In a recent decision, the Court of Appeal for Alberta upheld the constitutionality of a mandatory minimum sentence provision in section 153(1.1)(a) of Canada’s Criminal Code. The decision is called R v EJB, 2018 ABCA 239. The mandatory minimum in section 153(1.1)(a) compels a sentencing judge to impose a term of imprisonment of at least one year for any person convicted of the offence of sexual exploitation where the Crown prosecutor elects to proceed with the prosecution by indictment.
The sexual exploitation offence captures a broad range of conduct. The offence criminalizes sexual contact between a person aged 16-17 and a person who is in a position of trust or authority towards that young person, or a person in a relationship of dependency towards the young person, or a person who is in an exploitative relationship with the young person. Relationships of dependency and exploitation tend to be foreseeable. However, a position of trust or authority can be constructed from the dynamics of the relationship between the 2 individuals and can therefore criminalize a range of conduct which many Canadians may find immoral but which arguably should hardly be considered criminal, much less punishable by a term of one year of imprisonment. In this vein, it should be noted that the criminal law regards 16 year olds as capable of consenting to sexual activity.
Because the offence criminalizes a broad range of conduct, those found guilty of the offence will vary substantially in their moral blameworthiness and degree of responsibility, key considerations for sentencing. Nonetheless, the mandatory minimum requires a one-year term of imprisonment regardless of the degree of responsibility or moral blameworthiness.
Mandatory minimums place a great deal of power in the hands of Crown prosecutors, who alone have the choice of whether to proceed with a charge, and if so, whether to proceed summarily (with a lesser minimum punishment) or to proceed by indictment (which carries with it a higher minimum punishment). The prospect of a mandatory one-year term of incarceration, regardless of the circumstances of the offence, serves as a powerful incentive for accused persons to plead guilty. In this sense, mandatory minimum sentences have the potential to be coercive tools that discourage presumptively innocent accused persons from exercising their right to a day in court.
Constitutional challenges to mandatory minimums are commonly framed as violations of the right to be free from cruel and unusual punishment under section 12 of the Canadian Charter of Rights and Freedoms. In R v RJB, the Crown appealed from the sentencing judge’s decision that found the mandatory minimum to be grossly disproportionate, the legal standard for whether a mandatory minimum amounts to cruel and unusual punishment under the Charter.
Two decisions from Canadian courts outside of Alberta have concluded that the mandatory minimum in section 153(1.1)(a) constituted cruel and unusual punishment that violates section 12 of the Charter. Those cases are R v Hood, 2018 NSCA 18 from the Nova Scotia Court of Appeal and R v Cristoferi-Paolucci, 2017 ONSC 4246 from the Ontario Superior Court of Justice. In light of the Court of Appeal for Alberta’s decision in R v EJB, there is now a conflict between the courts of appeal and superior courts across the provinces on a constitutional question which requires a unified answer. Hopefully, the Supreme Court of Canada will hear an appeal from R v EJB and further the overwhelming judicial trend in recent years of striking down mandatory minimums as unconstitutional by reversing the Court of Appeal for Alberta’s decision.