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| John L. Hill |
Fortunately, this distinction was not lost on Justice David Paciocco in writing the decision in R. v. M.V. 2023 ONCA 724. This was an appeal of the eight-year global sentence imposed on M.V. in March 2022, in which the appellant received a penalty of one year for the sexual interference charge and seven years consecutive for child luring. Even though the date of the judgment in M.V. is Nov. 3, 2023, it must be considered with the decision of the Supreme Court of Canada in R. v. Bertrand Marchand 2023, SCC 26 released the same day.
As reported in Law360 Canada, Canada’s top court detailed its landmark findings through the unrelated, Quebec-based cases of Maxime Bertrand Marchand and an offender identified only as H.V. — both of whom were convicted of child luring. Until the most recent case, child luring carried two minimum sentences: one year for indictable and six months for summary. In the Supreme Court case, Marchand was convicted of an indictable offence, while H.V. was convicted of a summary offence. As reported, Justice Sheilah Martin agreed with the lower courts that the mandatory minimums for child luring run contrary to the Charter. Even while acknowledging that child luring remains a very serious crime, “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.”
The Ontario Court of Appeal decision traces the sentencing principles involved in child luring cases and also concludes that sentences imposed should be proportional to the harm done and not to the outrage many would associate with this form of child abuse.
In the M.V. case, the penalty for the sexual interference charge was dated. The child luring charge was more recent. The error in the trial judge’s sentence was that she had improperly linked the aggravating circumstances arising from the sexual interference information in determining that seven years was a fit penalty for the child luring accusation. This amounted to sentencing M.V. twice for the earlier offence in violation of what has been called “Coke’s principle.” This led Ontario’s Appeal Court to reduce the child luring sentence to four and a half years consecutive to the one-year sexual interference charge (with one year for possession of child pornography included in the latter penalty).
The Ontario Court of Appeal does an admiral job of tracing how societal outrage has been vented through our laws and court decisions. It refers to the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23 and the Supreme Court of Canada decision in R. v. Friesen 2020 SCC 9 as starting points for a get-tough-on-child crime approach. Yet it noted that Friesen may have been misinterpreted since that judgment sent a “strong message” to courts to ensure that sentences involving sexual offences against children were proportionate and reflect the “wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families and society at large.” Yet in Ontario, there was pressure to hand out harsh sentences “to deter, denounce and separate from society adult predators who would commit this insidious crime” (per Justice Michael Moldaver, in R. v. Woodward, 2011 ONCA 610)
The decision of the Supreme Court of Canada marks a point in legal history where principle rather than public outrage takes precedence. The Law360 Canada report quotes Eric Gottardi, who acted for the Independent Criminal Defence Advocacy Society, one of a handful of interveners in the case, that they were pleased with the court’s decision to “strike down the section in question.”
“The offence of luring is one of broad application in today’s largely digital world,” he said. “The court’s emphasis on individualized sentencing and on the seriousness of offences against children strikes a welcome balance for courts going forward.”
These two decisions are to be welcomed as an indication that the rule of law and not public outrage will be the determining factor.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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