⚖️ Mandatory discretion

To: Hearsay Readers

TODAY’S DOCKET

  • SCC strikes down mandatory minimum sentences

  • NBA star suing over alleged home fraud

  • Alberta giving cabinet more control over public health

  • Trial goes dark over secret info

CRIMINAL

Child luring punishments struck down

Prison cells

Down goes another mandatory minimum sentence. Today, the Supreme Court said the minimum punishments for child luring are unconstitutional because they are cruel and unusual. That’s not very surprising — the Court has wiped out nearly every minimum sentence it’s dealt with since 2015.

What happened: Luring is when someone communicates with a minor to commit a sexual offence. The Crown can choose to treat the offence as an indictable offence or a summary conviction offence. Before the punishments were struck down, the more serious indictable offence carried a minimum sentence of one year in jail. The minimum sentence for summary conviction was six months in jail.

The Court dealt with two separate cases on appeal. One man was convicted of the indictable offence and another of the summary conviction offence. Both argued the minimum punishments violated section 12 of the Charter, which protects against cruel and unusual punishment.

On appeal: The Court said there’s potential for the minimum punishments to be grossly disproportionate — not for the men who appealed, but in other hypothetical situations. The Court referred to two possible scenarios:

  1. A young high school teacher with bipolar disorder messages one of her students while feeling manic. They meet up the same day and engage in sexual touching.

  2. An 18-year-old messages his 17-year-old girlfriend so that he can get an explicit photo of her and share it with his friend. He was communicating to obtain child pornography and share it, which counts as luring.

The Court said the one-year minimum would be grossly disproportionate in the first scenario, and the six-month minimum would be grossly disproportionate in the second. That’s assuming the offenders have no criminal record, plead guilty, and express remorse.

Since the mandatory minimums can lead to grossly disproportionate results in reasonable hypothetical situations, the Court struck them down.

Only hypothetical: It wasn’t all good news for one of the men involved in the case. Even without the mandatory minimum, the Court said he deserved a one-year sentence for grooming a 13-year-old victim.

Decision report card:

😢◻️◻️◻️◻️ Factual interest

◻️😐◻️◻️◻️ Legal interest

◻️◻️◻️◻️🔓 Discretionary sentencing

HEARSAY ROUNDUP

Canadiana

🏀 NBA star Shai Gilgeous-Alexander wants to unwind his purchase of an $8.4M home in Burlington. He says the seller fraudulently misrepresented the fact the home was previously occupied by “Crypto King” Aiden Pleterski. Pleterski allegedly ran a crypto-based Ponzi scheme and his investors are pretty mad at him — mad enough to kidnap him and hold him for ransom. And that’s not a great vibe for your new home. Gilgeous-Alexander says a threatening stranger came looking for Pleterski shortly after he moved in.

😷 Alberta is amending its Public Health Act so members of cabinet have the final say during public health emergencies. It’s a response to a court decision released earlier this year, which held that Alberta’s chief medical officer of health is the only one who can issue public health orders under the Act. The decision invalidated gathering restrictions Alberta implemented in response to COVID-19, because cabinet was calling the shots. The alternative option was to keep the legislation and let the doctor make the decisions next time — but presumably that option was quickly dismissed as nonsense.

🕵️‍♂️ Ex-RCMP Director Cameron Ortis is currently on trial for selling state secrets. When he opened his defence yesterday, his lawyer said Ortis was acting on secret information he received from a foreign agency. The details of his alleged inter-jurisdictional top secret mission aren’t being made public — at least for now. Ortis is giving his evidence in a closed courtroom so that potentially classified information can be vetted from the record.

Beyond the border

🏛 A jury convicted Sam Bankman-Fried in just over four hours yesterday, including the time they took to eat dinner. He’s guilty of seven offences, which carry a total maximum punishment of 110 years. His sentencing is scheduled for March. It’ll be a busy month for SBF, who also happens to be facing a second trial related to allegations of foreign bribery and illegal political donations.