R. v. Bertrand Marchand, 2023 SCC 26

SUPREME COURT OF CANADA Citation: R. v. Bertrand Marchand, 2023 SCC 26 Appeals Heard: February 15, 16, 2023 Judgment Rendered: November 3, 2023 Dockets: 39935, 40093

Between: His Majesty The King and Attorney General of Quebec Appellants and Maxime Bertrand Marchand Respondent - and - Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, Nunavik Civil Liberties Association, Association québécoise des avocats et avocates de la défense, Barbra Schlifer Commemorative Clinic and Independent Criminal Defence Advocacy Society Interveners And Between: His Majesty The King and Attorney General of Quebec Appellants and H.V.

Respondent - and - Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, Association des avocats de la défense de Montréal and Independent Criminal Defence Advocacy Society Interveners Official English Translation: Reasons of Côté J. Coram: Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. Reasons for Judgment: (paras. 1 to 174) Martin J. (Karakatsanis, Rowe, Kasirer, Jamal and O’Bonsawin JJ. concurring)

Reasons Dissenting in Part: (paras. 175 to 232) Côté J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . His Majesty The King and Attorney General of Quebec Appellants v.

Maxime Bertrand Marchand Respondent and Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, Nunavik Civil Liberties Association, Association québécoise des avocats et avocates de la défense, Barbra Schlifer Commemorative Clinic and Independent Criminal Defence Advocacy Society Interveners - and - His Majesty The King and Attorney General of Quebec Appellants v. H.V.

Respondent and Director of Public Prosecutions, Attorney General of Ontario, Attorney General of Saskatchewan, Attorney General of Alberta, Association des avocats de la défense de Montréal and Independent Criminal Defence Advocacy Society Interveners Indexed as: R. v. Bertrand Marchand 2023 SCC 26 File Nos.: 39935, 40093. 2023: February 15, 16; 2023: November 3.

Present: Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. on appeal from the court of appeal for quebec Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Sentencing — Mandatory minimum sentence — Child luring — Accused persons pleading guilty to child luring — Accused persons challenging constitutionality of mandatory minimum sentences of one year’s imprisonment prescribed for child luring as indictable offence and of six months’ imprisonment for child luring punishable on

summary conviction — Whether mandatory minimum sentences constitute cruel and unusual punishment — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 172.1(2) (a), (b). Criminal law — Sentencing — Considerations — Child luring — Accused person pleading guilty to child luring and sexual interference — Sentencing judge imposing sentence of five months’ imprisonment for child luring to be served concurrently to sentence for sexual interference — Majority of Court of Appeal upholding sentencing judge’s decision — Whether accused person’s sentence for child luring was fit. M pleaded guilty to one count of sexual interference contrary to s. 151 (

a) of the Criminal Code and to one count of luring a child contrary to s. 172.1(1) (b). M met the victim in person when he was 22 and she was 13 years old . He then sent her a friend request on Facebook and, for the following two years, they were in contact on social media and also met in person, and had illegal sexual intercourse four separate times. At sentencing, M challenged the one-year mandatory minimum period of incarceration set out in s. 172.1(2) (

a) for persons found guilty of the indictable offence of luring a child, on the basis that it was inconsistent with s. 12 of the Charter , which protects against cruel and unusual punishment. The sentencing judge sentenced M to five months’ imprisonment on the count of luring, to be served concurrently to the sentence imposed on the count of sexual interference. The judge found the mandatory minimum sentence infringed s. 12 of the Charter as it would be grossly disproportionate to the fit sentence of five months.

The majority of the Court of Appeal upheld both the sentence imposed for luring and the conclusion that the mandatory minimum sentence was unconstitutional. The Crown appeals the fitness of M’s sentence for luring and asks the Court to find the mandatory minimum sentence in s. 172.1(2) (

a) constitutional. V pleaded guilty to one count of luring a child contrary to s. 172.1(1) (

a) of the Criminal Code . V sent sexual text messages to the victim over a period of 10 days. At sentencing, V challenged the six-month mandatory minimum sentence set out in s. 172.1(2) (

b) for persons found guilty of the offence of luring punishable on

summary conviction, on the basis that it violated s. 12 of the Charter . The sentencing judge imposed a sentence of two years’ probation and 150 hours of community service after finding that the mandatory minimum sentence would be grossly disproportionate to the fit sentence. On appeal, the Superior Court varied the sentence to four months’ imprisonment. The court then determined that the mandatory minimum sentence infringed s. 12 since, although it was not grossly disproportionate to V’s fit sentence of four months, it would be when applied to reasonably foreseeable scenarios.

The Court of Appeal upheld that decision. The fitness of V’s sentence is not challenged before the Court. The Crown asks the Court to find the mandatory minimum sentence in s. 172.1(2) (

b) constitutional. Held (Côté J. dissenting in part): The appeal in M’s case should be allowed in part. The appeal in V’s case should be dismissed. Per Karakatsanis, Rowe, Martin , Kasirer, Jamal and O’Bonsawin JJ.: M’s sentence for luring a child should be increased from 5 months’ to 12 months’ imprisonment, and it should be served consecutively, not concurrently, to his sentence for sexual interference. The mandatory minimum sentences for luring a child set out in s. 172.1(2) (

a) and (

b) of the Criminal Code are inconsistent with s. 12 of the Charter , are not saved by s. 1 and therefore are of no force or effect under s. 52 of the Constitution Act, 1982 . To protect a range of social interests, namely the vulnerability and exploitation of children facilitated by the internet, Parliament enacted the offence of luring a child at s. 172.1 of the Criminal Code .

The offence has three elements: (1) the accused must communicate intentionally by telecommunication; (2) with someone the accused knows or believes is under 18 years of age, and (3) for the specific purpose of facilitating the commission of a designated secondary offence listed in s. 172.1(1) with respect to the underage person.

Parliament’s creation of this inchoate preparatory offence that criminalizes communications that precede the perpetration of other designated secondary offences indicates that luring generates harms that are different from those secondary offences and is sufficiently wrongful and harmful to ground criminal liability. Child luring is a hybrid offence that carries a mandatory minimum sentence of one year’s imprisonment if the offender is guilty of an indictable offence ( s. 172.1(2) (a)) and of six months’ imprisonment if the offender is guilty of an offence punishable on

summary conviction ( s. 172.1(2) (b)). Pursuant to s. 718.1 of the Criminal Code , a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A fit and proportionate sentence must be crafted based on the particular facts of the case and in light of existing legislation and case law. Furthermore, in s. 718.01, Parliament has specifically indicated that in sentencing offences involving abuse of children, including child luring, the objectives of denunciation and deterrence must be given primary consideration.

While a judge can accord significant weight to other sentencing objectives, including rehabilitation, the provision limits judicial discretion as a judge cannot give these other objectives precedence or equivalency. In addition to the steps that Parliament has taken to punish the various forms that abuse of children may take, the Court’s decision in R. v. Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424 , sets out sentencing principles for sexual offences against children to fully reflect and give effect to the profound wrongfulness and harmfulness of these crimes.

Friesen sends the clear message that s entences for these crimes must account for the far-reaching and ongoing damage sexual violence causes to children, families and society at large. With respect to the offence of child luring, understanding its wrongfulness and distinct harmfulness is integral to properly assessing its gravity and the degree of responsibility of the offender, as well as to avoiding stereotypical reasoning and the misidentification of aggravating and mitigating factors.

Luring is wrongful, as adults take advantage of a child’s weaker position and lack of experience online where they are particularly exposed and helpless, which repudiates the fundamental value of protecting children. Luring invades a child’s personal autonomy, sexual integrity, and gravely wounds their dignity. Even when the only interactions with the child occur online, the offender’s conduct is inherently wrong because it still constitutes a form of sexual abuse.

Furthermore, luring is harmful as it can constitute a form of psychological sexual violence, bringing about serious emotional and psychological harm. It also causes distinct psychological and developmental harms to young victims that differ in two main ways from harms arising from sexual contact initiated in person. First, o nline communications allow for abusers to abuse remotely and for manipulation and control over time, which can lead to serious and lasting psychological consequences.

Second, an offender’s power and effectiveness online lies in the degree to which they can control the victim and manipulate them into engaging with the abuse, which may cause a victim to feel they actively participated in their own abuse, thereby increasing self-blame and shame. Although identifying the distinct harms of luring is difficult, one way for courts to do so is by differentiating between contact-driven luring, where the offender’s goal is to facilitate in-person sexual abuse, and luring that leads to sexual abuse occurring entirely online.

Contact-driven luring is not necessarily more or less harmful than luring that leads to sexual abuse that occurs entirely online. The severity of the harm caused by the online communication will depend on the individual offender, the individual characteristics of the victim, and the unique dynamic between the offender and the victim. Parliament has consistently raised sentences for sexual offences against children to reflect a growing awareness of their gravity, and to indicate the serious emotional and psychological harms they cause for victims.

Given the wrongfulness and distinct harms of luring, this same increasingly punitive trend applies to that offence. Appellate intervention in a sentencing judge’s decision will be justified only if a sentence is demonstrably unfit or if the judge committed an error in principle that impacted the sentence imposed. In M’s case, the sentencing judge committed errors in principle that impacted the assigned sentence of five months’ imprisonment ordered to be served concurrently and that warranted appellate intervention that the majority of the Court of Appeal failed to undertake.

Specifically, the judge erred by (1) minimizing the harm caused to the victim by failing to recognize the grooming that did occur, which should have served as an aggravating factor on sentencing; (2) misconstruing the offender’s actions, which caused her to unduly minimize the wrongfulness and harms of the luring offence; and (3) assigning a concurrent sentence for the luring offence. To properly account for the distinct legal interests that the luring offence protects , that is, the vulnerability and exploitation of children facilitated by the internet, the sentences should have been consecutive.

Parliament’s legislative initiatives, the distinct harm caused by the online communication, and the aggravating and mitigating factors instead justify a sentence of 12 months’ imprisonment for M. 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. 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. First, a court must set a fit and proportionate sentence for the individual offenders before the court and possibly other reasonably foreseeable offenders. Second, a court must determine whether the mandatory minimum requires imposing a sentence that is grossly disproportionate to the otherwise fit and proportionate sentence. 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.

While a proper understanding of the wrongfulness and harmfulness of luring will lead to significant penalties in most circumstances, the constitutional analysis under s. 12 of the Charter does not merely ask whether the mandatory minimum is cruel and unusual in common cases. Punishments can be impugned where they infringe the s. 12 Charter rights of a reasonably foreseeable offender. Indeed, the use of reasonably foreseeable scenarios is expressly designed to test the lower end of the spectrum of conduct captured by the offence.

As such, when parties raise hypothetical scenarios as part of the adversarial process, a court should not dismiss a constitutional challenge without considering (1) whether the scenario is reasonably foreseeable and, if so, (2) whether the representative offender’s scenario could render the impugned law unconstitutional. In M’s case, the fit sentence of 12 months’ incarceration mirrors the one-year mandatory minimum sentence. As a result, the minimum sentence is not grossly disproportionate in his circumstances.

In V’s case, the six-month mandatory minimum term of imprisonment is not grossly disproportionate to the fit sentence of four months’ imprisonment. Reasonably foreseeable scenarios must therefore be considered to determine whether the mandatory minimum sentences are unconstitutional. For the purposes of the constitutionality analysis for the one-year mandatory minimum sentence in s. 172.1(2) (a), the first reasonably foreseeable scenario involves a representative offender who is a first-year high school teacher in her late 20s with bipolar disorder and with no criminal record.

One evening, she texts her 15-year-old student to inquire about a school assignment. Feeling manic, she directs the conversation to sexual matters. The two meet that evening and participate in sexual touching. The offender does not engage inappropriately with the student again and pleads guilty and expresses remorse on sentencing. For the purposes of the constitutionality analysis for the six-month mandatory minimum sentence in s. 172.1(2) (b), the reasonably foreseeable scenario involves an 18-year old representative offender who is in a relationship with a 17-year-old.

In one text, the offender asks her to send him an explicit photo. She does, and he then forwards that photo to his friend without his girlfriend’s knowledge. This friend, who is also 18, does not transmit this photo, but retains it on his mobile phone. In addressing the first stage of the s. 12 analysis of setting the fit and proportionate sentence for the representative offender, courts must define as specific a sentence as possible by considering the sentencing objectives set out in the Criminal Code and by examining any aggravating and mitigating factors.

A fit sentence for the luring offence committed by the representative offender in the first scenario is a 30-day intermittent sentence. Such a sentence recognizes the inherent seriousness and potential harms associated with the offence and appropriately denounces the offender’s conduct, while being mindful of her diminished moral blameworthiness and the mitigating factors at play. A fit sentence for the luring offence committed by the representative offender in the second scenario is a six-month conditional discharge, with strict probationary terms.

The offender engaged in a serious breach of the victim’s privacy and dignity that should be condemned by a criminal sanction. However, the significant mitigating factors in this scenario, most notably the offender’s youth and lack of a criminal record, warrant a sentence on the low end of the spectrum. At the second stage of the s. 12 analysis, the scope and reach of the offence must be examined. Courts should assess how broad a range of conduct is captured by the actus reus and mens rea of the offence and consider the included degree of variation in the offence’s gravity and the offender’s culpability.

The actus reus of child luring includes communication with the victim by use of any telecommunication platform. This demonstrates the massive breadth of the luring offence. Regarding the mens rea , the specific intent element — that the accused must communicate with the purpose of facilitating a designated offence — is broad. An accused may impulsively communicate in a sexual manner — and in that moment have the specific intent required — without having taken time beforehand to plan or prepare to execute a secondary offence.

The offence therefore captures a wide range of designated illicit purposes with varying degrees of moral culpability. The range of conduct captured by the luring offence is also staggering. The offender need only

communicate with an underage person for the purpose of facilitating one of the twenty designated secondary offences which are, amongst themselves, of varying degrees of seriousness and wide in scope. These features of the luring offence further threaten the constitutionality of its mandatory minimum penalties. Next, in analyzing the effect of the punishment on representative offenders, courts must consider the qualities of the reasonably foreseeable offender, and then evaluate what harm may result from the impugned punishment.

Evidence that imprisonment would have significant deleterious effects on an offender should be considered at this stage. In the instant scenarios, the mandatory minimum punishment is alternatively one year’s or six months’ incarceration. The effect of the one-year mandatory minimum on the first representative offender is harsh, as it would replace a short intermittent sentence with a year of incarceration, and the offender’s individual circumstances, namely her mental illness, would likely make her experience of incarceration perilously grave.

The second representative offender is a youthful first-time offender who, holding high rehabilitative prospects, should benefit from the shortest possible sentence proportionate to the offence. In prison, youthful offenders are often bullied, pressured to join adult prison gangs, and are vulnerable to segregation placements. The six-month mandatory minimum is a far cry from the shortest possible rehabilitative sentence for this offender. These factors indicate the mandatory minimum sentences’ constitutional infirmity.

Finally, turning to the penalty and its objectives, luring is a serious offence that must be punished accordingly. The offence dovetails with s. 718.01 which directs that in imposing sentences for offences involving abuse of children, primary consideration must be given to the objectives of denunciation and deterrence. Parliament’s decision to increase the maximum penalties over the years for the luring offence indicates its view of the gravity of the offence. Parliament enacted s. 172.1 in response to the growth of the internet as a burgeoning domain for predators to target children.

Child luring not only lays the foundation for dangerous in-person criminal offences, it also causes its own distinct harm to child victims. However, the mandatory minimum sentences go beyond what is necessary to achieve Parliament’s sentencing objectives. The incredible breadth of the luring offence and its harsh effect on representative offenders paired with the discordant internal scheme of the penalty renders the mandatory minimum sentences in s. 172.1(2) constitutionally infirm. The mandatory minimum penalties in both s. 172.1(2)(

a) and (

b) are therefore grossly disproportionate to the fit sentences for the representative offenders and hence unconstitutional. Per Côté J. (dissenting in part): The appeals should be allowed. There is agreement with the majority concerning the sentence to be imposed on M. However, the minimum terms of imprisonment of six months or one year, depending on whether the Crown proceeds summarily or by indictment, as provided for in s. 172.1(2) (

a) and (

b) of the Criminal Code , are not contrary to s. 12 of the Charter . The four-month sentence imposed on V should therefore be set aside and the mandatory minimum sentence of six months’ imprisonment should be imposed on him, with a permanent stay of execution. According to Friesen , courts must impose more severe sentences on offenders who have committed offences that involve the abuse of children and must prioritize denunciation and deterrence, as required by s. 718.01 of the Criminal Code . The imposition of minimum terms of imprisonment of one year on M and six months on V is not cruel and unusual.

Nor do the two reasonably foreseeable hypothetical scenarios identified by the majority show that the minimum sentences provided for in s. 172.1(2) are grossly disproportionate. For the offender in the first reasonably foreseeable hypothetical scenario, a 30-day term of imprisonment to be served intermittently is far too lenient a sentence. The conduct of an offender who takes advantage of her status as a teacher to exploit a child for sexual purposes is highly blameworthy and is likely to have devastating consequences for the child victim.

This harm is all the more serious given the fact that the commission of the offence involves abuse of a position of trust and authority. Moreover, the fact that

an act was committed spontaneously does not automatically lead to the conclusion that an offender had no subjective intent to act and that the conduct in question is therefore less blameworthy. The absence of grooming and premeditation must have a neutral effect on sentencing.

Given the moral blameworthiness inherent in an offence like child luring, the abuse of a position of trust and the commission of an underlying offence, and also given the significant age difference between the offender in the first scenario and the complainant as well as the complainant’s vulnerability, the fit and appropriate sentence is a nine-month term of imprisonment. Such a penalty acknowledges the role played by the offender’s mental illness, along with her guilty plea and the remorse she expressed.

The fit and appropriate sentence for the offender in the second reasonably foreseeable hypothetical scenario — who was in a romantic relationship with the underage victim and who abused a position of trust in relation to her — is not a conditional discharge but rather a six-month term of imprisonment. Denunciation and deterrence must be prioritized in the context of the commission of an offence involving the abuse of the offender’s intimate partner as well as in cases involving sexual violence against a minor, two aggravating circumstances that increase the subjective gravity of the offence.

Rehabilitation of an offender with no record who has just reached adulthood is not a paramount factor for serious offences or offences involving violence. The weight to be given to the offender’s young age and to the absence of a criminal record therefore depends on the nature of the offence of which the offender is convicted. Taking advantage of the existence of a relationship of trust is likely to increase the harm to the victim and thus the gravity of the offence. It will be more difficult to grant a discharge for offences committed against a child or an intimate partner.

Given that the fit and appropriate sentence is equal to or greater than a six-month term of imprisonment in both reasonably foreseeable hypothetical scenarios, the first stage of the analytical framework that must be applied under s. 12 of the Charter decides the constitutionality of s. 172.1(2) (b). The second stage of the analytical framework therefore concerns the constitutionality of the one-year minimum term of imprisonment set out in s. 172.1(2) (a).

To begin with, while the offence of child luring is broad in scope, requiring a high level of mens rea ensures that the offence captures only conduct that involves a high degree of moral blameworthiness as well as serious harm or a risk of such harm. Even when the offence of luring is committed in the context of a police sting operation that does not involve children, the offence involves conduct that is undeniably very serious, and it must never be seen as a victimless crime.

In addition, one must be careful not to emphasize the fact that it is not necessary for the offender to have committed one of the listed underlying offences in order to be convicted of child luring. Sophistication and premeditation also reveal nothing about the scope of the offence, because they are not essential elements of the offence. Next, the effects of the minimum term of imprisonment on the offenders in the reasonably foreseeable hypothetical scenarios

are not incompatible with human dignity. Nothing in the record makes it possible to identify the precise harm associated with theadditional period of imprisonment of three months in the first case and six months in the second case if the offence is prosecuted byindictment. Since the period is relatively short, its effects are not incompatible with human dignity.

The logical consequence of findingthat the individual circumstances of the offender in the first scenario would likely make her experience of incarceration perilously grave,and that the minimum sentence is a far cry from the shortest possible rehabilitative sentence for the offender in the second scenario, isthat any minimum term of imprisonment that may be imposed on an offender who has just reached adulthood or on a person with amental illness will be grossly disproportionate, regardless of the gravity of the offence or the circumstances surrounding its commission.This consequence is entirely inconsistent with the deference owed to Parliament.

Lastly, the minimum term of imprisonment is not grossly disproportionate to what is necessary to achieve Parliament’sobjectives. The difference of three or six months between the fit and appropriate sentence and the sentence provided for in s. 172.1(2)(a)is not so great as to show that the punishment chosen by Parliament grossly exceeds what is necessary to achieve its objectives ofdeterrence and denunciation of sexual violence against children. The fact that there may be some disproportion the application of whichleads to a demonstrably unfit punishment is not sufficient to declare s. 172.1(2)(

a) and (

b) unconstitutional. The question is not whetherParliament chose the least restrictive means to achieve its objectives. Parliament is perfectly at liberty to prioritize denunciation anddeterrence to the near complete exclusion of rehabilitation, provided that it leaves a door open for this latter objective. It has not beenshown how, by creating minimum terms of imprisonment in s. 172.1(2), Parliament has completely excluded this objective.

In light of the pronouncements in Friesen and the high standard that applies in an analysis under s. 12 of the Charter,sentencing an offender to imprisonment for six months or one year for communicating with a minor for the purpose of facilitating thecommission of a sexual offence or other specified offence against the minor is not one of the instances in which the demanding andrarely attained standard of gross disproportionality is met. Cases Cited By Martin J. Applied: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Hills, 2023 SCC 2; considered: R. v. Morrison, 2019 SCC15, [2019] 2 S.C.R. 3; R. v.

Rayo, 2018 QCCA 824; R. v. Melrose, 2021 ABQB 73, [2021] 8 W.W.R. 467; R. v. Paradee, 2013 ABCA41, 542 A.R. 222; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269; R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670; referred to: R. v.Reynard, 2015 BCCA 455, 378 B.C.A.C. 293; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. Legare, 2009 SCC 56, [2009] 3S.C.R. 551; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v. Collins, 2013 ONCA 392; R. v. Nasogaluak, 2010 SCC 6, [2010] 1S.C.R. 206; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. J. (T.), 2021 ONCA 392, 156 O.R. (3d) 161; R. v.

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Hajar, 2016 ABCA 222, [2016] 12 W.W.R. 435; R. v. L. (J.-J.)(1998), (QC CA), 126 C.C.C. (3d) 235; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v.Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Bissonnette,

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T. (K.), 2008 ONCA 91, 89 O.R. (3d) 99; R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403; R. v.Brown, 2015 ONCA 361, 126 O.R. (3d) 797; R. v. Khalid, 2010 ONCA 861, 103 O.R. (3d) 600; Lévesque v. R., 2021 QCCA 1072; R. v.Bergeron, 2013 QCCA 7; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v.Alicandro, 2009 ONCA 133, 246 C.C.C. (3d) 1; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045. Statutes and Regulations Cited Act to amend the Criminal Code (luring a child), S.C. 2007, c. 20, s. 1.

Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32,s. 24. Bill C-15, Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.). Canadian Charter of Rights and Freedoms, ss. 1, 12. Constitution Act, 1982, s. 52. Criminal Code, R.S.C. 1985, c. C-46, ss. 151, 152, 153(1), 155, 160(3), 163.1, 170, 171, 172.1, 173(2), 271, 272, 273, 279.011,279.02(2), 279.03(2), 280, 281, 286.1(2), 286.2(2), 286.3(2), 718, 718.01, 718.1, 718.2, 718.3(4)(b)(i), (7), 730(1).

Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 8.

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APPEAL from a judgment of the Quebec Court of Appeal (Levesque, Cotnam and Beaupré JJ.A.), 2021 QCCA 1285 , [2021] AZ-51790428, [2021] Q.J. No. 9996 (QL), 2021 CarswellQue 23990 (WL), affirming a declaration of unconstitutionality of the mandatory minimum sentence in s. 172.1(2) (

a) of the Criminal Code and a sentence entered by Bélanger J.C.Q., 2020 QCCQ 1135 , [2020] AZ-51677243, [2020] J.Q. n o 1779 (QL), 2020 CarswellQue 2109 (WL). Appeal allowed in part, Côté J. dissenting in part. APPEAL from a judgment of the Quebec Court of Appeal (Schrager, Moore and Kalichman JJ.A.), 2022 QCCA 16 , [2022] AZ-51821456, [2022] Q.J. No. 51 (QL), 2022 CarswellQue 21032 (WL), affirming a decision of Lachance J., 2021 QCCS 837 , [2021] AZ-51747400, [2021] J.Q. n o 2257 (QL), 2021 CarswellQue 3559 (WL), which affirmed a declaration of unconstitutionality of the mandatory minimum sentence in s. 172.1(2) (

b) of the Criminal Code and varied a sentence entered by Garneau J.C.Q. Appeal dismissed, Côté J. dissenting. Lina Thériault , Nicolas Abran and Joanny Houde St-Pierre , for the appellant His Majesty The King ( 39935) . Éric Bernier and Lina Thériault , for the appellant His Majesty The King (40093) . Alexandre Duval , Michel Déom , Sylvain Leb œ uf and Julie Dassylva , for the appellant the Attorney General of Quebec ( 39935) . Maxime Seyer-Cloutier , Alexandre Duval , Sylvain Lebœuf and Julie Dassylva , for the appellant the Attorney General of Quebec (40093) .

Samuel Bérubé de Deus , for the respondent Maxime Bertrand Marchand . Vincent R. Paquet and Tristan Desjardins , for the respondent H.V. Julie Laborde and François Lacasse , for the intervener the Director of Public Prosecutions. Vallery Bayly and Jennifer A. Y. Trehearne , for the intervener the Attorney General of Ontario. Grace Hession David and Katherine Roy , for the intervener the Attorney General of Saskatchewan. Andrew Barg , for the intervener the Attorney General of Alberta. Christine Renaud , for the intervener the Nunavik Civil Liberties Association.

Hugo Caissy , for the intervener Association québécoise des avocats et avocates de la défense. Neha Chugh , for the intervener the Barbra Schlifer Commemorative Clinic. Réginal Victorin and Walid Hijazi , for the intervener Association des avocats de la défense de Montréal. Caroline L. Senini , for the intervener the Independent Criminal Defence Advocacy Society. The judgment of Karakatsanis, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. was delivered by Martin J. — I.

Overview [ 1 ] Modern means of communication, including the internet, permit unprecedented and unsupervised access to children [1] in many places once thought to be safe havens, such as their homes. Children, who now spend significant amounts of time online, are increasingly susceptible to online exploitation and abuse. The dangers of sexualizing children are increasingly well-documented and the harms that result from their victimization are now more fully understood.

As a result, Parliament has taken several steps to prevent and punish the various forms that abuse of children may take, including enacting a separate offence of child luring, which is set out at s. 172.1(1) of the Criminal Code , R.S.C. 1985, c. C-46 .

This offence is committed when an adult uses technology to communicate with a child, or a person believed to be a child, for the purposes of facilitating a designated secondary sexual offence against that child. [2] Luring is a hybrid offence that carries two different mandatory minimum periods of incarceration depending on whether the Crown elects to proceed summarily or by indictment. [ 2 ] Two legal issues arise in these companion appeals. First, in Mr. Bertrand Marchand’s matter, the Crown appellants have questioned the fitness of Mr. Bertrand Marchand’s sentence for luring.

This requires an examination of the sentencing principles for this separate and specific offence, based on a modern understanding of its gravity and associated harms. In R. v. Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424, this Court articulated the various serious and potentially life-long consequences associated with sexual violence

against children. I build on that analysis and explain the distinct harms of the child luring offence so that its full gravity animates thegoverning sentencing principles and informs their constitutional status. In Mr. Bertrand Marchand’s case, after applying the correctsentencing principles, I increase his sentence from five months to one year imprisonment, and find that it should be served consecutively,and not concurrently, to the other offence for which he was sentenced.

In H.V.’s matter, the fitness of H.V.’s sentence was notchallenged before this Court. [3] Second, both respondents in the companion appeals ask the Court to uphold the conclusions in the respective courtsbelow that the mandatory minimum sentences outlined in s. 172.1(2)(

a) and (

b) are inconsistent with s. 12 of the Canadian Charter ofRights and Freedoms and therefore of no force or effect. Mr. Bertrand Marchand argues against the one-year mandatory minimum periodof incarceration imposed when the Crown proceeds by indictment (s. 172.1(2)(a)), and H.V. impugns the six-month mandatory minimumperiod of incarceration imposed when the Crown proceeds summarily (s. 172.1(2)(b)). For their part, the Crown appellants ask that theCourt affirm the constitutionality of the mandatory minimum sentences. While this Court has previously noted that the one-yearobligatory penalty concerning s. 172.1(2)(

a) is “constitutionally suspect” (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 146),this is the first time the Court squarely addresses the constitutional validity of both penalties. [4] A thorough analysis reveals that these mandatory minimum sentences infringe the Charter’s s. 12 protection againstcruel and unusual punishment.

The mandatory periods of incarceration apply to such an exceptionally wide scope of conduct that theresult is grossly disproportionate punishments in reasonably foreseeable scenarios. [5] Invalidating the mandatory minimums does not mean that child luring is a less serious offence. Based on the distinctand insidious psychological damage luring generates, in some cases the appropriate penalty for child luring will be imprisonment for aperiod equal to or longer than that set out in the unconstitutional mandatory minimum sentences.

In these appeals, the reasonablyforeseeable scenarios proffered produce fewer harms, and are presented in circumstances where the moral culpability of the offender isreduced. The broad reach and range of the offence means that a defined minimum period of imprisonment in all cases will sometimesproduce results so excessive as to outrage standards of decency. II.

The Luring Offence [6] Since 1987, Parliament has taken a “child-centred” approach to sexual offences against children, emphasized theinherently exploitative nature of adult/child sexual contact, and focussed on the profound harms these crimes produce (see Bill C-15, AnAct to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.); Friesen, at para. 53). [7] To protect a range of social interests, Parliament enacted the offence of “luring a child”, at s. 172.1 of the CriminalCode, in 2002 (Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 8), and introduced the mandatory minimum sentences ins. 172.1(2)(

a) and (

b) of that provision, in 2012 (Safe Streets and Communities Act, S.C. 2012, c. 1, s. 22). The online world and digitalcommunications between adults and children warrant special regulation because children are particularly vulnerable to manipulation inonline settings (R. v. Rayo, 2018 QCCA 824, at para. 141 , per Kasirer J.A.). The internet has infinitely expanded theopportunity for offenders to attract or ensnare children and the enactment of a distinct crime protects them from the possibility of sexualexploitation facilitated by the internet (R. v. Reynard, 2015 BCCA 455, 378 B.C.A.C. 293, at para. 19).

The luring offence helps keepchildren safe in a virtual environment and was intended to meet “the very specific danger posed by certain kinds of communications viacomputer systems” (R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 36, per Doherty J.A.). [8] Parliament thus created this inchoate preparatory offence to criminalize sexualized communications with childrenthat precede or pave the way for the perpetration of other offences set out in the Criminal Code (Rayo, at para. 9; R. v. Legare, 2009 SCC56, [2009] 3 S.C.R. 551, at para. 25; Alicandro, at para. 20, citing A.

Ashworth, Principles of Criminal Law (5th ed. 2006), atpp. 468-70). The purpose of s. 172.1 is both remedial and preventative. It was enacted “to combat the very real threat posed by adultpredators who attempt to groom or lure children by electronic means” (Morrison, at para. 39). The provision seeks to safeguard childrenfrom sexual abuse by identifying and apprehending offenders before they commit a designated offence (Legare, at paras. 25-27, citingAlicandro). [9]

Section 172.1(1) and (2) reads: 172.1

(1) Every person commits an offence who, by a means of telecommunication, communicates with (

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of anoffence with respect to that person under subsection 153(1),

section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2),286.1(2), 286.2(2) or 286.3(2); (

b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of anoffence under

section 151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 with respect to that person; or (

c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of anoffence under

section 281 with respect to that person.

(2) Every person who commits an offence under subsection (1)

(

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. [ 10 ] The text, context and purpose of s. 172.1(1) demonstrates that it casts, and was intended to cast, a wide net of potential liability for those who lure children in a virtual environment. This provision is triggered by communicating by a means of telecommunication, which is defined broadly in s. 35(1) of the

Interpretation Act , R.S.C. 1985, c. I-21 . While the communication must be for the purpose of facilitating any one of the designated secondary offences against children found in s. 172.1 , there are 20 such secondary offences listed. The scope of these secondary offences is extensive and covers a wide range of conduct, including sexual exploitation, sexual assault, incest and child pornography. [ 11 ]

Section 172.1(1) proscribes communicating by telecommunication with an underage person or a person the accused believes to be underage for the purpose of facilitating the commission of the designated secondary offences with respect to that person ( R. v. Levigne , 2010 SCC 25 , [2010] 2 S.C.R. 3, at para. 23 ; Morrison , at para. 4 ). While a specific intention to facilitate a designated secondary offence forms part of the requisite mens rea , criminal liability will “crystallize” before any actions are taken on the part of the accused to engage in a designated offence ( R. v. Collins , 2013 ONCA 392 ).

The offence of luring does not require that the parties ever meet or touch. [ 12 ] Though luring requires that an offender intend to facilitate the commission of a listed secondary offence, the offence of luring is separate and independent from that secondary offence. The preparatory conduct of luring, meant to “culminate in the commission of a completed crime” ( Legare , at para. 25 ), produces its own distinct form of wrongfulness and harms.

By making luring a discrete offence, Parliament indicated that these illegal communications generate harms that are different from those caught in the secondary offences in s. 172.1(1) , and they are sufficiently wrongful and harmful to ground criminal liability. [ 13 ] Many cases of luring involve multiple communications over a period of time, or what is sometimes described as “grooming”. However, luring does not require sustained contact.

When the other elements of the offence are satisfied, the offence can be committed even by sending one message. [ 14 ] The luring offence captures communications sent to an actual child, which means a person under 18 years of age (or 16 or 14, depending on the applicable paragraph). It also applies whenever the adult believes the recipient of the communication is a child, even if that is not in fact the case.

As a result, criminal liability may arise when the adult’s internet interlocutor is really a police officer pretending to be a child during a “sting operation”. [ 15 ] Child luring is a hybrid offence, meaning that the Crown can choose, based on factors such as the seriousness of the accused’s actions and the harm caused, to proceed either by indictment or summarily. Parliament has set two mandatory minimum penalties for luring, in s. 172.1(2)(

a) and (b), depending on how the charge is laid. The indictable offence of luring for which Mr. Bertrand Marchand was charged carries a mandatory minimum punishment of one year’s imprisonment and a maximum of 14 years. The

summary conviction offence for which H.V. was charged carries a mandatory minimum punishment of six months’ imprisonment and a maximum of two years less a day. Both offenders pleaded guilty to child luring and challenged the constitutionality of these mandatory minimum punishments as applied to themselves or other reasonably foreseeable offenders. Mr. Bertrand Marchand’s sentence for one of the designated secondary offences, sexual interference, is not at issue in this appeal. III. The Appeal of Mr.

Bertrand Marchand’s Sentence [ 16 ] Before this Court, apart from the constitutional question raised, the Crown in Mr. Bertrand Marchand’s case also separately appealed the fitness his five-month concurrent sentence for luring. In this part of the reasons, I set out the facts and judicial history of that appeal, apply the approach and insights of Friesen to the specific wrongfulness and harms of child luring, review the errors committed by the sentencing judge and set a fit and proportionate sentence for Mr. Bertrand Marchand. A.

Facts [ 17 ] Maxime Bertrand Marchand met the victim in person in early August 2013, when he was 22 and she was, to his knowledge, 13 years old. In the weeks that followed, he sent her a friend request on Facebook, which she accepted. Over the next two years, they were in contact on social media and also met in person. Between August 1, 2013 and July 19, 2015, Mr. Bertrand Marchand had illegal sexual intercourse with the victim four separate times. As a result of these events, the Crown charged him with one count of sexual interference contrary to s. 151 (

a) of the Criminal Code for this time period. [ 18 ] Mr. Bertrand Marchand was also charged with one count of luring a child contrary to s. 172.1(1) (b). Throughout their contact, Mr. Bertrand Marchand used Facebook messenger, and other means of telecommunications, to stay in touch with the victim and to arrange meetings. The time frame in the luring count was restricted to the period between February 25, 2015 and September 13, 2015.

During this period, he turned 24 and she was 15. [ 19 ] In the fall of 2014, as well as during the period covered in the indictment for the count of luring, the victim was living at a rehabilitation centre. Mr. Bertrand Marchand’s online communications with the victim repeatedly raised the possibility of getting together in person and resulted in a meeting on July 19, 2015, which formed the basis for the fourth occurrence of sexual interference. On that day, the victim paid a weekend visit to her foster family, but afterwards did not return directly to the rehabilitation centre. Instead, she went with Mr.

Bertrand Marchand to his home, and he had illegal sexual intercourse with her. After this, their social media exchanges became less frequent and eventually ceased completely. In September 2015, the victim provided her statement to the police

and filed a complaint. The communications that preceded and followed this final act of sexual interference form the basis for the luring charge against Mr. Bertrand Marchand . B. Judicial History [ 20 ] Mr. Bertrand Marchand pleaded guilty to one count of sexual interference and one count of child luring. He was sentenced to a 10-month term of imprisonment for sexual interference ( 2020 QCCQ 1135 ). The sentencing judge found that the appropriate sentence for the luring charge was five months’ imprisonment to be served concurrently to the sentence for sexual interference.

She imposed that sentence after finding the mandatory term of one year’s imprisonment infringed s. 12 of the Charter as it would be “grossly disproportionate” to the fit sentence of five months. It was therefore declared of no force or effect in his regard. [ 21 ] In fixing the luring sentence at five months’ imprisonment, the sentencing judge determined that this was not a [ translation ] “classic case” of luring where “a sexual predator . . . goes on the Internet to find a young victim and facilitate the commission of sexual offences” (para. 64).

The online communications were [ translation ] “instead repeated attempts, through the use of electronic conversations, to have sexual intercourse with her again” (para. 70).

She also held that [ translation ] “the means used by the offender to communicate with [the victim] is a generational choice rather than a means specifically chosen to anonymously browse various websites searching for a young victim” (para. 67) and added that “[w]ere it not for the adolescent’s access to this type of media, the offender never would have succeeded in maintaining the conversations that enabled them to have their repeated rendezvous” (para. 65). [ 22 ] The sentencing judge went on to distinguish this case from one of grooming, noting that [ translation ] “the acts . . . do not constitute grooming of the adolescent for the purpose of lowering her inhibitions and convincing her to participate in sexual activities” because “[the victim] had already consented to such activities three times” (para. 70).

She added that [ translation ] “[t]he luring to which the offender pleaded guilty does not cover a period of grooming in preparation for the commission of other offences. It concerns communications leading to the repetition of sexual encounters” (para. 78). [ 23 ] Ultimately, the sentencing judge found that the effects of the luring were unlike the usual cases. She concluded that the communications simply served the function of repeating “sexual encounters”, and that the communications were not grooming with the aim of “convincing [the victim] to participate in sexual activities” (para. 70).

Without this grooming, she found [ translation ] “[t]he distinct social interest that luring aims to protect in nearly every situation is not present here, given the specific circumstances of this case” (para. 79). As such, she concluded the luring sentence should be served concurrently with the 10 months’ imprisonment imposed in respect of the sexual interference offence. [ 24 ] The majority of the Quebec Court of Appeal ( 2021 QCCA 1285 ) dismissed the appeal as it saw no grounds to intervene.

It upheld both the punishment imposed for luring and the conclusion that the mandatory minimum sentence was unconstitutional. Levesque J.A., dissenting, would have allowed the appeal, set aside the luring sentence and the constitutional declaration of inoperability and sentenced Mr. Bertrand Marchand to 12 months’ imprisonment for luring to be served concurrently to the sentence for sexual interference. Because this was the sentence required under the impugned mandatory minimum, he declined to rule on its constitutionality even though Mr.

Bertrand Marchand had also impugned the penalty by advancing a reasonable hypothetical scenario involving a representative offender. [ 25 ] The appellants invite this Court to substitute Mr. Bertrand Marchand’s 5-month sentence with a sentence of 12 months’ imprisonment for the luring offence. They argue the sentencing judge should not have departed from the applicable sentencing range of 12 to 24 months or imposed a concurrent sentence. C. Mr. Bertrand Marchand’s Sentence Does Not Reflect This Court’s Direction in Friesen [ 26 ] Mr.

Bertrand Marchand was sentenced in March 2020 and this Court’s decision in Friesen was released in April 2020. This explains the appellants’ concern that the sentencing judge’s reasons were out of step with Friesen and Parliament’s intent in sentencing offenders for sexual offences against children (A.F., at para. 21).

I n Friesen , this Court set out sentencing principles for sexual offences against children to “fully reflect and give effect to the profound wrongfulness and harmfulness” of these crimes (para. 1). [ 27 ] A fit and proportionate sentence must be crafted based on the particular facts of the case and in light of existing legislation and case law ( R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206, at para. 43 ). Pursuant to s. 718.1 of the Criminal Code , it is a fundamental principle that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender (see also R. v.

Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089).

Section 718.2 enumerates a number of other sentencing principles, including the consideration of aggravating and mitigating circumstances and parity in sentencing. [ 28 ] Parliament has specifically indicated that in sentencing offences involving abuse of children, including child luring, the objectives of denunciation and deterrence must be given primary consideration or “ une attention particulière ” ( Friesen , at para. 101 ; Criminal Code , s. 718.01 ).

Section 718.01 ’s open textured language limits judicial discretion by giving priority to these objectives, but their primary importance does not exclude consideration of other sentencing objectives, including rehabilitation ( Rayo , at paras. 102-8 ). The judge can accord significant weight to other factors, but cannot give them precedence or equivalency ( Friesen , at para. 104 , citing Rayo , at paras. 103 and 107-8 ; see also R. v.

J. (T.) , 2021 ONCA 392 , 156 O.R. (3d) 161, at para. 27 ). [ 29 ] In Friesen , the offender was sentenced for sexual interference with a four-year-old child and the subsequent extortion of the child’s mother.

The Court noted expressly that, given these facts, its primary focus was to provide direction on how to impose fit and proportionate sentences for sexual interference “and closely related offences”, like sexual assault and incest (para. 44). [ 30 ] Friesen recognized that the focus of the legislative scheme of sexual offences against children has shifted to protect a child’s personal autonomy, bodily integrity, sexual integrity, dignity and equality (paras. 51 and 55, citing E. Craig, Troubling Sex: Towards a Legal Theory of Sexual Integrity (2012), at p. 68; see also R. v.

Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45, at paras. 172 , 174 and 185, per L’Heureux-Dubé, Gonthier and Bastarache JJ.). The Court outlined how sexual offences against children produce profound physical and psychological harms to the most vulnerable members of our society. It was deeply concerned with how the sexual assault of

children may produce shame, embarrassment, unresolved anger, a reduced ability to trust and fear that other people would also abusethem (Friesen, at para. 57). It set out the disproportionate impact of violence on girls, women, Indigenous persons and other vulnerablegroups. [31] Friesen sends the clear message that sentences for these crimes must account for the far-reaching and ongoingdamage sexual violence causes to children, families and society at large, which may take many years to manifest.

Consequently,sentences for offences involving sexual violence against children must generally increase to reflect society’s modern understanding ofsuch offences and Parliament’s choice to increase the sentences associated with these crimes (paras. 3-5). [32] Friesen sets out a useful method of analysis which places children, and the harm they suffer, at the centre of thediscussion. Its message is not limited to offences which include physical contact. Instead, its general framework and lessons can beapplied to sentencing other forms of sexual abuse of children.

Indeed, its sentencing principles “also have relevance to sentencing forother sexual offences against children, such as child luring” (para. 44; see also paras. 46-47). [33] In applying Friesen’s principles to the offence of child luring, I explore its inherent wrongfulness and distinct harmsand the legislative trend towards increasingly punitive sentences.

(1) The Wrongfulness of Luring [34] Sexual offences against children are crimes that wrongfully exploit children’s vulnerability (Friesen, at para. 5). Incommitting the offence of luring, the adult takes advantage of the child’s weaker position and lack of experience and by doing sorepudiates the fundamental value of protecting children (para. 65; R. v.

Melrose, 2021 ABQB 73, [2021] 8 W.W.R. 467, at para. 54).Children are particularly exposed and helpless online: the internet allows offenders direct, sometimes anonymous, and often secret orunsupervised access to children, frequently in the privacy and safety of their own homes (R. v. Folino (2005), (ONCA), 77 O.R. (3d) 641 (C.A.), at para. 25; R. v. Symes, [2005] O.J. No. 6041 (QL), at para. 29; R. v. Paradee, 2013 ABCA 41, 542 A.R.222, at para. 12; R. v. Hajar, 2016 ABCA 222, [2016] 12 W.W.R. 435, at paras. 279-80).

In these online fora, there is often very littlethat can be done to shield children from the inherent power imbalance present in luring (R. v. Sutherland, 2019 NWTSC 48, [2020] 3W.W.R. 771, at para. 50; Hajar, at para. 279). Luring wrongfully takes advantage of this unsupervised access to children and“wrongfully exploits children’s vulnerabilities” (R. v. Wall, 2023 ABPC 3, at para. 42 ). [35] The sexualization of children is itself morally blameworthy conduct. Luring invades a child’s personal autonomy,sexual integrity, and gravely wounds their dignity (Friesen, at para. 51).

Using any person as a means to an end is unethical, but anadult’s manipulation of a child to satisfy their sexual urges is highly blameworthy conduct. It is for these reasons that luring isrecognized as “manifestly harmful and wrongful” (R. v. Misay, 2021 ABQB 485, [2022] 1 W.W.R. 145, at para. 52). Even when the onlyinteractions with the child occur online, the offender’s conduct is inherently wrong because it still constitutes a form of sexual abuse (R.v. R.S.F., 2021 MBQB 261, at para. 91 ).

While the degree of exploitation may vary from case to case, the wrongfulness of theexploitation of children is always relevant to the gravity of the offence (Friesen, at para. 78).

(2) The Separate Harm of Luring [36] It is now well established that sexual offences against children cause significant harm. The adverse impacts of sexualviolence against children hinder normal social growth, and can cause several lasting psychosocial problems. When children are young,inexperienced and still developing, the harms caused by even a single instance of sexual violence can permanently alter the course oftheir lives.

Many survivors carry childhood sexual abuse with them throughout their adulthood, and it can permeate every aspect of theirlives. [37] This Court has noted that “[e]ven in child luring cases where all interactions occur online, the offender’s conduct canconstitute a form of psychological sexual violence that has the potential to cause serious harm” (Friesen, at para. 82, citing R. v. Rafiq,2015 ONCA 768, 342 O.A.C. 193). With sexual abuse comes serious emotional and psychological harm that “may often be morepervasive and permanent in its effect than any physical harm” (Friesen, at para. 56, citing R. v.

McCraw, (SCC), [1991]3 S.C.R. 72, at p. 81). Victims of luring often suffer a range of negative impacts including negative sexual development, subsequentsubstance misuse and depressive symptomology (G. N. Say et al., “Abuse Characteristics and Psychiatric Consequences Associated withOnline Sexual Abuse” (2015), 18 Cyberpsychol., Behav., and Soc. Netw. 333). [38] Child luring can also cause distinct psychological and developmental harms to young victims that differ in two mainways from harms arising from sexual contact initiated in person.

First, online communication allows “for abusers to get into the victim’shead and abuse remotely” and for “manipulation and control over time” which can lead to serious and lasting psychologicalconsequences (Rafiq, at para. 44). Because the communications in luring often intentionally emulate positive relationships, it can bedifficult for victims to trust anyone intimately following this experience (E. Hanson, “The Impact of Online Sexual Abuse on Childrenand Young People”, in J.

Brown, ed., Online Risk to Children: Impact, Protection and Prevention (1st ed. 2017), 97, at p. 115). [39] Second, since offenders cannot physically touch their victims when communicating with them online, their power andthe effectiveness of their strategies often lie in the degree to which they can control the victim and manipulate them into engaging withthe abuse. Victims of luring often feel that they actively participated in their own abuse, which may increase self-blame, internalizationand shame. This worsens the psychological harm (J.

Steel et al., “Psychological sequelae of childhood sexual abuse: abuse-relatedcharacteristics, coping strategies, and attributional style” (2004), 28 Child Abuse & Negl. 785, at pp. 795-96; P. Gilbert, “What IsShame? Some Core Issues and Controversies”, in P. Gilbert and B. Andrews, eds., Shame: Interpersonal Behavior, Psychopathology andCulture (1998), 3, at p. 27). [40] Prior jurisprudence has shed light on this distinct harm. In R. v. J.R., 2021 ONCJ 14, at para. 16 , the victimdescribed the confusion, shame and emotional harm that accompanied the luring and extortion she faced.

In Rayo, the victim experiencedfeelings of guilt, shame and anxiety, and reported that [translation] “she had lost confidence in herself and that the events had led her toself-mutilation and suicidal thoughts” (para. 174). In R. v. Roy, 2020 QCCQ 4546, the victim had difficulty sleeping for several weeksfollowing the offence, lost confidence in herself and still struggled to trust others (para. 51 ). In R.S.F., although the victim was

not physically touched, “her mind was manipulated”, she had “nightmares about being hurt again” and she suffered from “overwhelmingand significant anxiety, depression and post-traumatic disorder” (paras. 34-35). [41] Friesen recognized that sexual violence against children also affects other people in the victims’ lives (para. 76). TheCourt highlighted the harmful ripple effects on families, community and society (para. 63). Child luring can similarly destroy trust infriends, families and social institutions and cause children to shut parents out of their lives.

In Rayo, the luring prompted a severe conflictbetween the child and her mother (para. 174). In Rafiq, the luring led the victim to close herself off from her family (paras. 40-41). [42] Identifying the distinct harms of luring in each case may prove more or less difficult, depending on the circumstances.In cases where luring is the standalone offence, identifying the distinct harm may be more straightforward.

However, in cases where theluring actually manifests in the commission of a secondary offence, identifying the distinct harm of luring may be more challenging. [43] One way to identify the distinct harms at play is for courts to differentiate between contact-driven luring, where theoffender’s goal is to facilitate in-person sexual abuse, and luring that leads to sexual abuse occurring entirely online (see R. v. M.B., 2020ONSC 7605, at para. 78 , for an example in relation to child pornography).

In the latter context, the online medium is theprimary setting where the abuse takes place and the offender may have no intention to take the abuse offline. In the context ofcontact-driven luring, the online environment can, but need not, play a significant role in the sexual abuse. The technology maysometimes function solely as a medium to gain physical access to a victim. Where the luring is contact-driven, sentencing judges shouldconsider whether the online communication caused psychological harm that stands separate and apart from the harm of any secondaryoffence that may have been committed.

Victims of contact sexual abuse can be sexually exploited and psychologically manipulatedonline by their offenders both before and after they were abused offline. It is an error to presume that luring cannot engender independentharm. [44] Other times, the aim of luring will be to commit a designated secondary offence set out in s. 172.1(1) that occursentirely online.

This might encompass a range of behaviours including sexual chat, the sharing of sexualized photos or videos, or viewingor performing sexual acts by video, all of which may be encapsulated within the secondary offences of invitation to sexual touching orthe child pornography offences (J. A. Kloess et al., “A Qualitative Analysis of Offenders’ Modus Operandi in Sexually ExploitativeInteractions With Children Online” (2017), 29 Sex. Abuse 563, at pp. 584-87).

In such circumstances, the offender uses technology tobuild a relationship, assert control and psychologically manipulate young persons, and may also use that same technology to then carryout sexual acts. In such circumstances, it might be difficult to decipher whether the luring caused distinct psychological harm, as theharm caused by the luring might resemble the harm caused by the underlying offence which also occurred online. [45] Contact-driven luring is not necessarily more or less harmful than luring that leads to sexual abuse that occurs entirelyonline.

The severity of the harm caused by the online communication will depend on the individual offender and his or her offendinggoals, the individual characteristics of the victim, and the unique dynamic between the offender and the victim.

(3) Parliament Has Mandated That Sentences for Luring Must Increase [46] Friesen urges courts to consider Parliament’s legislative initiatives in sentencing offenders for sexual offences againstchildren (para. 107). Parliament has consistently raised these sentences to reflect a growing awareness of their gravity, and to indicate theserious emotional and psychological harms they cause for victims (paras. 56, 98 and 101-5).

This same increasingly punitive trendapplies to the sentencing regime for luring offences: • In 2002, when enacting the offence of luring, Parliament provided for a maximum term of five years’ imprisonment for luringproceeding by indictment (Criminal Law Amendment Act, 2001, s. 8).

No maximum penalty was set for luring proceeding summarily. • In 2005, Parliament enacted s. 718.01 of the Criminal Code which provides that the objectives of denunciation and deterrence takepriority in cases of the abuse of a person under 18 (An Act to amend the Criminal Code (protection of children and other vulnerablepersons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 24; Criminal Code, s. 718.01). • In 2007, the maximum sentence for luring proceeding by indictment was increased to 10 years’ imprisonment and a maximumsentence of 18 months’ imprisonment was introduced for luring proceeding summarily (An Act to amend the Criminal Code (luring achild), S.C. 2007, c. 20, s. 1). • In 2012, mandatory minimum sentences for child luring were introduced (Safe Streets and Communities Act, s. 22).

As a result, childluring proceeding by indictment carried a mandatory minimum punishment of one year’s imprisonment, and luring proceedingsummarily carried a mandatory minimum punishment of 90 days’ imprisonment. • In 2015, with the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 11, Parliament elevated the maximum sentence forluring proceeding by indictment to 14 years’ imprisonment.

The maximum sentence for luring proceeding summarily was increased from18 months to 2 years’ less a day imprisonment and the mandatory minimum punishment was increased to 6 months’ imprisonment. [47] These legislative changes should be regarded as a sign of Parliament’s view of the offence’s gravity (Rayo, atpara. 125). They make clear that proportionate sentencing that responds to the gravity of the luring offence and the degree ofresponsibility of the offender will often require substantial sentences of imprisonment.

As a result, courts should depart from datedprecedents that do not reflect society’s current awareness of the impact of sexual violence on children in imposing a fit sentence (Friesen,at para. 110).

(4) Summary [48] Friesen’s analytical approach necessitates an understanding of the inherent wrongfulness and distinct harms of luringand Parliament’s sentencing goals. Understanding the wrongfulness and harmfulness of the luring offence is integral to properlyassessing the gravity of the offence and the degree of responsibility of the offender, as well as to avoiding stereotypical reasoning and themisidentification of aggravating and mitigating factors (para. 50). I use this guidance to inform Mr. Bertrand Marchand’s fit sentence and

as the foundation for the constitutional analysis under s. 12 . D. The Sentencing Judge Erred in Assigning a Five-Month Concurrent Sentence for the Luring Offence [ 49 ] The sentencing judge properly considered denunciation and deterrence and recognized that the total sentence must be proportionate to the gravity of the offences and to the respondent’s degree of responsibility.

When addressing the sentence for the sexual interference, which is not on appeal before this Court, she acknowledged that this was a [ translation ] “situation of sexual exploitation” (para. 60) and a “relationship based on manipulation to satisfy sexual needs with a still-developing adolescent”, which would leave “scars” (para. 59).

The vulnerability of the young victim, who was under the Director of Youth Protection’s care, was also recognized regarding both the sexual interference and luring offences (paras. 60 and 70). [ 50 ] According to Lacasse , sentencing judges are afforded broad discretionary powers in crafting a fit sentence (para. 39). Appellate intervention is justified only if a sentence is demonstrably unfit or if the judge committed an error in principle that impacted the sentence imposed (para. 44).

The sentencing judge committed errors in principle that impacted the assigned sentence of five months’ imprisonment that she ordered be served concurrently to the sexual interference sentence. Specifically, she erred by (1) minimizing the harm caused to the victim by failing to recognize the grooming that did occur; (2) misconstruing the offender’s actions; and (3) assigning a concurrent sentence for the luring offence. These errors in principle warranted appellate intervention that the majority of the Court of Appeal below failed to undertake.

I would thus substitute the 5-month sentence imposed by the sentencing judge with the 12-month sentence sought by the Crown.

(1) The Sentencing Judge Failed to Recognize the Grooming That Occurred [ 51 ] Evidence of grooming may be present where child luring is made out. Grooming is a process which allows the offender to forge a close relationship with a victim to gain trust, compliance and secrecy for the purpose of eventually engaging in sexualization and abuse ( Rayo , at para. 149 ). The juris

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