Supreme Court upholds mandatory minimum on child exploitation offences

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The Supreme Court of Canada has restored the mandatory minimum sentence for communicating for the purposes of obtaining sexual services from a minor.

Although the Court has ruled against mandatory minimums in the past, in a 7-2 decision, it found the six-month minimum sentence did not constitute cruel and unusual punishment under the Charter of Rights and Freedoms, overturning a 2024 Quebec Court of Appeal ruling that would have struck down the minimum based on a reasonable hypothetical scenario.

The facts of the case date back to 2018, when Mario Denis interacted with police in Laval who had set up a fictional escort service advertising sexual services from children, including young girls who had purportedly run away from youth centres. During his interactions, Denis negotiated a price, the “extras,” and a meeting place. The police officer he was interacting with stated twice that the purported escort was 16, though Denis claimed he did not hear that information. At the meeting place, Denis was arrested and charged under s. 286.1(2) of the Criminal Code after paying the undercover officer in cash.

At trial, Denis was convicted and sentenced to the mandatory minimum of six months. At sentencing, he challenged the minimum sentence, but the trial judge dismissed the motion because it was not grossly disproportionate. The Quebec Court of Appeal upheld the conviction and sentence, but allowed the appeal in part as it related to the mandatory minimum. The Court accepted a proposed hypothetical scenario where the sentence would be grossly disproportionate. In that scenario, an 18-year-old texts a friend he has feelings for. She’s a minor and a sex worker, and they agree to have sex for money.

The Supreme Court of Canada focused on the constitutionality of the mandatory minimum. The majority dismissed the appeal, restoring the sentence. In the judgment, Justices Suzanne Côté and Michelle O’Bonsawin issued a strongly written condemnation against using terms like sex worker when it relates to minors, as the term implies the exercise of choice or consent.

“Let us be clear from the start: terms like ‘sex worker’ ought not to be used in describing children who are victims of sexual commodification,” they said. 

“These terms greatly trivialize the gravity of the crime and do nothing but obscure the true nature of the exploitative relationship that exists between the victims of this crime and the offenders who commit it.”

In their analysis, the justices rejected the portion of the hypothetical scenario where the accused has amorous feelings toward the child victim, saying it was irrelevant for sentencing purposes and potentially taints the analysis of moral blameworthiness. They found that in such a scenario, a fit sentence would have been five months’ imprisonment, which is not grossly disproportionate to the mandatory minimum. The six-month minimum sentence was found to adequately balance the objectives of denunciation, deterrence, and rehabilitation.

In her dissent, Justice Andromache Karakatsanis, supported by Justice Moreau, put forward a different reasonably foreseeable hypothetical scenario where a youthful first offender agrees to a sexual services transaction with a minor, but changes their mind before arriving at the meetup, which is still covered under the scope of the offence. In that situation, Karakatsanis felt a six-month non-custodial sentence would be appropriate, but not six months’ imprisonment.

The majority felt the six-month mandatory minimum would still be a fit sentence in that scenario.

Jody Berkes, a criminal defence lawyer in Toronto and a former chair of the CBA’s criminal justice section, says that while this decision isn’t groundbreaking, it could be one of the last decisions of its kind now that new legislation around mandatory minimum sentences is coming into force.

“I don’t think we’re going to see many applications to strike down mandatory minimums anymore because the new legislation includes a ‘safety valve’ that judges will be able to go below a mandatory minimum in exceptional circumstances,” he says.

Further, under the new legislation, a reasonable hypothetical analysis will be replaced by an analysis of an offender’s specific circumstances to determine whether the sentence's result is oppressive under the mandatory minimum.

“The silver lining for the defence bar is that it used to be that to get around a mandatory minimum for your particular client, you had to be ready to mount a challenge to the legislation,” Berkes says. 

“Now, that type of analysis is available every single day to every single defence lawyer who thinks that their particular client in these particular circumstances should be exempted from the mandatory minimum. “

He’s interested in seeing how that plays out in sexually-based offences, the new domestic assault-related offences, and what kinds of facts judges find persuasive when defence lawyers try to justify that exceptionality.

Berkes notes that this decision continues the line of case law that began in 2020 with Friesen, where the Court said that sexual offences involving children were under-sentenced and not given sufficient denunciatory sentences. 

Kyla Lee of Acumen Law in Vancouver, also a former chair of the CBA criminal justice section, was particularly taken by the majority’s language regarding the difference between a disproportionate sentence and one that is grossly disproportionate.

“That makes it feel like the gap between an unfit mandatory minimum and an unconstitutional one is pretty big,” she says. 

“I found that language troubling, frankly. If a sentence isn’t proportionate, when proportionality is a principle of sentencing, then we shouldn’t have a mandatory minimum that risks a disproportionate sentence just because it’s not grossly disproportionate.”

That seems inconsistent with the principles of fairness in the justice system.

Lee says the Court seems to be narrowing its language to more closely mirror what’s coming from Parliament. Particularly when it comes to what constitutes a reasonable hypothetical analysis, the Court seems to dismiss the notion of personal characteristics.

“It’s far less than what Parliament has done, but it does seem to be reining in the reasonable hypothetical,” she says. 

“With the new amendments to the [Criminal] Code, you have to demonstrate that the mandatory minimum is demonstrably unfit or grossly disproportionate vis-à-vis your client, and not just the hypothetical offender.”

Lee hopes this isn’t the end of these kinds of decisions around mandatory minimums, and that there will be constitutional challenges to the new legislation and the narrowing of its analysis.