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Constitutional Law

Alberta Court Strikes Down Mandatory Minimum Sentence for Cruel and Unusual Punishment

By February 11, 2020No Comments

Alberta Court of Queen’s Bench recently struck down a mandatory minimum sentence (MMS). In Charboneau, the accused was convicted under 286.1(2) of the Criminal Code for communicating with a minor for the purpose of obtaining sexual services for consideration. Justice Akerl found that the mandatory minimum did not impact Mr. Charboneau, who deserved a nine-month sentence. However, the Judge found that the sentence could be unconstitutional in other cases.

What is a Mandatory Minimum Sentence?

Mandatory minimums are minimum sentence lengths written into law. An MMS removes the ability to consider an appropriate sentence. Judges consider various factors when sentencing a person. For example, mitigating factors weigh in favour of a lighter sentence. Aggravating factors suggest a stricter penalty. Offender factors include age, employment, criminal record, and remorse. Mandatory minimums prevent judges from considering these factors.Mandatory minimums are not new to Canada. For example, an MMS for first-degree murder has long existed. However, since 2006 the number of mandatory minimums has increased. Many new mandatory minimums are for non-violent offences. For example, there are nearly 100 MMS for drug-related offences. More information on mandatory minimums is available here.

Charboneau: The Facts

Richard Charboneau was convicted under 286.1(2) for communicating with a minor for the purpose of obtaining sexual services. The complainant, CM, alleged that Mr. Charboneau made sexual propositions to her, knowing she was underage. CM testified that the accused approached her on a picnic table in a school park. Mr. Charboneau approached CM, striking up a conversation with her. The complainant testified that the initial conversation was normal. The pair discussed the weather, her age, grade, and school. CM stated that she told Charboneau that she was 14 years old and in Grade 9. The complainant asserts that the conversation soon became sexual. She claims that Charboneau first asked her about her bra size. Charboneau requested that she expose her breasts and go with him to “have some fun.” CM claimed the accused said he had money and was willing to pay her. Before leaving Charboneau asked if he could think about her at home. He also asked if she was going to think about him. Charboneau ended with, “Oh, what can I show you that will get you to show me something.” Before trial, the accused filed an application seeking to have s 286.1(2)(a) of the Code declared unconstitutional. Defence counsel argued that a six-month minimum sentence infringed s 12 of the Charter. Section 12 of the Charter protects against cruel and unusual punishment. At the time of sentencing, Charboneau was married with two young children. Charboneau worked nearly two decades with the Canadian Armed Forces. During sentencing, Charboneau presented several support letters from military personnel. The letters vouched for Charboneau’s character and confidence that he could be rehabilitated. The Crown argued for nine-months in jail and two years probation. In contrast, the defence suggested 60 to 90 days in jail and probation.

What is the Problem with Mandatory Minimums?

There are two primary problems with mandatory minimums. First mandatory minimums hamper judicial discretion. Judges are unable to consider the circumstances of the crime and the offender. Even if special circumstances exist that call for a lower sentence, judges must give the MMS. A second criticism of mandatory minimums is that they provide little benefit. Studies show that an MMS does not deter or reduce crime. Mandatory sentences make the public feel safe. Politicians who make the public feel safe win votes. However, there is no proof that an MMS increases public safety. The Supreme Court of Canada has struck down two mandatory minimum sentences. In R v Lloyd, for example, the Court found a one-year MMS for possession for the purpose of trafficking unconstitutional.

When is an MMS Cruel and Unusual Punishment?

A mandatory minimum sentence is cruel and unusual if it is grossly unbalanced with a fair sentence. When assessing an MMS, courts explore hypothetical situations where the sentence would apply. The hypothetical situation must be reasonable. However, a judge can consider situations even if the Crown is unlikely to prosecute. An unjust mandatory minimum cannot be saved by a Crown’s decision not to prosecute.

In his Charter application, Charboneau proposed three hypothetical situations.

  1. Paying a person under the age of 18 for a kiss;
  2. A naïve 18-year-old communicates with a sophisticated 17-year old. The younger individual rebuffs the advances and no further conduct arises;
  3. An individual becomes nervous and abandons their attempt to obtain sexual service after already communicating the offer.

Justice Akerl found Charboneau’s second hypothetical compelling. This second hypothetical is used to assess the fairness of the MMS.

Test for Assessing Mandatory Minimums

The first step in assessing a mandatory minimum is to determine a fit sentence in the hypothetical case. An appropriate sentence for the second hypothetical would range from conditional discharge to a suspended sentence and probation. In deciding the sentence, Justice Akerl considered the offender’s youth and no prior record. The Judge also considered the low level of seriousness. Justice Akerl found a six-month sentence would be excessive. However, an MMS has to be more than excessive. The minimum sentence must be so disproportionate that it offends societal standards of decency. Justice Akerl found that the minimum sentence was so much harsher than the hypothetical sentence that it would offend societal decency. As the sentence could lead to cruel and unusual punishment, it was struck down. Unlike the hypothetical, Justice Akerl found Charboneau deserved more than the minimum sentence. This sentence suggests that the aggravating factors affected sentencing. Justice Akerl identified several aggravating factors. The Judge characterized Charboneau’s conduct as deliberate and escalating. Other factors included the age difference and the impact on the victim.


Alberta Courts have made an important change to sentencing. Charboneau did not benefit from the decision that the MMS was unconstitutional. However, future accused charged with the same offence will benefit from this decision. The Alberta Court of Queen’s Bench binds Alberta provincial courts. When sentencing 286 offences, Alberta judges will be able to consider the circumstances of the case and the offender. These factors will help judges determine the most fitting sentence, considering all the circumstances.

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