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Charter - s.12 Cruel and Unusual Treatment or Punishment (2). R. v. Faroughi
In R. v. Faroughi (Ont CA, 2024) the Court of Appeal considered an appeal where the appellant argued successfully that the mandatory minimum for "communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18" [CCC 286.1(2)] violated Charter s.12 'cruel and unusual treatment or punishment' [see para 54,56,67-85,107-124].
. R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal considered a form of 'mootness' doctrine, here where the court might allow (and did) a Charter s.12 ['cruel and unusual'] mandatory minimum sentence challenge to the penalty for sexual assault, even though it was not necessary for the case before it:[52] The trial judge, in imposing the 12-month sentence, made no reference to the mandatory minimum for the sexual assault conviction, although her colloquy with trial counsel at the sentencing hearing confirmed the application of the mandatory minimum and clarified that, at the sentencing hearing, the appellant had not challenged the constitutionality of the mandatory minimum.
[53] The respondent submits both that the sentence was fit, and that, as a result, there is no need to consider the constitutionality of the mandatory minimum as it had no bearing on the result in this case. However, should this court proceed to consider the constitutionality of the mandatory minimum, the respondent concedes that the present case cannot be distinguished from analogous cases where mandatory minimum sentences have been struck down as a violation of s. 12 of the Charter.
[54] In R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, this court struck down the mandatory minimum sentence of 12 months’ imprisonment for sexual interference as it constituted cruel and unusual punishment under s. 12 of the Charter. This decision was based on reasonable hypotheticals posited by appellate courts across Canada: see e.g., Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400.
[55] For example, in B.J.T., at para. 73, this court referred to the hypothetical proposed in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, an analogous case to the one on appeal:In Scofield, the B.C.C.A. postulated a hypothetical where two young people meet at a party; one is almost 16, while the other recently turned 21… The two people drink alcohol and smoke marijuana, reducing their inhibitions. They go to a private bedroom where they engage in some kissing and brief sexual touching over their clothing for ten minutes. They act willingly and know each other’s ages. Neither has a criminal record. Harris J.A. concluded that a one-year sentence for that conduct would be grossly disproportionate to a proportionate sentence which would not necessarily involve imprisonment or even a conditional sentence. He also added that if the 21-year-old had a disability that reduced his moral culpability or if Gladue factors applied, ... those two characteristics of the offender could make the mandatory minimum sentence more disproportionate. [56] The respondent submits that the impugned mandatory minimum sentencing provision had no effect on the sentence, and a sentence lower than the mandatory minimum would be unfit. The provision’s constitutionality is moot and need not be decided. As the Supreme Court of Canada stated in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 18:To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process. [57] A similar approach was taken in R. v. Hewitt, 2018 ONCA 561, at paras. 3-5, where this court declined to hear a constitutional challenge to a mandatory minimum for trafficking firearms, stating, at para. 5, “[i]t is not necessary for us to consider the appellant’s constitutional argument because it would not affect the sentence: R. v. Chambers, 2013 ONCA 680. Even if the mandatory minimum did not apply, the three-year sentence imposed in the circumstances of this case was fit and appropriate.” See also R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 30 C.R. (6th) 1 (Ont. C.A.), at para. 59.
[58] In our view, there is no basis to conclude that the 12-month sentence imposed was not fit, nor did the trial judge commit an error of principle in her analysis of the applicable sentencing principles. She properly considered the priority of the sentencing principles of denunciation and deterrence, the appellant's intellectual disability, and the impact of the offence on the complainant.
[59] We accept that this court has discretion in this case as to whether to consider the constitutional challenge to s. 271(a) of the Criminal Code, given the conclusion that the sentence of 12 months was otherwise fit. In our view, that discretion should be exercised in favour of deciding the issue, given the importance of clarity and certainty as to the applicability of the analysis in B.J.T. to the mandatory minimum for sexual assault.
[60] In our view, B.J.T. is not distinguishable. The hypotheticals cited in B.J.T. could also have been prosecuted as sexual assault of a minor. On that approach, those hypotheticals would also attract a minimum sentence of one-year under the provision impugned in this case. The respondent accepts that if a one-year sentence is grossly disproportionate for the hypothetical facts, this conclusion does not vary based on whether the facts are labelled sexual interference or sexual assault of a minor.
[61] This conclusion compels a holding that the one-year minimum sentence at issue in this case offends s. 12 of the Charter. The respondent does not argue that the minimum sentence is saved by s. 1 of the Charter. We note that this conclusion is consistent with several trial court decisions prior to B.J.T. holding that the mandatory minimum of 12 months for sexual offences is unconstitutional: see e.g., R. v. Gordon, 2018 ONSC 6217, at paras. 14-18, citing, inter alia, R. v. Hussein, 2017 ONSC 4202; and R. v. M.L., 2016 ONSC 7082, 367 C.R.R. (2d) 268. For trial and appellate decisions in other jurisdictions, see R. v. MacLean, 2021 NLCA 24, at paras. 49-50, and the cases cited therein.
[62] For these reasons, while the sentence of 12 months imposed on the appellant is affirmed, the mandatory minimum for sexual assault set out in s. 271(a) of the Criminal Code is unconstitutional, and pursuant to s. 52(1) of the Constitution Act, 1982, of no force or effect. . 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).
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[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.
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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. 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'].
At paras 114-121, 124-133 and 148-152 the court sets out it's Charter s.12 'reasonably foreseeable scenarios', whereby the court explores hypothetical scenarios in order to examine constitutionality. This is a relatively new - an essentially 'evidentiary' technique - that the court allows in Charter s.12 cases.
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