The Ontario Court of Appeal, in the decision of R. v. Morrison, has recently upheld a decision of the trial judge to strike down the mandatory minimum sentence of one year in jail for the offence of child luring.
After finding Morrison guilty of child luring, the trial judge addressed Morrison’s constitutional challenge to the one-year mandatory minimum sentence in s. 172.1(2) of the Code. He concluded that the minimum was contrary to s. 12 of the Charter because it was grossly disproportionate in relation to Morrison’s circumstances, finding it unnecessary to consider hypothetical offenders.
In determining what would be an appropriate sentence for Morrison, he stated that, because Morrison was found to be unreasonably indifferent to the age of the interlocutor with whom he was communicating, his conduct was less blameworthy than an offender who enters into communications with an interlocutor who he knows or actively hopes is underage. Morrison was guilty of continuing a dialogue without taking reasonable steps to ensure the he was not communicating with a child. The fact that Morrison proposed a face-to-face encounter was an aggravating factor, but it had limited weight because there was no indication of what, if any, sexual offence might have been facilitated by the meeting. There was no actual harm, but the sexual communications exchanged by Morrison could have had the effect of damaging the emotional and sexual well-being of a 14-year-old female had he been communicating with her instead of a police officer.
The trial judge found that Morrison had an unblemished character, with no prior criminal convictions, and was a productive member of society who held seasonal employment at as a groundskeeper at a local golf course. He had been in a common law relationship for 15 years and was a stepfather and step grandfather to his spouse’s offspring. He did not suffer from a mental disability or depression. He was old enough to appreciate the need to take reasonable care to ensure that sexually explicit communications are not conducted with someone who might be underage.
The trial judge held that, in the absence of the mandatory minimum, he would have imposed a sentence of four months imprisonment, followed by a period of probation, in order to achieve the goals of general and specific deterrence, denunciation and the need to separate the offender from the community. He held that the one-year mandatory minimum was grossly disproportionate to this benchmark, citing Morrison’s comparatively lower moral blameworthiness, his previous good character and that fact that, being in his late sixties, a longer term of imprisonment would be harsh.
The Court of Appeal agreed with the trial judge and held that that Canadians would find it abhorrent and intolerable to their sense of decency that offenders whose blameworthiness comes close to negligence or whose comparative blameworthiness is similarly less serious would be sentenced to a minimum of one year in jail.