SCC: Mandatory six-month prison sentence for obtaining sexual services from a child is constitutional

In a split decision Friday, the Supreme Court of Canada ruled that six months’ imprisonment, the mandatory minimum sentence for obtaining sexual services from a child, is constitutional. 

The decision overturns a Quebec Court of Appeal ruling that found the mandatory minimum sentence violates s. 12 of the Canadian Charter of Rights and Freedoms, which guarantees the right not to be subjected to cruel and unusual treatment or punishment. The appellate court had determined that the sentence is too severe when applied to a hypothetical offender who is 18 years old and has romantic feelings for a victim who is a minor.

Under Canadian law, parties can sometimes challenge the constitutionality of a mandatory minimum sentence by citing hypothetical scenarios in which the application of that sentence is too severe.

In Quebec (Attorney General) v. Denis, Mario Denis, who was in his 50s when he convicted of communicating with a person under 18 years of age for the purpose of obtaining sexual services, successfully convinced the Quebec Court of Appeal that the mandatory minimum sentence for his offence was unconstitutional by raising a specific hypothetical scenario: that of an 18-year-old who pays a minor female friend for sex. In that scenario, the 18-year-old has romantic feelings for his friend.

Writing for the SCC majority, Justices Suzanne Côté and Michelle O’Bonsawin said an appropriate prison sentence for the offender in that scenario would be five months.

Following their analysis, the justices wrote they could not conclude that in that scenario, “the six-month sentence would be ‘so excessive as to outrage standards of decency’, would be ‘abhorrent or intolerable’ to society or would ‘shock the conscience’ of Canadians” – the standards established in previous court rulings for determining that a mandatory minimum sentence is inappropriate.

The one-month difference between the five-month prison sentence fit for the hypothetical offender and the six-month mandatory minimum sentence is not severe enough to render the latter substantially more harmful to the hypothetical offender, the justices added. Therefore, the six-month mandatory minimum sentence is not unconstitutional.

Justices Andromache Karakatsanis and Mary Moreau dissented.

The case dates to 2018, when police in Laval, Quebec, posted fake advertisements on websites offering escort services. The police chose the websites because they were known for offering sexual services from minors, especially young girls who had run away from youth centres. Denis responded to the ads, and an undercover officer, posing as the point of contact for the escort services, mentioned multiple times that the escort he offered was 16 years old.

When Denis arrived at the motel where the undercover officer arranged for him to meet with the fictitious escort, the police arrested him. Denis challenged the constitutionality of the minimum six-month sentence for trying to obtain sexual services from a minor, but a trial judge rejected his argument and entered a conviction.

Denis appealed the trial judge’s ruling to the Quebec Court of Appeal, offering multiple hypothetical scenarios in which the application of the mandatory minimum sentence could be considered unconstitutional. The appellate court found that the six-month sentence was appropriate for Denis. However, it agreed that it would be grossly disproportionate to apply the same sentence in the scenario involving an 18-year-old who texts a friend, a sex worker who is a minor, to offer her money for sex. In that scenario, the 18-year-old has feelings for the victim, but does not want to admit this to her.

The Crown appealed the appellate court’s ruling. The SCC allowed the appeal.

In their reasons, Côté and O’Bonsawin acknowledged that the scenario of the 18-year-old that Denis proposed is reasonably foreseeable. However, they emphasized that hypothetical scenarios introduced to challenge mandatory minimum sentences cannot include details irrelevant to sentencing, such as personal characteristics and facts that do not affect the gravity of the offence or the offender's moral blameworthiness.

“Superfluous details, often added to make the offender more sympathetic, must be removed to prevent them from unduly tainting the analysis,” the justices wrote.

“Here, aside from the offender’s age, the sixth proposed scenario refers to only one personal characteristic, which immediately draws attention: the offender’s unspoken romantic feelings for the child victim,” the justices added. “However, the offender’s feelings, a fact that seems to have been added to generate sympathy, have no relevance for sentencing purposes. They cannot affect the offender’s moral blameworthiness or the gravity of the offence.”

The justices also took issue with Denis’ use of the term ‘sex worker’ for the minor in his hypothetical scenario, which they said should not apply to children who are victims of sexual commodification. They reframed the scenario as that of an 18-year-old man who texts a female friend who is a minor, and whom he knows offers sexual services.

The justices determined that a five-month sentence was appropriate for the offender in this scenario based on several factors. They noted that obtaining sexual services is an offence with significant objective gravity, since it is punishable by a maximum sentence of 10 years. The offence committed in the hypothetical scenario also holds significant subjective gravity, which the justices assessed by considering the specific circumstances of the offence, because it involves the abuse of a minor, the abuse of the minor’s trust, and would have a significant impact on the victim.

The hypothetical offender’s moral blameworthiness in the scenario is exacerbated by his conscious choice to solicit sex from a minor who likely trusts him. However, that blameworthiness is mitigated by the fact that he is only 18 years old and has no criminal record.

“Because of the offender’s youth, we are of the view that a five-month sentence would be sufficient to reflect society’s condemnation of his actions but would still avoid hampering his chances of rehabilitation,” the justices wrote. “In our opinion, this is ‘the shortest possible sentence that is proportionate to the gravity of the offence.’”

Côté and O’Bonsawin acknowledged that the six-month minimum sentence is greater than the five-month sentence they believe is appropriate for the hypothetical offender. However, they wrote, “the additional month cannot be regarded as causing him substantially greater harm.”

They added, “The one-month difference in this case is not such as to shock the conscience of Canadians.”

In Karakatsanis and Moreau’s dissent, the justices said they would have upheld the Quebec Court of Appeal’s ruling that the mandatory minimum sentence for obtaining sexual services from a child.

“When a proportionate sentence would not require actual imprisonment, sending a young first-time offender to prison for six months is a gross injustice that constitutes cruel and unusual punishment,” the justices wrote. “The minimum penalty here therefore violates s. 12 of the Canadian Charter of Rights and Freedoms’ guarantee against cruel and unusual punishment.”

In a statement on Friday, Marie-Pier Boulet, a lawyer at BMD Avocats who represented Denis, noted that the ruling does not directly affect her client, as he has already served his sentence.

“As for the issue of the mandatory minimum sentence, it is clear that the Supreme Court viewed the infraction differently,” Boulet said. “My own perspective on the matter aligns with the arguments addressed by the dissent.”

A spokesperson for the Quebec Attorney General acknowledged in a statement to Canadian Lawyer that the SCC affirmed its position on Friday. The spokesperson said the high court's decision reiterates the importance of protecting children across Canada, as well as the importance of imposing strong penalties on offenders who seek sexual services from minors.