Dutil, Healy, Ruel
Appeal from a judgment of the Court of Quebec that declared the mandatory minimum sentence of six months’ imprisonment for the offence under s. 286.1(2)(a) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.) to be of no force or effect with respect to the respondent. Allowed.
In March 2016, the Service de police de Laval conducted an undercover operation to combat juvenile prostitution within its territory, targeting clients who solicited sexual favours from girls under the age of 18 years. In this context, the respondent was charged with communicating with a person for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years (s. 286.1(2)(a) Cr. C.). He pleaded guilty.
The trial judge declared that the mandatory minimum sentence of 6 months’ imprisonment set out in the provision at issue was of no force or effect with respect to the respondent because it infringed s. 12 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I). Accordingly, she sentenced him to 90 days’ imprisonment to be served intermittently, followed by 2 years’ probation and 150 hours of community work to be performed within 18 months.
In a minimum sentence, the objective of deterrence automatically takes precedence over the other sentencing objectives and limits the possibility for a judge to individualize the sentence to fit the circumstances of the crime and the offender. Such a sentence infringes s. 12 of the Charter if it is grossly disproportionate, that is, if it is a sentence that is so excessive as to outrage standards of decency and abhorrent or intolerable to society.
In this case, the judge did not take into account the precedence of the objectives of denunciation and deterrence in sexual offences against minors, and she minimized the gravity of the acts committed by the respondent, stating that the [translation] “victims were fictitious” in the context of an undercover operation. Furthermore, the circumstances in which the respondent committed the offence were serious; he agreed to participate in sexual activities involving the victimization of two 16-year-old girls for full sexual intercourse. The existence of a pimp also increased the subjective gravity of the offence.
According to the appropriate guidelines and the proper range of sentences, and despite the existence of several mitigating factors, a minimum sentence of 6 months’ imprisonment was not, in the respondent’s case, grossly disproportionate to the point of being cruel, unusual, unjustified, and therefore of no force or effect. Therefore, the judge should have imposed this sentence.
Because the respondent has already served the intermittent sentence of 90 days and completed the 150 hours of community work ordered as part of his probation, it would not be in the best interests of justice to order his re-incarceration. In this very specific context, the Court stays the enforcement of the order to re-incarcerate the respondent.
Text of the decision: Http://citoyens.soquij.qc.ca