Summary

40093

Attorney General of Quebec, et al. v. H. V.

(Quebec) (Criminal) (By Leave)

(Publication ban in case)

Keywords

Charter of Rights — Criminal law — Sentencing — Mandatory minimum sentence — Child luring — Whether s. 172.1(2)(b) of Criminal Code infringes s. 12 of Charter — If so, whether it constitutes reasonable limit prescribed by law that can be demonstrably justified in free and democratic society under s. 1 of Charter — Criminal Code, R.S.C. 1985, c. C-46, s. 172.1(2)(b) — Canadian Charter of Rights and Freedoms, s. 12.

Summary

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(PUBLICATION BAN IN CASE)

The respondent, H.V., pleaded guilty to a child luring offence committed between July 31 and August 9, 2017, which was prosecuted summarily. During sentencing, the respondent argued that the 6-month mandatory minimum sentence provided for in s. 172.1(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46, was unconstitutional under s. 12 of the Canadian Charter of Rights and Freedoms. In his view, a sentence of imprisonment would be unjustified. The prosecution sought a term of imprisonment of between 9 and 12 months along with probation.

The Court of Québec declared that the 6-month mandatory minimum sentence was of no force or effect in relation to the accused, suspended the passing of sentence and imposed 2 years of probation with an obligation to perform 150 hours of community service.

The Superior Court allowed the appeal and affirmed that the mandatory minimum sentence of 6 months’ imprisonment provided for in s. 172.1(2)(b) Cr. C. was of no force or effect in relation to the accused under s. 12 of the Charter and was not saved by s. 1; it declared the mandatory minimum sentence to be invalid and of no force or effect and set aside the sentence imposed at trial. It sentenced the accused to 90 days’ imprisonment to be served intermittently and 3 years of probation, including 150 hours of community service. It maintained the other terms and conditions imposed and orders made at trial.

The Court of Appeal dismissed the prosecution’s appeal, upholding the 90-day sentence of imprisonment and the declaration that the minimum sentence of 6 months’ imprisonment provided for in s. 172.1(2)(b) Cr. C. was invalid. It held that the Superior Court had not imposed a demonstrably unfit sentence that did not reflect the objective and subjective seriousness of the crime committed and that the Superior Court had not erred in law in finding s. 172.1(2)(b) to be constitutionally invalid.

Lower Court Rulings

November 21, 2019
Court of Quebec

540-01-080712-170
Mandatory minimum sentence of six months’ imprisonment provided for in s. 172.1(2)(b) Cr. C. declared to be of no force or effect in relation to accused; passing of sentence suspended and 2 years of probation with 150 hours of community service imposed
February 25, 2021
Superior Court of Quebec

540-01-080712-170, 540-36-001085-199
Appeal allowed; mandatory sentence of six months’ imprisonment provided for in s. 172.1(2)(b) Cr. C. declared to be invalid and of no force or effect; sentence set aside; 90-day intermittent sentence of imprisonment with 3 years of probation imposed on accused
January 12, 2022
Court of Appeal of Quebec (Montréal)

2022 QCCA 16, 500-10-007541-210
Motion for leave to appeal granted; appeal dismissed