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Criminal - Sentencing - Moral Blameworthiness. Quebec (Attorney General) v. Denis
In Quebec (Attorney General) v. Denis (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec CA ruling that found a mandatory minimum sentence for conviction under s.286.1(2)(a) ['Obtaining sexual services for consideration from person under 18 years'] was invalid under Charter 12 ['Treatment or punishment' (cruel and unusual)].
Here the court considers basics of criminal sentencing, including 'proportionality' and 'moral blameworthiness':(a) General Principles of Sentencing
[75] The fundamental purpose of sentencing is to protect society and prevent crime in the broad sense by imposing just punishments that, depending on the case, have one or more of the penological objectives set out in the Criminal Code (s. 718 Cr. C.). These objectives are divided into two broad categories: punitive objectives, which include denunciation, deterrence and separation of the offender from society (s. 718(a), (b) and (c) Cr. C.), and restorative objectives, which include rehabilitation (reintegration into society), reparation of harm and promotion of a sense of responsibility (s. 718(d), (e) and (f) Cr. C.; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 43). Tensions may exist in the pursuit of these objectives, but it is up to the sentencing judge to strike a proper balance between them and to weigh their importance based on the nature of the offence and the characteristics of the offender (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43; R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 49; R. v. J.W., 2025 SCC 16, at para. 40).
[76] This broad discretion is constrained by the cardinal principle of proportionality, which seeks the imposition of a sentence that is sufficient to denounce the offence and punish the offender, without exceeding what is necessary (Senneville, at para. 35; J.W., at para. 41; Bissonnette, at para. 50; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; Nasogaluak, at paras. 40-42; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 111, per Rowe J., concurring). This principle requires the court to consider the gravity of the offence and the degree of moral blameworthiness of the offender, in order to arrive at a sentence that is proportionate to these two factors (s. 718.1 Cr. C.; see also Friesen, at para. 30). To inform this analysis, s. 718.2 Cr. C. sets out a series of secondary principles, “including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider ‘all available sanctions other than imprisonment that are reasonable in the circumstances’, with particular attention paid to the circumstances of aboriginal offenders” (Nasogaluak, at para. 40; see also J.W., at para. 46). In short, proportionality “serves to give effect” to the objectives of sentencing and to guide the court’s discretionary balancing of them (J.W., at para. 46; see also para. 57).
(b) Proportionality
(i) Gravity of the Offence
[77] The gravity of the offence has an objective component and a subjective component. We explained at length above that obtaining sexual services from a child is an offence with significant objective gravity, as indicated by the 10-year maximum sentence by which it is punishable. This reflects society’s strong condemnation of this offence and Parliament’s clear intention that it be severely punished.
[78] Subjective gravity is assessed in light of the facts surrounding the commission of the offence in question. In this regard, relevant facts will include the manner in which the offence was committed and its consequences for the victim (Hills, at para. 58).
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(ii) Moral Blameworthiness
[81] Moral blameworthiness is a function of various factors relating to the offender’s mens rea and state of mind before and at the time of committing the offence, as well as aspects of their background and personal circumstances that affect their degree of responsibility for the offence (Hills, at para. 58). The case law also recognizes that certain circumstances subsequent to the commission of the offence may be mitigating. This is true, for example, of the various indicators of the offender’s rehabilitation and the promotion of their sense of responsibility (Bertrand Marchand, at para. 72). While it is open to doubt that they are mitigating factors in the strict sense (Suter, at para. 48; Pham, at para. 11), these indicators nonetheless remain relevant in balancing the applicable penological objectives. At paras 85-94 the court assesses the required sentence in this case, illustrating relevant sentencing principles.
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