Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

Quebec (Attorney General) v. Denis

Case summary

The Supreme Court concludes that a mandatory minimum sentence of six months’ imprisonment for obtaining sexual services from a minor is constitutional.

This case is about the constitutionality of a mandatory minimum sentence of six months’ imprisonment for obtaining, in exchange for money, sexual services from a person under the age of 18. More specifically, the question was whether this sentence violated section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

When a court convicts a person of a crime, it must impose a fit and proportionate sentence on the person. The Criminal Code provides for certain mandatory minimum sentences for specific offences. However, these sentences can be challenged if their consequences are excessively severe. In some cases, an accused person can raise this argument based not only on their own situation, but also on the scenario of an offender in a comparable situation. This situation must be reasonably foreseeable and represents a hypothetical but realistic scenario that could occur in a context similar to the situation of the accused person. Courts use it to assess the constitutional validity of a minimum sentence.

In 2018, the Police Service of the city of Laval launched a police operation to combat the commercial sexual exploitation of children. The police posted fake ads on websites offering escort services. Mr. Denis replied to one of these ads and communicated with an undercover officer. The officer told him that the escort was 16 years old. Mr. Denis went to the agreed location and paid the officer. He was arrested and, following a trial, he was convicted of communicating with someone for the purpose of obtaining sexual services from a minor in exchange for money.

At the time of sentencing, Mr. Denis challenged the constitutionality of the minimum sentence of six months’ imprisonment. The judge rejected his challenge and imposed that sentence on him. The Court of Appeal concluded that the minimum sentence was a fit sentence for Mr. Denis. However, it concluded that it would be grossly disproportionate in the following reasonably foreseeable scenario: an 18-year-old man who agrees to have sex in exchange for money with a minor female friend whom he knows offers sexual services, and for whom he has romantic feelings. The Court of Appeal therefore declared the minimum sentence unconstitutional. The Crown appealed to the Supreme Court of Canada.

The Supreme Court has allowed the appeal.

Compared with a fit and proportionate sentence of five months in the fictitious scenario, a six-month mandatory minimum sentence is not grossly disproportionate.

Writing for the majority, Justices Côté and O’Bonsawin began by explaining that the crime of obtaining sexual services from a minor involves forms of exploitation and perpetuates existing inequalities. It violates the fundamental rights of children, including their personal autonomy, their bodily and sexual integrity, their dignity and their equality.

Justices Côté and O’Bonsawin noted that this offence captures only people whose conduct is inherently wrongful and whose moral blameworthiness is necessarily high. The absence of a specific victim when there is a police sting operation does not lessen the offender’s moral blameworthiness. Sexual offences committed against children are never “victimless” crimes, because the people who seek such services feed the market that profits from the exploitation of children.

Justices Côté and O’Bonsawin then considered the constitutionality of the minimum sentence. They used the fictitious scenario discussed by the Court of Appeal, but they removed from it the offender’s romantic feelings, which they considered irrelevant in assessing the gravity of the offence and moral blameworthiness. Applying the general principles of sentencing, they decided that a sentence of five months’ imprisonment would be fit and proportionate in the fictious scenario. However, given the difference of one month between the five-month sentence and the six-month mandatory minimum sentence, the mandatory minimum sentence imposed on Mr. Denis was neither excessively severe, nor cruel and unusual. The minimum sentence imposed on him therefore does not violate section 12 of the Charter.