The Supreme Court of Canada ruled Friday that mandatory minimum sentences for child enticement are unconstitutional.
In a decision made by six votes to one, with Justice Suzanne Côté dissenting in part, the court decided two cases from the Quebec Court of Appeal.
In both cases the mandatory minimum sentence of one year for a charge and six months for an offense was found to be a breach of section 12 of the Charter.
Article 12 states that everyone has the right not to be subjected to cruel and unusual treatment or punishment.
In its ruling, the country’s highest court said the repeal of mandatory minimum sentences was due to the overbroad nature of the law and not an attempt to minimize the crime of child enticement.
The scope and scale of the crime means that a fixed minimum period of detention in all cases sometimes produces results so excessive that they violate norms of decency, said Judge Sheila Martin, speaking on behalf of the majority.
The repeal of mandatory minimum sentences does not mean that enticing children is a less serious offense, it goes on to say.
Given the clear and insidious psychological harm that child luring causes, the appropriate punishment for child luring in some cases is imprisonment equal to or greater than the unconstitutional minimum sentence.
The two causes
Despite this decision, the perpetrators in both cases received longer sentences as they made their way through the courts.
In the first case, Maxime Marchand met his 13-year-old victim when she was 22, sent her a friend request on Facebook and stayed in touch with her for two years. The couple met and had illicit sex four times.
Mr. Marchand pleaded guilty to one count of child enticement and one count of sexual touching. At the sentencing hearing, he challenged the mandatory one-year minimum sentence for child enticement on the grounds that it violated Article 12.
In the second case, HV, whose name is subject to a publication ban to protect the victim, pleaded guilty to one count of child enticement for sending sexual text messages to the victim over a period of 10 days.
HV also challenged the constitutionality of the mandatory minimum sentence of six months imposed upon summary conviction for luring.
Although the Supreme Court agreed to hear the cases in both cases, it changed Marchand’s sentence from five months to one year and required that it be served consecutive to the sexual assault sentence and not “at the same time.”
With information from CBC News and Le Devoir