Reasons for Judgment — Côté and O’Bonsawin JJ. (Wagner C.J. and Rowe, Martin, Kasirer and Jamal JJ. concurring)
I. Overview
There is no doubt that the sexual commodification of children is a veritable scourge in Canada, one that the state has every interest in suppressing and severely punishing. Indeed, any sexual offence committed against a child involves an intolerable interference with their personal autonomy and their bodily and psychological integrity.
But while it is undeniable that all sexual offences committed against children necessarily entail a risk of serious bodily and psychological harm, this risk is even more pronounced in the context of the commodification of sexual activity, where the worst forms of violence, coercion and abuse are commonplace. As recognized by the preamble to the Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25, sexual commodification inherently constitutes a form of serious exploitation that causes significant societal harm and undermines human dignity and equality.
The iniquitous nature of this crime becomes even more apparent when one considers that this commodification disproportionately affects people who are already among the most vulnerable in our society: young girls, and, in some provinces, young Indigenous girls in particular (I.F., Attorney General of Manitoba, at paras. 14 et seq.; R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395, at para. 2, leave to appeal refused, [2022] 1 S.C.R. vi; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 68 and 70).
There is no question that offenders who help create the demand for the sexual commodification of children always have a high degree of moral blameworthiness, since they make a conscious and intentional choice to contribute to the exploitation of victims who are clearly highly vulnerable. By participating in this abhorrent practice, they undermine one of the most cherished and fundamental values of Canadian society, the protection of children (Friesen, at para. 65).
As Mainella J.A. of the Manitoba Court of Appeal aptly explained, “[a]t its core, the wrongfulness of child prostitution is a denial of a child’s humanity; the sexual relationship between the exploiter and the child is one of objectification where the powerful party, the exploiter, converts the child to an object to be sexually dominated” (Alcorn, at para. 43).
This appeal requires the Court to consider the constitutional validity of the mandatory minimum sentence of six months’ imprisonment for the offence of obtaining sexual services — and consequently for its inchoate offence of communicating for the purpose of obtaining sexual services — from a person under the age of 18 years for consideration,[1] a sentence provided for in s. 286.1(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”).
In this case, the Quebec Court of Appeal found that the mandatory minimum sentence was a fit sentence for the respondent, Mario Denis. It nevertheless held that the sentence infringed s. 12 of the Canadian Charter of Rights and Freedoms, because it would be grossly disproportionate if imposed on the offender in one of the scenarios proposed by Mr. Denis.
For the reasons that follow, we would allow the appeal of the Attorney General of Quebec, overturn para. 8 of the judgment of the Quebec Court of Appeal and set aside the declaration that the mandatory minimum sentence is constitutionally invalid. Respectfully, the Court of Appeal erred in law in finding that the sentence would be grossly disproportionate in the reasonably foreseeable scenario it considered.
II. Facts
The facts are not in dispute and can be summarized as follows.
In 2018, the Police Service of the city of Laval launched a police operation called “Projet Défensif 3”, whose purpose was to combat the sexual commodification of children. As part of that operation, the police posted two fictitious advertisements on websites offering escort services. The websites chosen by the police were apparently known for offering sexual services from children, especially young girls who had run away from youth centres. The ads noted that the escorts were “young”, “inexperienced” and “petite”, but did not specify their ages. Photographs showing women who looked young accompanied the advertisements.
The respondent, Mr. Denis, was one of the people who responded to these ads. On June 5, 2018, he communicated by text message with an undercover officer who introduced herself as “Chloé”, the point of contact. He wanted to obtain sexual services for consideration. Discussions followed by telephone between Mr. Denis and the undercover officer. They talked about the price, the “extras” and the meeting place. During that initial conversation, the officer twice stated that the escort, “Alexa”, was 16 years old. At trial, Mr. Denis claimed that he had not heard that information, raising the possibility that there had been ambient noise from traffic.
The undercover officer told him of a public meeting place. Once there, Mr. Denis was to call her back to obtain the name and address of the motel where the escort would be. Mr. Denis followed the instructions and called the officer back. During the second call, the officer again mentioned the escort’s age. At trial, Mr. Denis once again claimed that he had not heard that information. According to him, the officer had only specified that he could not have “rough sex” with the escort.
The officer gave him the address of the motel. Mr. Denis made his way there and went to the room mentioned during the call. For the fourth time, the officer repeated that the escort was only 16 years old, while reiterating that Mr. Denis could not “knock her around”. Mr. Denis expressed his agreement with the terms of the deal. He paid the officer in cash. She gave him some condoms and asked him if he had any sexual preferences. He said that he wanted anal intercourse. The undercover officer took him to an adjoining room where several officers were waiting for him. Mr. Denis was immediately arrested, and a charge was laid against him.
Following his trial, Mr. Denis was convicted of obtaining sexual services from a person under the age of 18 years for consideration, an offence under s. 286.1(2) Cr. C.
III. Decisions Below
A. Court of Québec (Judge Gaboury)
At sentencing, Mr. Denis challenged the constitutional validity of the mandatory minimum sentence. In a decision rendered orally, Judge Gaboury dismissed Mr. Denis’s motion. She noted that the constitutionality of the mandatory minimum sentence had already been confirmed by the Quebec Court of Appeal in Procureur général du Québec v. C.M., 2021 QCCA 543, and that nothing in the case before her made that case distinguishable. Since the six-month mandatory minimum sentence was not grossly disproportionate for Mr. Denis, the judge imposed it on him.
B. Quebec Court of Appeal, 2024 QCCA 647 (Doyon, Baudouin and Kalichman JJ.A.)
Mr. Denis appealed both the conviction and the sentence.[2] The Quebec Court of Appeal rejected the various arguments presented by the parties, with the exception of Mr. Denis’s argument that the mandatory minimum sentence was unconstitutional. Despite the fact that the minimum sentence was a fit one for Mr. Denis, it would be grossly disproportionate if imposed on the hypothetical offender in the sixth proposed scenario:
[translation]
Scenario 6
A person who is eighteen (18) years old texts a friend who is a minor. He knows that she is a sex worker. They agree to have sex, and the person who is eighteen (18) years old offers money to the minor. He has feelings for her, but he does not want to admit this to her. In all cases, even before the encounter, the 18-year-old has committed the offence set out in 286.1(2) Cr.C. as well as the offence of luring a child. [para. 77]
To find that the sixth scenario was reasonably foreseeable, the Court of Appeal relied on R. v. Faroughi, 2024 ONCA 178, 171 O.R. (3d) 81. In its view, the facts before the Ontario Court of Appeal in that case clearly showed that it was a reasonably foreseeable scenario. Because the mandatory minimum sentence would be grossly disproportionate in the scenario proposed by Mr. Denis, the Court of Appeal declared it invalid.
IV. Issues
The debate before our Court relates exclusively to the question of the constitutional validity of the mandatory minimum sentence provided for in s. 286.1(2)(a) Cr. C., in light of the single reasonably foreseeable scenario considered by the Court of Appeal.
If the Court were to find that the mandatory minimum sentence is grossly disproportionate, it would also be necessary to determine whether the sentence can be saved under s. 1 of the Charter.
V. Positions of the Parties
The Attorney General of Quebec raises three errors of law.
First, the Court of Appeal allegedly erred in not giving the parties an opportunity to make additional submissions concerning Faroughi, a judgment rendered after the hearing before the Court of Appeal but prior to its decision.
Second, the Court of Appeal allegedly erred in finding that the proposed scenario is reasonably foreseeable. In truth, the proposed case involves a hypothetical offender crafted for the sole purpose of being as sympathetic as possible.
Third, the Court of Appeal allegedly erred in finding that the sentence would be grossly disproportionate in the case of the proposed offender. The offence of obtaining sexual services from a person under the age of 18 years for consideration invariably involves a very high degree of moral blameworthiness. Consequently, imposing the mandatory minimum sentence would not shock the conscience of an informed public in the case of the proposed offender.
As for Mr. Denis, he submits that the Court of Appeal made no errors.
According to him, the Court of Appeal properly relied on Faroughi, because the factual matrix of that case corresponds in many respects to the sixth proposed scenario. Thus, this scenario is far from being marginal or invented and is not designed to be the most sympathetic.
With regard to the mandatory minimum sentence, it captures a broad range of conduct, some of which is less morally blameworthy. However, as this Court’s jurisprudence indicates, the wider the scope of the conduct captured by an offence, the more constitutionally vulnerable the mandatory minimum sentence may be. In Mr. Denis’s opinion, this is the case here.
Finally, he asserts that the mandatory minimum sentence cannot be saved under s. 1. The inflexibly harsh nature of this mandatory minimum sentence is not a minimal impairment, and the balancing of salutary and deleterious effects clearly weighs in favour of a declaration of unconstitutionality under s. 52(1) of the Constitution Act, 1982.
VI. Analysis
A. The Duty of Courts to Avoid Using Euphemisms to Describe Sexual Offences Committed Against Children
Before we get to the heart of the analysis, it is important to briefly address the language used by Mr. Denis in the sixth scenario he proposed before all levels of court (see amended motion (reproduced in A.R., vol. I, at pp. 74-104), at para. 115). In this scenario, the victim, a child, is described as a “sex worker”. The Attorney General sharply criticized the use of this terminology both in his factum and in his oral submissions before this Court. We agree with these criticisms.
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. 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 Alcorn, Mainella J.A. rightly pointed out the problem with using such euphemisms:
Language is an important part of the discussion of sexual offences against a child; as was said in Friesen, “sentencing is a communicative process, the language that sentencing judges use matters” (at para 147). I have used the term “child” to describe D.R. and anyone else under the age of 18. I have refrained from using the terms “sex work,” “sex worker,” “sex trade,” “customer” or “client” as such words blur the exploitative nature of the child sex industry. [Emphasis added; para. 10.]
We agree with the position expressed by Mainella J.A., which is entirely consistent with our Court’s instructions in Friesen and R. v. Bertrand Marchand, 2023 SCC 26. As Martin J. noted in the latter case, “[t]aking a critical look at the language used to describe sexual violence experienced by children is essential to adequately reflect the wrongfulness and the harmfulness of these offences” (para. 64).
The expression “sex worker” implies the exercise of some choice, as if obtaining sexual services from a child were just one economic transaction among others. In this context, sexual relations between a child and an adult are, by their nature, a form of exploitation to which the child cannot consent (Bertrand Marchand, at para. 68; Friesen, at para. 53; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 26).
But apart from the fact that sexual relations between children and adults are inherently exploitative, the use of the term “sex worker” to describe the phenomenon of sexual commodification of children obscures another important factor: the victims are highly vulnerable. The victims are often persons from disadvantaged backgrounds whose socio-economic situation is precarious and who have already experienced sexual abuse (R. Chrismas, Sex Industry Slavery: Protecting Canada’s Youth (2020), at pp. 48-49). They frequently struggle with alcohol and drug addiction problems, have mental health issues or are homeless (Bedford v. Canada (Attorney General), 2010 ONSC 4264, 102 O.R. (3d) 321, at para. 133; R. v. Gudmandson, 2018 MBPC 31, at para. 39; see, e.g., Alcorn, at para. 3; R. v. Ackman, 2017 MBCA 78, 354 C.C.C. (3d) 172, at para. 11). As a result, many of them engage in child prostitution simply to meet their basic needs. In this regard, the cases canvassed by the intervener the Attorney General of Manitoba in his factum are particularly revealing: sexual services are provided by victims in exchange for lodging and food, or for alcohol and drugs to which they are already addicted (paras. 22-39).
Mainella J.A. was therefore entirely right to point out in Alcorn that “[t]he child sex industry is involuntary” and that it is “a myth to conflate sexual exploitation with the legitimate provision of labour” (para. 20 (emphasis added); see also Chrismas, at pp. 13 and 44). It is imperative to avoid suggesting that a child’s participation in the commodification of sexual activity may be a “choice” of some kind.
In this regard, while we sometimes use the expression “sexual services” in these reasons to echo the language of s. 286.1(2) Cr. C., it is important to bear in mind that adults who seek sexual contact with children for consideration are not trying to obtain a mere “service”: they are participating in the dynamic of exploitation we have just discussed.
Finally, one last point must be made. We want to stress that nowhere in its analysis did the Court of Appeal itself use the kind of language that trivializes what we have just described. On the contrary, the Court of Appeal’s judgment is entirely exemplary in this regard. The court spoke of the need to denounce offences [translation] “of a sexual nature committed against children” and referred to the “context of sexual exploitation of minors at the hands of adults”. In addition, it noted, children who are victims of this crime suffer especially serious consequences, as they are [translation] “at a crucial stage in their development”, and “their vulnerability is heightened as a result” (para. 52). Thus, there can be no doubt that the Court of Appeal’s reasons contribute fully to the “communicative and educative role of law” (Friesen, at para. 105).
With this point made, some additional comments on the offence of soliciting or obtaining sexual services from a child are necessary.
B. The Offence of Obtaining Sexual Services From a Person Under the Age of 18 Years: Section 286.1(2) Cr. C.
(1) The Legislative Amendments Show the Evolution of Canadian Society’s Understanding of the Gravity and Harmfulness of This Offence
The offence of obtaining sexual services for consideration was created in 1985 through the enactment of s. 212 of the new Criminal Code, a provision dealing primarily with procuring that appeared in Part VII of the Criminal Code, “Disorderly Houses, Gaming and Betting” (An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.)). It was an indictable offence, which could not be prosecuted summarily and which was punishable by a maximum sentence of 10 years in a penitentiary. An amendment was introduced in 1987 to establish a maximum sentence of 5 years where the person from whom the accused sought to obtain sexual services was under the age of 18 years (s. 212(4) Cr. C.; An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 9). No mandatory minimum sentence was specified at the time. During the 20 years that followed, no significant changes were made to the provision. However, it is important to underscore two subsequent legislative amendments.
In 2005, Parliament passed a major amendment. It amended the offence of obtaining sexual services from a minor for consideration to provide for a minimum sentence of six months (An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 10.1(2)). That legislative amendment was made in a context where “the Parliament of Canada ha[d] grave concerns regarding the vulnerability of children to all forms of exploitation” and in an effort to measure up to the international commitments made by Canada 15 years earlier when it ratified the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (see the preamble to the Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act). Indeed, the Convention provides that signatory states have an obligation to take “all appropriate . . . measures” to prevent “[t]he exploitative use of children in prostitution” (Article 34(b)). The introduction of a minimum sentence was one of the measures taken by Canada to combat the exploitation of children. It reflected a clear intention to prioritize, from a penological standpoint, strong denunciation of the sexual commodification of children as well as deterrence of those who might be tempted to participate in it (see R. v. Hills, 2023 SCC 2, [2023] 1 S.C.R. 6, at para. 139).
Next, in 2014, Parliament amended this provision again following Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, in which this Court struck down certain provisions relating to prostitution. In response to the Court’s decision in Bedford, Parliament passed the Protection of Communities and Exploited Persons Act, which repealed s. 212(4) Cr. C. (s. 13) and replaced it with the new s. 286.1(2) Cr. C. (s. 20).
Three important points emerge from this last legislative amendment and are worth noting.
First, Parliament increased the maximum sentence for this offence from 5 to 10 years (s. 286.1(2) Cr. C.). The maximum sentence that may be imposed for an offence is a proxy for the objective gravity of the offence (R. v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147, at para. 106). The increase in the maximum sentence shows that Parliament wanted offenders to be punished more severely and conveys an intent to “shif[t] the distribution of proportionate sentences” (R. v. Sheppard, 2025 SCC 29, at para. 73, quoting Friesen, at para. 97; see also Friesen, at paras. 98-100). Parliament therefore sent an unequivocal message: this is an “extremely grave” offence (R. v. Ramelson, 2021 ONCA 328, 155 O.R. (3d) 481, at para. 102, aff’d on other grounds, 2022 SCC 44, [2022] 3 S.C.R. 450).
Second, Parliament doubled the mandatory minimum sentence for each subsequent offence. Repeat offenders would now be liable to a one-year sentence (s. 286.1(2)(b) Cr. C.). By doing so, Parliament raised by another notch the priority given to the objectives of denunciation and deterrence in the context of sexual commodification of children. During the parliamentary debates, the Minister of Justice had in fact made these objectives explicit by explaining that the increase in sentences was meant to “send a clear message to those who exploit vulnerable persons and, in particular, inflict trauma and revictimization on women and children” (House of Commons Debates, vol. 147, No. 101, 2nd Sess., 41st Parl., June 11, 2014, at p. 6654 (Hon. P. MacKay)).
Third, the reform carried out in 2014 removed this offence from Part VII of the Criminal Code, which deals with “Disorderly Houses, Gaming and Betting”, and added it to Part VIII, which concerns “Offences Against the Person and Reputation”. This change marked a fundamental paradigm shift. In Parliament’s view, prostitution must no longer be treated as merely a kind of “nuisance”, but rather as what it really is, “a form of exploitation” (House of Commons Debates, June 11, 2014, at p. 6653; see also R. v. Kloubakov, 2025 SCC 25, at para. 21). Therefore, the objective is no longer to protect good morals, but rather to severely punish interference with the bodily and psychological integrity of victims and to denounce both the objectification and the commodification of the human body. The arsenal of the criminal law is truly being used to uphold the dignity of victims, which is gravely wounded by offences related to the commodification of sexual services (Friesen, at paras. 55-56; Protection of Communities and Exploited Persons Act, preamble).
Thus, the legislative amendments that have shaped the history of this offence show a clear evolution in Canadian society’s understanding of the gravity and harmfulness of the sexual commodification of children as well as Parliament’s desire to have this understanding reflected in the sentences imposed on offenders.
(2) The Crime of Obtaining Sexual Services From a Person Under the Age of 18 Years Involves Two Related Forms of Exploitation and Perpetuates Pre-existing Inequalities
The offence of obtaining sexual services from a child for consideration is a particularly heinous crime. At the risk of repeating ourselves, there is no question that, in general, sexual offences against children “are among the most profoundly immoral acts an individual can commit” (Sheppard, at para. 1). Indeed, sexual abuse of children constitutes exploitation of a highly vulnerable population (Friesen, at para. 65).
However, the sexual exploitation of a child is even more serious when it occurs in a context of commodification of sexual activity. In addition to being subjected to the exploitation that is inherent in all sexual abuse of children, the child is subjected to an additional form of exploitation: the commodification of their body. This crime must therefore be understood as being doubly exploitative.
The sexual commodification of children contributes to their dehumanization. It is a “paradigm of serious wrongdoing” that “is a universally accepted wrong” (Alcorn, at para. 42). When a child is subjected to this type of abuse, it turns them into a mere sexual object for the gratification of adults’ sexual desires (Friesen, at paras. 78 and 89; Alcorn, at para. 43; see, by analogy, the comments of L’Heureux-Dubé, Gonthier and Bastarache JJ. in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 183). It is therefore hardly surprising that Canadian law has long recognized the specific evil represented by the sexual commodification of children as well as the need to suppress it and to severely punish the adults who create the demand for it by participating in it. Indeed, as we indicated above, the Criminal Code has expressly prohibited obtaining sexual services from a minor since 1988 (formerly s. 212(4) Cr. C., now s. 286.1(2) Cr. C.).
The sexual commodification of children offends the basic code of values of Canadian society (Friesen, at para. 65). This crime reflects the fact that children are “some of the most vulnerable members of our society” and that they “deserve to enjoy a childhood free of sexual violence” (para. 1). The legislative scheme of sexual offences against children was created to protect their fundamental rights, that is, their personal autonomy, their bodily and sexual integrity, their dignity and their equality. Sexual violence causes serious physical, emotional and psychological harm to the children who are its victims. Such violence can “interfere with children’s self-fulfillment and healthy and autonomous development to adulthood” (Friesen, at para. 58; see also Sharpe, at paras. 158, 184-85 and 188, per L’Heureux-Dubé, Gonthier and Bastarache JJ.; G. Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at §12.64). Moreover, sexual violence causes harm not only to the direct victim of the offence, but also to families, communities and society more generally (Friesen, at para. 62).
But there is more. Another aspect of this crime that is both important and salient cannot be ignored: it disproportionately affects certain segments of the population that are particularly vulnerable.
In Friesen, our colleagues Wagner C.J. and Rowe J. made a point of saying that the sexual abuse of children disproportionately affects young girls and Indigenous persons (paras. 68-70). In fact, as they stated in their reasons, studies and statistics show that, in 2012, “81 percent of child and youth victims of police-reported sexual offences were female” (para. 68) and that Indigenous persons, too, “experience childhood sexual violence at a disproportionate level” (para. 70 (emphasis added)).
The profile of the main victims of the sexual commodification of children matches the above description. For example, in Manitoba, “[m]ore than 70% of the children involved in the child sex industry . . . are Indigenous, with the majority of them being girls” (Alcorn, at para. 20). The Attorney General of Quebec, for his part, notes in his factum that victims are often young girls who have run away from youth protection centres and have mental health and addiction issues (A.F., at para. 3; Chrismas, at pp. 80-82; see also Friesen, at para. 71). The violence suffered by these groups has the effect of perpetuating pre-existing disadvantages; it undermines gender equality and equality between Indigenous and non-Indigenous persons (Friesen, at paras. 68 and 70). The sexual commodification of children also serves as a gateway to adult prostitution. Indeed, “[t]he average age of entry into the sex industry in Canada was fourteen years old” (Chrismas, at p. 48).
The disproportionate impact of this crime on highly vulnerable populations must be taken into account in order (1) to properly understand both its harmfulness and its wrongfulness and (2) to recognize the legitimate interests that the legislative scheme is meant to protect (Friesen, at para. 50). As we emphasize in these reasons, the offence of obtaining sexual services from a person under the age of 18 years for consideration is a veritable scourge with devastating consequences both for victims and for society more generally. The state therefore has every interest in severely punishing it.
(3) The Offence of Obtaining Sexual Services From a Person Under the Age of 18 Years Captures Only Persons Whose Conduct Is Inherently Wrongful and Whose Moral Blameworthiness Is Necessarily High
In argument before us, Mr. Denis focuses on the two ways in which a person may incur criminal liability under s. 286.1(2)(a) Cr. C.: either by obtaining the sexual services of a child or by communicating for the purpose of obtaining them. While he admits that [translation] “in both contexts, the objective gravity of the offence is undeniable”, Mr. Denis nevertheless submits that these two modes of commission mean that “moral responsibility can vary significantly” (R.F., at para. 41). He states in particular that this offence can [translation] “encompass an array of conduct of varying gravity” (para. 48) and that the advent of websites for sharing explicit content makes it possible to solicit sexual services online, “sometimes without organized exploitation in the classic sense” (para. 51).
It is true that s. 286.1(2) Cr. C. specifies two different ways of committing this offence. The accused either obtains sexual services from a child for consideration or communicates for the purpose of obtaining them. In the latter scenario, the offence is inchoate (Alcorn, at paras. 54-55, quoting R. v. Chiang, 2012 BCCA 85, 286 C.C.C. (3d) 564, at para. 18). Given that communication can occur by various means in a variety of contexts, the commission of this offence may involve different degrees of blameworthiness.
That being said, while it is true that this offence can be committed in a variety of circumstances, there should be no misapprehension as to the degree of variability that may exist in the blameworthiness of the offenders who commit this offence. This crime is heinous because it necessarily involves the intent to sexually abuse a child for consideration. As we have already noted, a child who is a victim of this offence is simultaneously subjected to two forms of serious exploitation. Any analysis of an offender’s blameworthiness must therefore start from the premise that their blameworthiness is very high. This will always be the case, regardless of the circumstances in which the offence is committed. Naturally, this does not mean that all offenders who commit this offence will have the same degree of blameworthiness. However, even when it is committed in the “least serious” circumstances, the degree of blameworthiness involved in this offence is high.
Indeed, establishing the mens rea requires proving that the offender communicated with someone with the specific intent of obtaining sexual services for consideration from someone they knew to be under the age of 18 years. In other words, this offence always results from an unconscionable desire by the offender to subject the victim, whom the offender knows to be a minor, to sexual exploitation and the commodification of their body. In short, the fact that the offender does not ultimately obtain sexual services from the child (because the offender either changes their mind or is arrested before being able to obtain them) does not diminish their blameworthiness. Obtaining sexual services merely aggravates an offence that is already very serious (see Faroughi, at para. 116). In fact, “[the absence of a specific victim] does not detract from the degree of responsibility of the offender for that offence”, since the absence of an aggravating factor “is not a mitigating factor” (Friesen, at paras. 93 and 150).
Similarly, where a charge results from a police sting operation, this does not diminish the offender’s moral blameworthiness, because the accused cannot “take . . . credit” for the absence of a specific victim (Friesen, at para. 93). Sexual offences committed against children are never considered “victimless” crimes, since people feed the market that profits from their exploitation (Sharpe, at para. 103). Police sting operations have become a crucial tool for detecting offenders and thus for protecting the children who could potentially become their victims (Friesen, at para. 94). It is important to remember that sexual violence against children is often “hidden, unreported, and under-recorded” (para. 67). The child sex trafficking industry prospers because it is “strategically invisible” (Alcorn, at para. 20, quoting Chrismas, at p. 31).
C. Constitutionality of the Sentence
(1) The Legal Framework Used in Applying Section 12 of the Charter
The legal framework used in applying s. 12 of the Charter is well established. It involves an analysis that proceeds in two main stages (Quebec (Attorney General) v. Senneville, 2025 SCC 33, at paras. 38-45; Bertrand Marchand, at para. 104).
First, the court must determine fit and appropriate sentences for (a) the offender before it and (b) “possibly other reasonably foreseeable offenders” (Bertrand Marchand, at para. 104). It must do so without regard to the mandatory minimum sentence. For this purpose, the court must carefully adhere to the principles of sentencing, which are set out in ss. 718 et seq. Cr. C. The sentence must be tailored to the circumstances of the case and the objective gravity of the offence. It must be adjusted upwards or downwards based on the various aggravating and mitigating factors present. In determining the fit and appropriate sentence, the court must always be guided by the fundamental principle of sentencing, that is, proportionality (Hills, at paras. 56-59; s. 718.1 Cr.C.), and it must determine as specific a sentence as possible (Bertrand Marchand, at para. 122; Hills, at para. 94).
Second, once the court has determined the fit and appropriate sentence or sentences (for the offender before it and for the other offenders in the proposed scenarios), it must compare them with the mandatory minimum sentence to determine whether the latter infringes s. 12 of the Charter. A sentence will infringe s. 12 if, among other things, it is so inordinately severe that it can be characterized as “grossly disproportionate” (Hills, at para. 35). The court’s analysis takes into account three factors that are “essential to consider”: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (Senneville, at para. 44; Hills, at para. 122). Failure to consider these three factors in the analysis is an error of law (see R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 18).
It is important to recall that a grossly disproportionate sentence is not a sentence that is merely, or even particularly, excessive or disproportionate. Nor is it a sentence that may seem unreasonable in the eyes of some. Similarly, a sentence that a court views as demonstrably unfit will also not be grossly disproportionate. The threshold is much higher. For a mandatory minimum sentence to be characterized as grossly disproportionate, a court must conclude that it is “so excessive as to outrage standards of decency”, in other words, that it is abhorrent or intolerable and that it shocks the conscience of Canadian society (Hills, at paras. 106-15; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 24). This Court’s jurisprudence points out that this is a demanding constitutional standard that reflects a measure of deference to Parliament’s legitimate legislative choices with regard to sentencing (R. v. Hilbach, 2023 SCC 3, [2023] 1 S.C.R. 116, at para. 81; Hills, at para. 113). Courts should therefore exercise restraint in this regard and not be quick to conclude that a sentence meets the test for gross disproportionality, even if the sentence seems particularly severe or excessive. Consequently, it is only on “rare and unique occasions” that a court will find that a sentence infringes s. 12 of the Charter (Hilbach, at para. 51, quoting Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, at p. 1417).
(2) The Reasonably Foreseeable Scenario
In this case, the Court of Appeal relied on the sixth scenario proposed by Mr. Denis to challenge the constitutional validity of the mandatory minimum sentence. We must therefore begin by making sure that this scenario is reasonably foreseeable and consistent with the requirements established by our jurisprudence (Hills, at paras. 76-92; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 75).
The reasonableness of a scenario is a question of law subject to the correctness standard of review. Indeed, the question of whether a legal standard is met is a question of law (R. v. Campbell, 2024 SCC 42, at para. 115; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 23; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20).
(a) The Facts Used in the Sixth Scenario Are Reasonably Foreseeable
Once again, here is the scenario proposed by Mr. Denis and considered by the Court of Appeal:
Scenario 6
A person who is eighteen (18) years old texts a friend who is a minor. He knows that she is a sex worker. They agree to have sex, and the person who is eighteen (18) years old offers money to the minor. He has feelings for her, but he does not want to admit this to her. In all cases, even before the encounter, the 18-year-old has committed the offence set out in 286.1(2) Cr.C. as well as the offence of luring a child.
In our view, the facts on which this scenario is based are reasonably foreseeable (see Senneville, at paras. 55-60; Hills, at para. 77). The hypothetical offender’s conduct is captured by the offence, and there is nothing fanciful or unrealistic about the idea of an 18-year-old young adult offering money to a child for the purpose of obtaining a sexual service of some kind (see, e.g., Faroughi). Such situations can reasonably be expected to arise, as a matter of common sense and judicial experience (Nur, at para. 62).
However, the sixth scenario, as proposed by Mr. Denis in the courts below, must first be purged of any element that is not in keeping with this Court’s jurisprudence on sexual offences committed against children.
(b) The Sixth Scenario Includes Details That Are Irrelevant for Sentencing Purposes
While the facts used in the sixth scenario are reasonably foreseeable, the scenario nevertheless contains details that are inappropriate and irrelevant. It is important to stress that Canadian criminal law represents a system of values and that the sentencing objective of denunciation “embodies the communicative and educative role of law” (Friesen, at para. 105; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 102). Courts must therefore ensure that they do not contribute to the trivialization of sexual offences committed against children, whether by using language that is euphemistic or that downplays the offence or by referring to irrelevant factors (Friesen, at para. 144; Bertrand Marchand, at para. 64).
Only details that are relevant for sentencing purposes must be included in a reasonably foreseeable scenario. This means that personal characteristics and facts that cannot affect the gravity of the offence and the moral blameworthiness of the offender, or that are not otherwise recognized as relevant by the jurisprudence, must not be included (see, e.g., R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48; R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11). Superfluous details, often added to make the offender more sympathetic, must be removed to prevent them from unduly tainting the analysis (see I.F., Attorney General of Ontario, at para. 15).
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. 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.
Recognizing the offender’s romantic feelings as a mitigating factor (or even as a relevant factor in the analysis) would amount to condoning a serious abdication of responsibility by the adult offender or even excusing his wrongful conduct. It goes without saying that adults always have full responsibility for refraining from committing sexual offences against children (Friesen, at para. 154; George, at para. 2). If we were to take the above factor into account, this would amount to endorsing an approach under which the absence of “bad intentions” can be treated as a mitigating factor. But as noted above, the absence of an aggravating factor is not a mitigating factor (Friesen, at para. 150). If, generally speaking, the manner in which an adult came to have sexual contact with a child cannot be a mitigating factor (Friesen, at para. 154, quoting R. v. J.D., 2015 ONSC 5857, at para. 25; Alcorn, at para. 57), then, in our view, neither can the question of why the adult did so.
Since the romantic feelings of the offender in the sixth scenario are of no relevance, they should be removed from the description of the scenario to avoid the risk that they will insidiously taint the analysis of his moral blameworthiness. Once purged of irrelevant elements, the scenario would read as follows:
• An 18-year-old man texts a female friend who is a minor and whom he knows offers sexual services. They agree to have sex for consideration. In so doing, the offender has committed the offence provided for in s. 286.1(2) Cr. C.
We must now determine as specifically as possible what sentence would be fit and proportionate for this offender, in light of the principles set out in the Criminal Code and the case law (Senneville, at para. 39; Bertrand Marchand, at para. 122; Hills, at paras. 53-56).
We note that “[i]t is up to the offender/claimant to articulate and advance the reasonably foreseeable hypothetical which forms the basis for the claim that the impugned provision is unconstitutional” (Hills, at para. 93; see also R. v. Goltz, [1991] 3 S.C.R. 485, at p. 520). Indeed, it is very well settled that the burden of establishing a breach of a Charter right falls upon the party alleging the breach (R. v. Simpson, 2015 SCC 40, [2015] 2 S.C.R. 827, at para. 47; R. v. Smith, [1989] 2 S.C.R. 1120, at p. 1132; R. v. White, [1999] 2 S.C.R. 417, at para. 113, per L’Heureux-Dubé J., dissenting). We note as well that an adversarial proceeding remains the best way to assess the reasonableness of the proposed scenario (Hills, at para. 93; Senneville, at paras. 58 and 87, per Moreau J., and at para. 213, per Wagner C.J. and Côté J., dissenting, but not on this point). For this reason, the court should generally avoid adding to the scenarios proposed by claimants or putting forward new ones without having afforded a fair opportunity to challenge or comment upon the reasonableness of the hypothetical (Hills, at para. 93; Bertrand Marchand, at para. 115). Even where, as in this case, the scenario proposed by the offender is relatively brief, the court must endeavour to craft as specific a sentence as possible while still respecting the limits imposed by the adversarial process.
(3) The Fit Sentence for the Offender in the Reasonably Foreseeable Scenario Is Five Months
(a) General Principles of Sentencing
The fundamental purpose of sentencing is to protect society and prevent crime in the broad sense by imposing just punishments that, depending on the case, have one or more of the penological objectives set out in the Criminal Code (s. 718 Cr. C.). These objectives are divided into two broad categories: punitive objectives, which include denunciation, deterrence and separation of the offender from society (s. 718(a), (b) and (c) Cr. C.), and restorative objectives, which include rehabilitation (reintegration into society), reparation of harm and promotion of a sense of responsibility (s. 718(d), (e) and (f) Cr. C.; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 43). Tensions may exist in the pursuit of these objectives, but it is up to the sentencing judge to strike a proper balance between them and to weigh their importance based on the nature of the offence and the characteristics of the offender (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43; R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 49; R. v. J.W., 2025 SCC 16, at para. 40).
This broad discretion is constrained by the cardinal principle of proportionality, which seeks the imposition of a sentence that is sufficient to denounce the offence and punish the offender, without exceeding what is necessary (Senneville, at para. 35; J.W., at para. 41; Bissonnette, at para. 50; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; Nasogaluak, at paras. 40-42; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 111, per Rowe J., concurring). This principle requires the court to consider the gravity of the offence and the degree of moral blameworthiness of the offender, in order to arrive at a sentence that is proportionate to these two factors (s. 718.1 Cr. C.; see also Friesen, at para. 30). To inform this analysis, s. 718.2 Cr. C. sets out a series of secondary principles, “including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider ‘all available sanctions other than imprisonment that are reasonable in the circumstances’, with particular attention paid to the circumstances of aboriginal offenders” (Nasogaluak, at para. 40; see also J.W., at para. 46). In short, proportionality “serves to give effect” to the objectives of sentencing and to guide the court’s discretionary balancing of them (J.W., at para. 46; see also para. 57).
(b) Proportionality
(i) Gravity of the Offence
The gravity of the offence has an objective component and a subjective component. We explained at length above that obtaining sexual services from a child is an offence with significant objective gravity, as indicated by the 10-year maximum sentence by which it is punishable. This reflects society’s strong condemnation of this offence and Parliament’s clear intention that it be severely punished.
Subjective gravity is assessed in light of the facts surrounding the commission of the offence in question. In this regard, relevant facts will include the manner in which the offence was committed and its consequences for the victim (Hills, at para. 58).
In the case of the sixth scenario, a number of factors tend to draw the offence toward the high end of the scale of gravity:
• The offence involves the abuse of a person under the age of 18 years (s. 718.2(a)(ii.1) Cr. C.). The Court must take into account the exploitation that is inherent in this offence and the fact that adolescents are highly vulnerable (Friesen, at paras. 135-36; Bertrand Marchand, at para. 87).
• Since the victim is a friend of the offender, we infer that this offence involves the abuse of a position of trust, which only increases the exploitation inherent in this crime[3] (s. 718.2(a)(iii) Cr. C.; Friesen, at paras. 125-30; see, e.g., Mentor v. R., 2022 QCCA 1270, 84 C.R. (7th) 355, at paras. 96-100; Lemieux v. R., 2023 QCCA 480, at paras. 51-59).
• The offence had a significant impact on the victim, considering her age and the commodification of her body (s. 718.2(a)(iii.1) Cr. C.; Friesen, at para. 139).
We therefore conclude that the subjective gravity of the offence is high. It does not, however, have the highest degree of gravity. We also reiterate that, on the facts of the proposed scenario, the crime remains at the inchoate stage.
(ii) Moral Blameworthiness
Moral blameworthiness is a function of various factors relating to the offender’s mens rea and state of mind before and at the time of committing the offence, as well as aspects of their background and personal circumstances that affect their degree of responsibility for the offence (Hills, at para. 58). The case law also recognizes that certain circumstances subsequent to the commission of the offence may be mitigating. This is true, for example, of the various indicators of the offender’s rehabilitation and the promotion of their sense of responsibility (Bertrand Marchand, at para. 72). While it is open to doubt that they are mitigating factors in the strict sense (Suter, at para. 48; Pham, at para. 11), these indicators nonetheless remain relevant in balancing the applicable penological objectives.
The moral blameworthiness of the offender in the sixth scenario is increased by the following aggravating factor:
• The offender made a deliberate and conscious choice to solicit sex from a person under the age of 18 years with whom it is possible to infer that he has a relationship of trust.
Conversely, his moral blameworthiness is mitigated by the following circumstances:
• The offender is only 18 years old. His lack of maturity mitigates his moral responsibility (Hills, at para. 161; Bertrand Marchand, at para. 132; Senneville, at para. 95; Fournier v. R., 2012 QCCA 1330, at para. 42).
• The offender has no criminal record (Bertrand Marchand, at para. 127; R. v. Nahanee, 2022 SCC 37, [2022] 3 S.C.R. 3, at para. 19).
In the final analysis, the offender’s state of mind at the time of the offence indicates a very high degree of moral blameworthiness. He communicated with the victim for the specific purpose of committing very serious acts that were fraught with consequences. However, his immaturity and his lack of judgment tied to his youth diminish his level of responsibility.
(c) The Appropriate Sentence, Having Regard to the Applicable Penological Objectives, and Within the Limits of Proportionality
In light of the facts put forward by Mr. Denis in the proposed reasonably foreseeable scenario, we must now balance the various penological objectives and impose a sentence that will meet them, within the limits of proportionality.
In this case, the nature of the offence means that denunciation and deterrence are of undeniable importance. Indeed, Parliament has indicated that these punitive objectives must be given “primary consideration” when the offence involves the abuse of a person under the age of 18 years or a vulnerable person (s. 718.01; see also s. 718.04 Cr. C.). Beyond this legislative guidance, the presence of significant aggravating factors further increases the need for denunciation and deterrence. At the same time, our jurisprudence also specifies that “[i]n the context of youthful offenders, the principles of general deterrence and denunciation should come secondary to that of rehabilitation” (Hills, at para. 161).
This last principle is, however, subject to qualification in the case of offences against children. As the Court noted in Friesen, s. 718.01 Cr. C. prescribes a certain ordering of penological objectives, such that it is “no longer open to the judge to elevate . . . objectives [other than denunciation and deterrence] to an equal or higher priority” (para. 104; see also paras. 102-3 and 105). Thus, in sentencing a youthful first offender who has committed an offence against a child, [translation] “the judge must . . . prioritize denunciation and deterrence in accordance with section 718.01 Cr. C.”, despite the undeniable importance of the restorative objectives (Siciliano v. R., 2025 QCCA 335, at para. 31; see also paras. 27-30; Courchesne v. R., 2024 QCCA 960, at paras. 49-51).
The sentence must properly reflect these objectives. That being said, it must always be borne in mind that the sentence needs to remain proportionate, in other words, it must be “severe enough to denounce the offence but must not exceed ‘what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence’” (Bissonnette, at para. 50, quoting Nasogaluak, at para. 42).
Having regard not only to the significant aggravating circumstances that characterize the moral blameworthiness of the offender and the gravity of the offence, but also to the importance of the principle of restraint given the offender’s youth (Senneville, at para. 96), we are of the view that a short term of incarceration is justified and proportionate. This will address the need for denunciation and deterrence (Proulx, at para. 114), while making it possible to adequately achieve the applicable restorative objectives.
The sentence imposed in a given case should tend to be similar to “sentences imposed on similar offenders for similar offences committed in similar circumstances” (s. 718.2(b) Cr. C.). This principle of parity is an expression of proportionality and gives meaning to it (Friesen, at paras. 31-33). In Quebec, there is a concentration of sentences at six to eight months, depending on the offenders’ level of rehabilitation, for men, often middle-aged, who communicate with the police for the purpose of obtaining sexual services from a 16-year-old girl (R. v. Huacho Cruz, 2024 QCCQ 2826 (six months less a day); R. v. Bernard, 2022 QCCQ 42 (six months); Tremblay v. R., 2024 QCCQ 1720, aff’d 2026 QCCA 221 (six months); R. v. Zacharakis, 2025 QCCQ 2842, leave to appeal the sentence granted by the Quebec Court of Appeal, 2025 QCCA 916 (seven months); R. v. Lapointe, 2025 QCCQ 2702 (eight months)).[4] It is therefore possible to situate the proposed offender in relation to other similar cases, bearing in mind that here the offender is a young man 18 years of age. We note parenthetically, given that it is not up to us to establish a range, that a sentence of six to eight months for mature offenders who have deliberately chosen to solicit sex from a child for consideration may seem lenient in light of the teachings of our jurisprudence (see Friesen, at paras. 108-14).
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. In our opinion, this is “the shortest possible sentence that is proportionate to the gravity of the offence” (Hills, at para. 165).
At first glance, this sentence may seem severe when compared with those imposed on the reasonably foreseeable 18-year-old offenders referred to in Bertrand Marchand and Senneville. In Bertrand Marchand, the offender had texted his 17-year-old girlfriend with the intent to wrongfully transmit a pornographic photo of her to his friend, thereby committing the offence of luring a child. The Court found that a conditional discharge with probation for six months was an appropriate sentence (paras. 130-33). In Senneville, the offender had received from his friend an intimate photo of the latter’s girlfriend. He looked at it and kept it on his phone, thereby committing the offences of possession of and accessing child pornography[5] (paras. 83-84). The Court determined that the proportionate sentence was also a conditional discharge with strict probationary terms (para. 99).
Those offences do, of course, involve the wrongful exploitation of children. However, the offence of obtaining sexual services from a child covers a limited range of acts that entail even more direct interference with the child’s bodily and psychological integrity. Indeed, the offence of obtaining sexual services from a child necessarily involves a dimension of commodification and economic exploitation of the body, which is not the case for the offences in question in those two cases. The offences of luring a child (s. 172.1(2) Cr. C.) and possession of and accessing child sexual abuse and exploitation material (s. 163.1(4)(a) and (4.1)(a) Cr. C.) capture a broader range of conduct.
This dimension of economic exploitation is also what distinguishes the present scenario from the one considered in Bertrand Marchand, which featured a teacher in her late twenties who had spontaneously lured her 15-year-old student for the purpose of committing the offence of sexual interference against him (s. 151 Cr. C.). The Court found that a 30-day intermittent sentence of imprisonment was appropriate (paras. 124-29). The offence of obtaining sexual services from a child (which often involves the commission of the offence of luring) is objectively more serious, because it also includes a dimension of sexual and commercial exploitation of the child’s body. We explained at length above the profound wrongfulness and harmfulness of this type of act. It is for this reason, among others, that we are of the view that an intermittent sentence would be inappropriate in this case and that a five-month term of incarceration is a fit sentence.
(4) The Mandatory Minimum Sentence Is Not Grossly Disproportionate
We must now assess “the extent of the disparity between [the appropriate sentence and the mandatory minimum sentence] and determin[e] whether that disparity is such that it meets the constitutional standard of gross disproportionality” (Senneville, at para. 41). This analysis must be guided by three crucial components that it is essential to consider: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (para. 44; Hills, at para. 122).
(a) Scope and Reach of the Offence
The more a minimum sentence captures a broad range of conduct of widely varying gravity, the more constitutionally vulnerable it will be (Senneville, at para. 102). In Hills, the Court explained:
In characterizing the offence’s scope, a court may consider whether the offence necessarily involves harm to a person or simply the risk of harm, whether there are ways of committing the offence that pose relatively little danger, and to what degree the offence’s mens rea requires an elevated degree of culpability of the offender. [para. 129]
It is true that this offence can be committed in various ways. For example, it captures both offenders who communicate for the purpose of obtaining sexual services from a child but who abandon their plan and offenders who actually obtain these services. In addition, the offence may be committed not in a human trafficking context, but among friends or couples, more or less impulsively. However, certain aspects of this offence place it among the offences that are “almost always serious and committed by offenders who bear a high degree of moral blameworthiness” (Hilbach, at para. 3).
We have explained at length how the commission of this offence contributes to the commodification and exploitation of victims’ bodies. Even when it is committed in the context of a police sting operation, this type of offence must never be considered a “victimless” crime (Friesen, at paras. 93-94). It always represents a danger to the community, whether or not the victim actually exists.
With respect to the actus reus, the offence of obtaining sexual services for consideration, at its inchoate stage, always involves the same act, regardless of the circumstances in which the act is committed. The offender communicates in some way for the purpose of obtaining sexual services from a child (that is, with a view to sexually exploiting them) for consideration. As for the mens rea, proof of a highly blameworthy intent is always required. Indeed, it requires the specific intent to knowingly subject a child to sexual abuse, all while commodifying that child as merely an object of barter.
These observations help to explain why this offence, though it may be committed in a variety of circumstances, always involves an especially high level of gravity and moral blameworthiness (see also paras. 55-58 above).
(b) Effects of the Penalty on the Offender
Next, the severity of the effects that the mandatory minimum sentence may have on those who are subject to it must also be taken into account in assessing the degree to which the sentence is disproportionate (Hills, at para. 133). The inquiry must focus on the harm associated with the punishment imposed on the offender, in light of the offender’s personal characteristics (paras. 133 and 135). To this end, a court must “certainly consider the additional period of imprisonment imposed by the mandatory minimum” (para. 134).
It is recognized, of course, that in prison “[y]outhful offenders are . . . bullied, pressured to join adult . . . gangs, and are vulnerable to segregation placements” (Bertrand Marchand, at para. 152; see also Senneville, at para. 106). However, the proposed offender in the sixth scenario, for whom the fit sentence is five months’ incarceration, could not escape this reality in any event, even if he were able to avoid the application of the mandatory minimum sentence.
The application of the six-month minimum sentence increases the proposed five-month sentence slightly. However, the additional month cannot be regarded as causing him substantially greater harm. We are a long way here from the hypothetical scenario in Bertrand Marchand, where the fit and proportionate sentence for the youthful offender was a conditional discharge (para. 130; compare also Senneville, at para. 99). In those two cases, there was a very sharp contrast between the minimum sentences of six months’ and one year’s incarceration, respectively, and a discharge. The same cannot be said here. The one-month difference in this case is not such as to shock the conscience of Canadians.
(c) The Penalty and Its Objectives
This third branch of the test for gross disproportionality involves considering “whether . . . the minimum sentence goes beyond what is necessary to achieve Parliament’s sentencing objectives” (Hills, at para. 138). Where the consequences of the offence clearly transgress Canada’s code of values and call for its strong condemnation, greater deference will be owed to Parliament’s choice to introduce a mandatory minimum sentence (para. 139). However, a sentence cannot completely disregard rehabilitation, as this risks being incompatible with human dignity (paras. 141-42).
Sexual offences against children strongly offend Canadians’ basic code of values, and Parliament’s objective in this regard is clear: to protect children by denouncing and deterring offenders through the imposition of severe penalties. Since 2019, this Court’s jurisprudence has been consistent: this type of offence must be punished severely in order to respect Parliament’s legitimate objective (see, e.g., Friesen, at para. 99; Bertrand Marchand, at para. 48; Senneville, at para. 34). We outlined in detail above the objective pursued by Parliament in introducing the mandatory minimum sentence at issue. Deference is owed with respect to this legitimate objective.
In this case, although the six-month mandatory minimum sentence may seem severe in certain exceptional cases like the sixth scenario, it does not completely exclude the objective of rehabilitation. On the contrary, the sentence is relatively short and will allow the offender to reintegrate quickly into society. It strikes a relative balance between the objectives of deterrence and denunciation advanced by Parliament and the other penological objectives, which, though they take a back seat, are by no means excluded.
VII. Conclusion and Closing Remarks
After analyzing the three components of gross disproportionality, we cannot conclude that, in the case of the sixth 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 (Hills, at para. 109). While the six-month minimum sentence is certainly not entirely proportionate, it falls far short of meeting the test for gross disproportionality, which, we reiterate, is a demanding standard. Accordingly, the mandatory minimum sentence does not infringe s. 12 of the Charter, and there is therefore no need to consider whether this infringement is justified under s. 1.
Before we conclude, some remarks should be made about (1) the hypothetical scenario identified by our colleague and (2) her comments concerning the remedy that may be granted for an infringement of s. 12 of the Charter.
First of all, in her analysis of the gross disproportionality of the mandatory minimum sentence, our colleague proposes to use a reasonably foreseeable scenario that differs from the one submitted by Mr. Denis. She analyzes the constitutional validity of the mandatory minimum sentence by reference to a scenario involving a youthful offender with no criminal record who, after communicating for the purpose of obtaining sexual services from a child, changes his mind and does not go to the meeting place (para. 126).
Our colleague reaches the conclusion that the fit and proportionate sentence for this youthful offender is a six-month conditional sentence with strict terms. In this context, she concludes, it would be cruel and unusual to impose on him the sentence of incarceration prescribed by s. 286.1(2)(a) Cr. C. (paras. 138 and 158).
We do not agree with that approach. First, and as has often been noted in this Court’s jurisprudence, the adversarial process remains the best way to assess the reasonableness of a hypothetical scenario and determine the fit and appropriate sentence (Hills, at para. 93). Second, the burden of establishing a breach of s. 12 falls upon the party alleging that the sentence is unconstitutional (Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 42).
That being said, even if we had adopted the scenario proposed by our colleague, we would have come to the conclusion that the mandatory minimum sentence is not grossly disproportionate.
In fact, the scenario she proposes is practically identical to the one put forward by Mr. Denis. The only distinction lies in the absence of a friendship between the offender and the victim, which removes from the analysis the aggravating factor of abuse of a position of trust. As we have noted, the fact that the offender does not go to the meeting place and thus that the offence remains at the inchoate stage is implicit in the sixth scenario. For this reason, we already take this into account in our assessment of the gravity of the offence (see para. 79 above).
Accordingly, even if we had adopted the scenario identified by our colleague, we would have imposed a four-month term of incarceration. This slight decrease from the sentence imposed on the offender proposed by Mr. Denis is not significant enough to change our conclusion on gross disproportionality.
In closing, we consider it inappropriate for our colleague to invite parties to argue in favour of reversing R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. We take no position on the soundness of that decision, since the issue is not before us. As the Court noted in R. v. McGregor, 2023 SCC 4, [2023] 1 S.C.R. 198, “we should not overrule a precedent without having been asked to do so by a party” (para. 23). This is particularly true “with respect to constitutional issues” (para. 24, quoting Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, at para. 6).
For these reasons, we would allow the appeal, overturn para. 8 of the judgment of the Quebec Court of Appeal and set aside the declaration that the mandatory minimum sentence provided for in s. 286.1(2)(a) Cr. C. is invalid.
The reasons of Karakatsanis and Moreau JJ. were delivered by
Karakatsanis J. —
Dissenting Reasons — Karakatsanis J. (Moreau J. concurring)
I. Introduction
Parliament is entitled to express society’s disapproval for wrongful conduct by creating minimum sentences for criminal offences. But those sentences are constitutionally vulnerable if the offence captures a broad range of conduct. That vulnerability is especially acute when the gravity of the offence and the moral blameworthiness of the offender means that a noncustodial sentence would be fit, but a minimum penalty requires incarceration.
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 minimum penalty here therefore violates s. 12 of the Canadian Charter of Rights and Freedoms’ guarantee against cruel and unusual punishment.
Our precedents accordingly require a declaration that the mandatory minimum sentence is of no force or effect. As I will explain, I leave for a future case whether to revisit those precedents and consider the availability of lesser, more tailored remedies.
For these reasons, I dissent. I would declare the mandatory minimum sentence in s. 286.1(2)(a) of the Criminal Code, R.S.C. 1985, c. C‑46, of no force or effect.
II. The Minimum Penalty Is Unconstitutional
The respondent Mario Denis was convicted of communicating with a person under 18 years of age for the purpose of obtaining sexual services for consideration. That offence carries a mandatory minimum penalty of six months’ imprisonment (Criminal Code, s. 286.1(2)(a)). It covers offenders who plan to seek out sex with a child. But it also covers offenders who seek out sex with an adult, and then agree to proceed despite learning the other person is a minor. It also includes offenders who change their mind before arriving at the rendezvous.
A. The Fit Sentence for a Reasonably Foreseeable Offender
(1) The Characteristics of a Reasonably Foreseeable Offender
During oral argument, I asked the Crown about a person who could reasonably fall within the scope of this offence: a youthful first offender agrees to a sexual services transaction with a minor, but changes his mind before arriving at the meetup (transcript, at pp. 11-12). The scope of this offence includes such an offender. And the facts of this very case show this scenario is reasonably foreseeable: in Projet Défensif itself, police arrested someone who arranged a transaction and then backed out, but decided not to charge him (trial reasons (reproduced in A.R., vol. I, at pp. 1-7), at p. 6).
Further, not all offenders caught within the scope of this offence set out to meet a minor. Some — like Mr. Denis himself — seek the sexual services of an adult, but agree to meet a minor when the opportunity is offered. Mr. Denis agreed to proceed despite being told that the person he would meet was 16 years old (R.F., at para. 48).
It is also reasonably foreseeable that this offence could be committed by youthful first offenders. Like any offence, this one “can be committed by persons in any age category” (Quebec (Attorney General) v. Senneville, 2025 SCC 33, at para. 86). Reported cases prove that youthful, first-time offenders can and do commit this offence (see, e.g., R. v. Faroughi, 2024 ONCA 178, 171 O.R. (3d) 81; R. v. Alvi, 2018 ABPC 136, 73 Alta. L.R. (6th) 407).
The inquiry into reasonably foreseeable scenarios “asks what situations may reasonably arise” (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 68 (emphasis added)). And for good reason: the point of the inquiry is to preserve the judiciary’s capacity to maintain effective constitutional review, and avoid leaving bad laws on the books indefinitely (Senneville, at para. 47). Characteristics that are reasonably foreseeable in Canadian society, therefore, must be included. It would be artificial to ignore that offenders’ characteristics may vary their blameworthiness (para. 59).
I therefore proceed to examine the constitutionality of s. 286.1(2)(a) based on a youthful first offender who seeks to arrange a sexual services transaction with an adult, agrees in response to an offer to meet a person under the age of 18, but backs out before their rendezvous. I apply the framework this Court consolidated in R. v. Hills, 2023 SCC 2, [2023] 1 S.C.R. 6, and R. v. Hilbach, 2023 SCC 3, [2023] 1 S.C.R. 116. I start by determining the appropriate sentence for this reasonably foreseeable offender and then consider whether the minimum sentence is grossly disproportionate.
(2) The Appropriate Sentence for the Reasonably Foreseeable Offender
A proportionate sentence reflects the gravity of the offence and moral blameworthiness of the offender (Hills, at para. 57). Proportionality is the “sine qua non of a just sanction” (R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37) — the lodestar principle of sentencing. It sets the outer bounds of a fit sentence. The various objectives of sentencing — like denunciation, deterrence, separation, and rehabilitation — can push a sentence toward either end of the range that constitutes a proportionate sentence, but not beyond that limit. Proportionality “is supposed to be a limit on the pursuit of such goals, not be constituted by them” (V. Chiao, “Proportionality and Its Discontents” (2022), 41 Law and Philos 193, at p. 208 (emphasis deleted); see also R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42). As I explain below, a proportionate sentence for this foreseeable offender would not include custody.
Section 286.1(2) captures a broad range of conduct. It has an inchoate aspect: it applies not only to those who obtain the sexual services of a minor, but also to those who communicate for the purpose of doing so, even if they do not obtain them. The offence punishes both “offenders who communicate with actual children and offenders who ultimately communicate with police officers posing as children through sting operations” (R. v. Bertrand Marchand, 2023 SCC 26, at para. 142). This factor should not be overemphasized, but it remains relevant (R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 93).
When adults take steps to exploit children for sexual purposes, they contravene “one of the most fundamental values of Canadian society” (Friesen, at para. 65). Denunciation and deterrence receive “primary consideration” when sentencing for these kinds of offences (Criminal Code, s. 718.01).
But all offences apply to a spectrum of conduct. Acknowledging this does not detract from the harm wrought by transacting for the sexual services of a minor, and this offender’s conduct lies at the lower end of the spectrum. That is why, even though denunciation and deterrence receive priority in this context, sentencing judges retain “discretion to accord significant weight to other factors” in fashioning a fit and proportionate sentence (Friesen, at para. 104; see also Bertrand Marchand, at para. 28). The inherent wrongfulness of sexual violence against children “should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability” (Bertrand Marchand, at para. 171).
Those factors are present here. First, youth is “generally a mitigating factor” (Senneville, at para. 95). Restraint and rehabilitation reach their apex when sentencing youthful first-time offenders (paras. 95-96). Because our criminal law views youthful offenders as having high rehabilitative prospects, yet “incarceration is often not a setting where the reformative needs of young people are met”, imprisonment affects them especially negatively (Hills, at para. 165). That means courts should impose the shortest possible proportionate sentence on youthful first-time offenders.
Even a short period of incarceration could have a drastically detrimental effect on a youthful first-time offender. Young adulthood is a key point in a person’s developmental trajectory. Spending months in jail, where young people are “often bullied, recruited into adult gangs for protection and are vulnerable to placements in segregation” (Hills, at para. 165), threatens that developmental process and one’s prospects of rehabilitation. That does not license a departure from proportionality — but it does require courts to err on the lower end of the spectrum of proportionate punishments that achieve denunciation and deterrence.
Two more features of the reasonably foreseeable offender’s conduct decrease his moral blameworthiness. The foreseeable offender commits the offence impulsively. He does not set out to arrange sexual activity with a minor, but he agrees to do so when given the opportunity. He also abandons the arrangement before any sexual contact. Both impulsivity and abandonment further reinforce this offender’s place on the low end of the blameworthiness spectrum.
As this Court has explained, the spontaneity and short duration of an offender’s actions are “significant” considerations (Bertrand Marchand, at para. 127). They played a major role in the Court’s conclusion that some instances of child luring exhibit lower moral blameworthiness than others. The point is not that the absence of aggravating factors — grooming or premeditation — amounts to a mitigating factor. It is that this offence can be committed with varying degrees of moral blameworthiness, and impulsivity tends to favour the lower end of that spectrum.
And an offender who abandons their ill-conceived steps toward a sexual transaction with a minor is less blameworthy than an offender who follows through. Many people who commit this offence do not abandon those steps — including Mr. Denis and the offender in Faroughi.
There is no doubt that offenders who agree to an arrangement for sexual services with a minor are morally blameworthy, even if they eventually abandon it. Nor can anyone question that any form of participation in commercializing sexual violence against children is inherently harmful and inherently blameworthy. But both culpability and gravity come in varying degrees. And both are diminished here because no sexual contact ever takes place. I do not accept that a carceral sentence is always fit for this offence, no matter the moral culpability of the offender and the gravity of the offence.
Had the reasonably foreseeable offender been Indigenous, that too would likely have favoured restraint. Sadly, Indigenous offenders continue to be significantly overrepresented in Canadian prisons, so “[t]he unfortunate truth is that Indigeneity is an offender characteristic that is more than ‘theoretically possible’” (Hills, at para. 87). And many offenders suffer from mental health issues that would impact their moral blameworthiness. Even without those factors, however, a noncustodial sentence is fit for this reasonably foreseeable offender.
A six-month conditional sentence order with strict terms is a fit sentence for this offender. As a sentence served in the community, it achieves denunciation and deterrence while also reflecting restraint and rehabilitation (R. v. Proulx, 2000 SCC 5, [2005] 1 S.C.R. 61, at paras. 22 and 41).[6] Bertrand Marchand and Senneville show that noncustodial sentences can be fit even when denunciation and deterrence must be the primary considerations.
This Court has endorsed a conditional discharge for an 18-year-old offender who executes a plan to solicit an explicit photo from his 17-year-old girlfriend and forward it to a friend without his girlfriend’s knowledge (Bertrand Marchand, at paras. 130-33). And the Court would have imposed the same sentence on the recipient of that photo: the 18-year-old who receives and saves it (Senneville, at paras. 88 and 99).
This offender does not deserve a significantly higher sentence than those. Even if this offence carries more gravity, the impulsivity of this offence and the offender’s abandonment of his plan are mitigating factors absent in Bertrand Marchand and Senneville. And those offences both involved the actual possession of child pornography. That means those offenders each “participate[d] in the serious violation of children’s dignity” and infringed a child’s “right not to have the permanent record of their abuse and exploitation viewed by adults” (Senneville, at para. 32, quoting R. v. Pike, 2024 ONCA 608, 173 O.R. (3d) 241, at para. 147). Because the offender here abandons their plan, they do not perpetuate the exploitation of a child in the same way as the offenders in Bertrand Marchand or Senneville.
The Court would have imposed a 30-day intermittent sentence on the other hypothetical offender in Bertrand Marchand: a late-20s teacher who, in the throes of a manic episode, arranges and follows through on a sexual encounter with her 15-year-old student (paras. 126 and 129). The gravity and culpability of that conduct — following through with a sexual encounter with one’s own student — far outstrips that of the foreseeable offender here. It follows that this offender’s sentence should fall below that mark.
If a noncustodial sentence was appropriate for the youthful sexual offenders in Bertrand Marchand and Senneville, then a noncustodial sentence is appropriate here too. This offender acts more impulsively, and he abandons his plan. A significant departure from those precedents is unwarranted. Although a conditional sentence is not available when an offence is punishable by a minimum term of imprisonment (Criminal Code, s. 742.1(b)), a six-month conditional sentence is the fit sentence here. And as I will explain, six months in prison is grossly disproportionate relative to that sentence.
(3) The Mandatory Minimum Is Grossly Disproportionate as to the Reasonably Foreseeable Offender
Bertrand Marchand and Senneville support the fit sentence for this representative offender. They also control the outcome of the gross disproportionality analysis: for similar reasons as in those cases, a six-month sentence of imprisonment would be grossly disproportionate here.
(a) The Offence Sweeps Broadly
If a mandatory minimum sentence captures conduct whose gravity and culpability varies widely, it becomes constitutionally vulnerable. This one does just that. Like the possession of child pornography, this offence captures both the well-organized and the impulsive one-off offender (Senneville, at para. 104). Indeed, it sweeps more broadly still: its inchoate nature means it also captures the offender whose moral good sense stops them before they engage in the exploitation it is designed to target.
Of course, most offenders do not fall at the lowest end of the gravity-culpability spectrum. Most people who communicate with children for the purpose of obtaining sexual services for consideration are neither impulsive nor inclined toward eleventh-hour abandonment. But the “common characteristics of an offence should not be conflated with its essential elements” (Bertrand Marchand, at para. 138). When Parliament attaches a minimum penalty to an offence “that can be committed in many ways and under many different circumstances by a wide range of people” (R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 3), it runs the risk of imposing grossly disproportionate sentences on the low end of that range.
That is what the Court concluded in both Bertrand Marchand and Senneville, and it should not depart from those conclusions here. The minimum penalties at issue in both those cases captured offenders with significantly lower culpability than the median offender. That favoured gross disproportionality in those cases. It favours gross disproportionality here too.
(b) The Effects of the Penalty on the Offender Are Devastating
If a fit sentence is noncustodial, a mandatory term of imprisonment always entails a devastating effect. There is a “profound qualitative difference between a community-based penalty and imprisonment” (Senneville, at para. 108, quoting L. Kerr and M. Perlin, “A New Justification for Section 12 Hypotheticals and Two Rules for Constructing Them” (2025), 5 S.C.L.R. (3d) 179, at p. 189). It is obvious why: prisons are a place of isolation from one’s community. The difference between a noncustodial and a carceral sentence is the difference between time with and without one’s friends and family. It is the difference between time spent on one’s education or employment and time spent away from it. And it is the difference between basic human freedom and the harshest deprivation of liberty known to our legal system.
These differences are stark for everyone. But they are especially stark for young offenders. A delay in the development of a young person’s education and employment sets them back further than a mature adult. Prisons are not a setting for the healthy development of young adults.
In fact, they are the opposite: young offenders are overrepresented in use-of-force incidents — especially Indigenous young offenders (Office of the Correctional Investigator and Office of the Provincial Advocate for Children and Youth, Missed Opportunities: The Experience of Young Adults Incarcerated in Federal Penitentiaries (2017), at pp. 28-29). Rehabilitative opportunities are scarce. A significant number of young adult offenders “repor[t] doing very little during the day” (p. 35). The overwhelming majority report little contact with their correctional officers, and many report uncertainty about their options upon release (p. 37). Educational opportunities are scarce, with most regions offering high school equivalent educations that do not allow offenders to apply to most colleges and universities (p. 44). And youthful offenders are disproportionately segregated and pressured to join adult prison gangs (Senneville, at para. 106).
If prisons are “a finishing school for criminals” that “ill-prepar[e] them for reintegration into society” (Proulx, at para. 16), that is especially true for young people. Society shares in their detriment, too: “. . . crushing sentences can endanger society by ‘harden[ing]’ young defendants into an anti-social path” (R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at para. 34, quoting R. v. Desir, 2021 ONCA 486, at para. 32).
These ill effects sit uneasily with the legal principles that govern youthful offenders. Youthful first-time offenders should benefit from a principle of restraint that prioritizes rehabilitation (Senneville, at para. 95). And rehabilitation, which ordinarily is prioritized “as the paramount sentencing objective” for youthful offenders (Habib, at para. 31), remains an important consideration (Friesen, at para. 104). So when a minimum penalty requires their incarceration when a noncustodial sentence would be fit, they are deprived not only of a life outside prison, but of the benefit of legal principles designed to maximize their chance at that life.
Thus a minimum penalty of imprisonment, when a noncustodial sentence is fit, is particularly devastating for young adult offenders. The Court has reached that conclusion twice in the last three years, in both Bertrand Marchand and Senneville. There is no reason to deviate from it here. This factor also favours a finding of gross disproportionality.
(c) The Penalty Goes Further Than Necessary to Satisfy Parliament’s Objectives
Parliament’s aim in enacting s. 286.1 is laudable. As Friesen emphasizes, sexual offences against children are a scourge to all society. Minimum penalties like this one are part of a “paradigm shift initiated by Parliament” to connect the penalties for sexual offences against children to “the contemporary understanding of the profound harm” those offences cause (Senneville, at para. 111).
But as in Bertrand Marchand and Senneville, this minimum penalty goes beyond what is necessary to achieve that connection. It prioritizes denunciation and deterrence and sidelines rehabilitation, even in the case of youthful offenders (compare Bertrand Marchand, at para. 159). It does so even though this Court has explained that conditional sentences can “achieve the objectives of denunciation and deterrence as effectively as incarceration” with less risk to the offender’s rehabilitative prospects (Proulx, at para. 100; see also para. 99). And it does so even though a noncustodial sentence would be fit for some offenders.
That was dispositive in Bertrand Marchand and Senneville, and it is dispositive here too. When a noncustodial sentence would fit a youthful offender, imposing six months’ incarceration goes too far beyond what is necessary to achieve denunciation and deterrence. It sacrifices young offenders’ rehabilitative prospects to express society’s disapproval: this is why the Court invalidated the minimum penalties in Bertrand Marchand and Senneville. As with the other components of the analysis, there is no reason to depart from those conclusions here.
Like the first two, this component suggests the minimum penalty is grossly disproportionate.
(d) Conclusion: The Minimum Penalty Is Grossly Disproportionate
The minimum penalty at issue sweeps broadly. It captures offenders whose culpability is orders of magnitude below those on the highest end, yet imposes the same minimum term on them both. For those offenders, the effects of the penalty would be devastating. And Parliament need not impose those effects to achieve its valid penological objectives.
To incarcerate a youthful first offender when a non-carceral sentence would otherwise be fit is a gross injustice. It is cruel and unusual punishment, and so violates s. 12 of the Charter. Quebec does not attempt to justify any breach under s. 1 of the Charter. It is therefore necessary to grant a remedy for this unconstitutional law.
III. Remedy
In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, this Court held that when a mandatory minimum sentence is found to unjustifiably breach s. 12, it should be declared entirely of no force and effect under s. 52(1) of the Constitution Act, 1982. Section 52(1) reads: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”
In every case since Ferguson where this Court has found a mandatory minimum sentence to be unconstitutional, it has declared that the law is of no force or effect in its entirety (Nur, at para. 119; Lloyd, at para. 56; Hills, at para. 174; Bertrand Marchand, at para. 174; Senneville, at para. 118). I have applied Ferguson as authoritative in previous cases (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at paras. 190-91, per Karakatsanis J., concurring; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at para. 114).
All parties and interveners before this Court submit that if s. 286.1(2)(a) is unconstitutional, then the appropriate remedy is an immediate, retroactive declaration that the provision is entirely of no force and effect. Ferguson is a binding precedent, and so I would issue such a declaration of invalidity.
On multiple occasions, this Court has noted that Parliament could legislate “safety valves” which would allow for judicial discretion not to impose a mandatory minimum sentence that would be unconstitutionally cruel and unusual to the offender before the court. Such safety values could insulate mandatory minimum sentences from challenge under s. 12 of the Charter (Lloyd, at para. 36; Bertrand Marchand, at para. 108; Senneville, at para. 113; see also Morrison, at para. 194). Under Ferguson, this Court cannot respond to an unconstitutional mandatory minimum sentence by itself reading in such a safety valve, as opposed to a blanket declaration of invalidity. Nonetheless, I query whether the time has come to review Ferguson on the question of remedies for unconstitutional mandatory minimum sentences.
Ferguson rejected an argument that courts should respond to an unconstitutional mandatory minimum sentence with a tailored remedy, permitting the Court to apply the sentence in all cases except where it would violate the Charter on the facts before the court (para. 37).
Ferguson acknowledged that a tailored remedy would preserve the applicability of the law in all circumstances where it could constitutionally apply (paras. 38-39). However, it reasoned that Parliament’s purpose in enacting a mandatory minimum sentence was in part “to remove judicial discretion” (para. 55). Because tailored s. 52(1) remedies are only appropriate where it can be presumed that Parliament would have enacted the tailored scheme instead of the unconstitutional law it did enact, Ferguson reasoned it would be improper for a court to read in judicial discretion to save the constitutionality of a mandatory minimum sentence (paras. 56-57).
In my view, it may be time to revisit Ferguson’s central premises. Mandatory minimum sentences are a “forceful expression” of what Parliament considers to be the minimum proportionate sentence for an offence (Nasogaluak, at para. 45; see also R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 22). Parliament’s goal is therefore to ensure that all sentences meet a particular baseline. It achieves this goal by means of eliminating judicial discretion to go below the baseline. I doubt that Parliament is motivated to reduce judicial discretion as an end in itself. Thus, a tailored remedy that preserves the applicability of mandatory minimum sentences, when constitutional, would not undermine Parliament’s intent, but would rather further its goal of raising the baseline of sentences to a minimum punishment in the greatest number of cases constitutionally possible.
Ferguson requires courts to declare a mandatory minimum sentence entirely of no force and effect, even though it may be perfectly constitutional in many or most of its applications. This costs the rule of law. The rule of law requires that a positive system of laws exist (Re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 749). Constitutionally compliant laws are presumed to serve the public interest (RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 348-49; Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764, at para. 9). The public “has an interest in preserving legislation duly enacted by its democratically elected legislatures, to the extent it is not unconstitutional” (G, at para. 156). The rule of law therefore suffers when courts completely deny the public the benefit of a law’s constitutional applications.
This Court’s jurisprudence on remedies has evolved since Ferguson was decided 18 years ago. More recently, in G and R. v. Albashir, 2021 SCC 48, [2021] 3 S.C.R. 531, this Court comprehensively re-examined the question of s. 52(1) remedies, to articulate “a more principled, coherent, and transparent” framework (G, at para. 81). G distilled four foundational principles on s. 52(1) remedies (at para. 158):
A. Charter rights should be safeguarded through effective remedies.
B. The public has an interest in the constitutional compliance of legislation.
C. The public is entitled to the benefit of legislation.
D. Courts and legislatures play different institutional roles.
The Court concluded in G that “where possible”, courts should grant tailored remedies rather than a blanket declaration of invalidity (paras. 116 and 156). This judicial duty to consider tailored remedies for unconstitutional legislation is mandatory: Albashir affirmed that courts “must exercise their duty to craft coherent, principled s. 52(1) remedies that give effect to the interests and the various foundational principles of the Constitution at stake” (para. 48 (emphasis added); see also Pike, at paras. 100-102).
Thus, our jurisprudence since Ferguson has favoured a broader availability of tailored remedies. It places significant emphasis on the public’s entitlement to the continued benefit of legislation, to the extent it is not unconstitutional.
In sum, I query whether the rationales invoked by Ferguson for rejecting tailored remedies for unconstitutional mandatory minimum sentences necessarily hold today. It may be appropriate, under our Constitution’s remedial framework, for courts to tailor exemptions to a mandatory minimum sentence, instead of striking down the provision entirely and restoring judicial discretion in all cases. One such remedy would be an exemption for individual cases where the punishment would be grossly disproportionate: a judicial safety valve. This remedy might best preserve Parliament’s desire — and the benefit to the public — for mandatory minimum sentences in every case, except where it would be unconstitutional.
I recognize that allowing tailored remedies may in practice preclude litigation using reasonable hypotheticals as a basis to challenge mandatory minimum sentences. But reasonable hypotheticals are only a means to the end of promoting constitutionalism and the rule of law. Tailored remedies can similarly protect these important values, without also denying the public the benefit of a mandatory minimum sentence’s constitutional applications. The bottom line is that no one will be subject to an unconstitutional law.
For these reasons, it may be appropriate to revisit Ferguson in a future case, where the issue is squarely raised and fully explored by the parties.
Ferguson remains binding in this case. I would apply our precedent here, and declare that the mandatory minimum sentence in s. 286.1(2)(a) is entirely of no force or effect.
The government has not argued for a suspended declaration, so this order must be given immediate effect (G, at para. 139). And I see no “rare and exceptional circumstanc[e]” to rebut the presumption of a retroactive declaration of invalidity (Albashir, at para. 46).
IV. Conclusion
For these reasons, I would dismiss the appeal and uphold the Court of Appeal’s order.
Footnotes
- [1] For the sake of readability, we will refer only to the offence of obtaining sexual services.
- [2] We are aware that the dismissal of the motion for a stay of proceedings for entrapment was also appealed to the Court of Appeal. However, since the scope of this case is limited to the constitutionality of the sentence provided for in s. 286.1(2)(a), we will not be referring to this.
- [3] A mere friendship is not sufficient in itself to find abuse of a position of trust as an aggravating factor. Each case turns on its own facts, and abuse of a position of trust must be established on the facts of the case (see R. v. Audet, [1996] 2 S.C.R. 171, at pp. 193-95). In the case of this hypothetical scenario, and in the absence of more details, we would infer the presence of this aggravating factor, which we consider more likely than not based on the very limited facts before us (see Bertrand Marchand, at para. 82; Pierre v. R., 2023 QCCA 84, at para. 35). We note that in an actual case, if this fact were disputed, the prosecution would have to establish it by proof beyond a reasonable doubt (s. 724(3)(e) Cr. C.).
- [4] To avoid distorting the analysis of the range, we are taking into account only decisions rendered after the mandatory minimum sentence was declared invalid by the Court of Appeal and decisions in which the sentencing court itself held that the minimum sentence was of no force or effect or had no impact on the determination of a fit and appropriate sentence.
- [5] Now called “child sexual abuse and exploitation material”.
- [6] The Criminal Code defines conditional sentences as a form of imprisonment (s. 742.1). The Court has explained that this suggests conditional sentences should be interpreted as more punitive than probation, and so should “generally include punitive conditions that are restrictive of the offender’s liberty” (Proulx, at para. 36).
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- Mentor v. R. 2022 QCCA 1270 paras 96-100 ¶ 79
- Lemieux v. R. 2023 QCCA 480 paras 51-59 ¶ 79
- Senneville Senneville, at para. 95 para 95 ¶ 83
- Fournier v. R. 2012 QCCA 1330 para 42 ¶ 83
- R. v. Nahanee 2022 SCC 37 para 19 ¶ 83
- Siciliano v. R. 2025 QCCA 335 para 31 ¶ 87
- Courchesne v. R. 2024 QCCA 960 paras 49-51 ¶ 87
- Senneville Senneville, at para. 96 para 96 ¶ 89
- R. v. Huacho Cruz 2024 QCCQ 2826 ¶ 90
- R. v. Bernard 2022 QCCQ 42 ¶ 90
- Tremblay v. R. 2024 QCCQ 1720 ¶ 90
- 2026 QCCA 221 2026 QCCA 221 ¶ 90
- R. v. Zacharakis 2025 QCCQ 2842 ¶ 90
- 2025 QCCA 916 2025 QCCA 916 ¶ 90
- R. v. Lapointe 2025 QCCQ 2702 ¶ 90
- Senneville Senneville, at para. 41 para 41 ¶ 95
- Senneville Senneville, at para. 102 para 102 ¶ 96
- Senneville Senneville, at para. 106 para 106 ¶ 102
- Senneville Senneville, at para. 99 para 99 ¶ 103
- Senneville Senneville, at para. 34 para 34 ¶ 105
- Frank v. Canada (Attorney General) 2019 SCC 1 para 42 ¶ 111
- R. v. Ferguson 2008 SCC 6 para 37, paras 38-39, para 55, paras 56-57 ¶ 115, ¶ 159, ¶ 160, ¶ 161, ¶ 162, ¶ 163, ¶ 164, ¶ 165, ¶ 166, ¶ 167, ¶ 169, ¶ 170, ¶ 172, ¶ 173
- R. v. McGregor 2023 SCC 4 para 23 ¶ 115
- Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) 23621-1995-05-04 para 6 ¶ 115
- R.F. R.F., at para. 48 para 48 ¶ 123
- R. v. Alvi 2018 ABPC 136 ¶ 124
- R. v. Pike 2024 ONCA 608 paras 100-102, para 147 ¶ 140, ¶ 168
- R. v. Habib 2024 ONCA 830 para 31, para 34 ¶ 150, ¶ 151
- R. v. Desir 2021 ONCA 486 para 32 ¶ 150
- R. v. Morrison 2019 SCC 15 paras 190-91, para 194 ¶ 160, ¶ 162
- Ontario (Attorney General) v. G 2020 SCC 38 para 114 ¶ 160
- R. v. Wust 2000 SCC 18 para 22 ¶ 165
- Re Manitoba Language Rights 18606-1985-06-13 p 749 ¶ 166
- RJR -- MacDonald Inc. v. Canada (Attorney General) 23460, 23490-1994-03-03 pp 348-49 ¶ 166
- Harper v. Canada (Attorney General) 2000 SCC 57 para 9 ¶ 166
- G G, at para. 156 para 156 ¶ 166
- R. v. Albashir 2021 SCC 48 para 46, para 158 ¶ 167, ¶ 168, ¶ 174
- G G, at para. 81 para 81 ¶ 167
- G G, at para. 139 para 139 ¶ 174
Statutes and regulations cited
-
Criminal Code ¶ 6, ¶ 14, ¶ 18, ¶ 35, ¶ 38, ¶ 39, ¶ 40, ¶ 42, ¶ 43, ¶ 44, ¶ 48, ¶ 54, ¶ 55, ¶ 60, ¶ 72, ¶ 73, ¶ 75, ¶ 76, ¶ 79, ¶ 86, ¶ 87, ¶ 90, ¶ 93, ¶ 94, ¶ 110, ¶ 116, ¶ 120, ¶ 121, ¶ 129, ¶ 142
- s. 286.1(2)(a) ¶ 6, ¶ 18, ¶ 54, ¶ 110, ¶ 116, ¶ 120, ¶ 121, ¶ 126, ¶ 161, ¶ 173
- s. 286.1(2) ¶ 14, ¶ 35, ¶ 40, ¶ 42, ¶ 48, ¶ 55, ¶ 72, ¶ 128
- s. 212(4) ¶ 38, ¶ 40, ¶ 48
- s. 9 ¶ 38
- s. 10.1(2) ¶ 39
- s. 13 ¶ 40
- s. 20 ¶ 40
- s. 286.1(2)(b) ¶ 43
- s. 718 ¶ 60, ¶ 75
- s. 718.1 ¶ 60, ¶ 76
- s. 718(a) ¶ 75
- s. 718(b) ¶ 75
- s. 718(c) ¶ 75
- s. 718(d) ¶ 75
- s. 718(e) ¶ 75
- s. 718(f) ¶ 75
- s. 718.2 ¶ 76
- s. 718.2(a)(ii.1) ¶ 79
- s. 718.2(a)(iii) ¶ 79
- s. 718.2(a)(iii.1) ¶ 79
- s. 718.01 ¶ 86, ¶ 87, ¶ 129
- s. 718.04 ¶ 86
- s. 718.2(b) ¶ 90
- s. 172.1(2) ¶ 93
- s. 163.1(4)(a) ¶ 93
- (4.1) ¶ 93
- s. 151 ¶ 94
- s. 742.1(b) ¶ 142
- s. 286.1 ¶ 153
-
- Article 34(b) ¶ 39
-
Unresolved citations