criminal Code more broadly, the terms “minimum punishment” / “peine minimale” are frequently used as equivalents (see, e.g., R. v. Hilbach, 2023 SCC 3, at paras. 2 and 12, interpreting s. 344(1) Cr. C. and using both “mandatory minimum sentence” / “peine minimale obligatoire” and “mandatory minimum punishment” / “peine minimale obligatoire”). That said, as Arbour J. wrote in Wust, “[w]hat is fundamental is less the words chosen, in the French or English version, but the concepts that they carry” (para. 36).
The court more fully explains their ruling on these issues at paras 39-76.


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