Vauclair, Ruel, Bachand

Motions for leave to appeal the sentences. Granted. Appeals from sentences. Dismissed in file 200-10-003752-206, with dissenting reasons. Allowed in file 200‑10‑003750-200, with dissenting reasons; a sentence of 12 months’ imprisonment is substituted for the sentence of 90 days’ imprisonment to be served intermittently imposed at trial. The minimum sentences provided in sections 163.1(4)(a) and 163.1(4.1)(a) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.) are declared constitutionally inoperative.

The Attorney General of Quebec seeks to overturn judgments rendered in seven files that ruled that the obligation to register with the National Sex Offender Registry and to comply with the Sex Offender Information Registration Act (S.C. 2004, c. 10) for life is inapplicable to the respondents. The AGQ also contests two judgments finding that the minimum sentences for the offences of possessing and accessing child pornography are inapplicable.

The constitutionality of the National Sex Offender Registry

Even though Thériault c. R. (C.A., 2009-01-30 (judgment corrected on 2009-02-16)), 2009 QCCA 185, SOQUIJ AZ-50534406, concluded that the obligations relating to the National Sex Offender Registry were not a sentence, it was legitimate for trial judges to review the foundations of that judgment in light of legislative amendments and more recent judgments. In the case at bar, the respondents are subject to lifetime orders under section 490.013(2.1) Cr. C., and this provision was declared inoperative by R. v. Ndhlovu (S.C. Can., 2022-10-28), 2022 SCC 38, SOQUIJ AZ-51889195, 2022EXP-2707. Therefore, the respondents will be subject to a shorter period. This issue has become moot.

The constitutionality of the minimum sentences

The files of respondents Senneville and Naud raise the issue of the constitutionality of the minimum sentences under sections 163.1(4)(a) and 163.1(4.1)(a) Cr. C. There is no evidence supporting a justification under section 1 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I). The judge found that several decisions, which were also reasonable scenarios contemplated in the notices of challenge, concluded that the minimum sentences violated section 12 of the Charter. The argument that reported cases are not reasonable hypothetical scenarios is rejected. The consistency with which Quebec trial courts have invalidated the minimum sentences at issue was relevant. The judge dealt with the issues of gross disproportionality, later addressed in R. v. Hills (S.C. Can, 2023-01-27), 2023 SCC 2, SOQUIJ AZ-51909661, 2023EXP-285, without naming them. The minimum sentences of 1 year of imprisonment for the offences of possessing and accessing child pornography are declared unconstitutional and inoperative because they are contrary to section 12 of the Charter.

Ruel J.A., dissenting, would have quashed the declarations of inoperability and unconstitutionality of the minimum sentences.

The appropriate sentences

Respondent Senneville was sentenced to 90 days’ imprisonment to be served intermittently on charges of possessing and accessing child pornography. The judge erred in law in stating that the number and nature of the images were mitigating circumstances. He erred in principle in applying a mathematical calculation with the number of images, the duration of the offence, and the sentence imposed as variables, in comparison with the circumstances described in R. c. Régnier (C.A., 2018-03-01), 2018 QCCA 306, SOQUIJ AZ-51472848, 2018EXP-663. The sentence imposed is demonstrably unfit. Respondent Senneville should be sentenced to the minimum 12 months’ imprisonment. Since the sentence remaining to be served is 9 months, reincarceration would not cause him injustice.

Vauclair J.A., dissenting, would have dismissed the appeal.

Respondent Naud was sentenced to 9 months’ imprisonment on 1 count of possessing child pornography. In the specific circumstances of the case, the 3-month difference between the minimum sentence and the sentence imposed is not sufficient to find a violation of section 12 of the Charter.

Ruel J.A., dissenting, would have allowed the appeal and ordered the respondent to serve the minimum sentence.

Text of the decision: http://citoyens.soquij.qc.ca