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IF A THE MINIMUM MANDATORY SENTENCE PRESCRIBED FOR WHEN THE CROWN PROCEEDS BY WAY OF INDICTMENT VIOLATES SECTION 12 OF THE CHARTER, THEN THE MINIMUM MANDATORY SENTENCE PRESCRIBED FOR WHEN THE CROWN PROCEEDS BY WAY OF A SUMMARY CONVICTION WILL DO SO AS WELL.

R. c. H.V., 2022 QCCA 16, January 12, 2022 [translation]

Application for leave to appeal from a sentence. Granted. Appeal from the sentence and from a declaration of constitutional inoperability of s. 172.1(2)(b) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr.C.). Dismissed.

Following the respondent’s guilty plea on a summary conviction charge of luring a child, the trial judge declared the mandatory minimum sentence under section 172.1(2)(b) Cr.C. to be inoperative against him, suspended the sentence, and ordered 2 years of probation. The Superior Court, sitting on appeal, the Superior Court ruled that the mandatory minimum sentence was constitutionally invalid and substituted 90 days of intermittent imprisonment with 3 years of probation for the sentence imposed at trial. The appellants submit that the sentence is demonstrably unfit and that the mandatory minimum sentence is constitutional. They do not argue that the sentence is saved by s. 1 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I).

Although the severity of a sentence does not raise a question of law when taken alone, it is in this case an integral and essential element of the constitutional analysis. Analysis of that element, however, invites the application of the standard of palpable and overriding error, which calls for deference, unless the sentence is demonstrably unfit or calculated on the basis of an error in principle.

The appellants erroneously argue that the offence of luring a child is punishable by a range of 12 to 24 months, which argument, at least with respect to summary convictions, finds little support in the case law. The offence covers a wide range of conduct. This is what prompted the Supreme Court to state in R. v. Morrison (S.C. Can., 2019-03-15), 2019 SCC 15, SOQUIJ AZ-51577366, 2019EXP-778, [2019] 2 S.C.R. 3, in obiter, that the mandatory minimum sentence for luring a child is vulnerable to constitutional challenge. Furthermore, the ranges are merely guidelines, and the choice to deviate from them is discretionary. Alone, the choice to do so does not justify appellate intervention. As stated in R. v. Friesen (S.C. Can., 2019-10-16), 2020 SCC 9, SOQUIJ AZ-51680674, 2020EXP-902, notwithstanding the importance of denunciation and deterrence, rehabilitation and the low likelihood of recidivism may in some cases, like the one before us, weigh in favour of a more lenient sentence. There is no reviewable error in the sentencing judge’s calculation of the appropriate sentence.

Since the minimum sentence for luring a child prosecuted by way of indictment was declared invalid in R. c. Bertrand Marchand (CA, 2021-08-24), 2021 QCCA 1285, SOQUIJ AZ-51790428, 2021EXP-2205, the possibility that an offender may have to serve a 6-month sentence when the offence is prosecuted summarily, whereas another offender prosecuted by way of indictment may receive a lesser sentence, could potentially lead to unfair and inconsistent situations. Although the mode of prosecution falls within the Crown’s discretion, this state of affairs contradicts the notion of consistency with the principles of parity and individualization of sentences. It may also have collateral consequences entirely unrelated to the circumstances of the commission of offences, for example, on the right of an accused to appeal a deportation order in an immigration context. Where there is no reviewable error, there is no reason to intervene.