Éric Bernier

The Crown appealed the fitness of the sentence imposed on the first respondent for child luring under s. 172.1(1)(b) of the Criminal Code, and both respondents challenged the constitutionality of the mandatory minimum sentences in s. 172.1(2)(a) and (b) as cruel and unusual punishment under s. 12 of the Charter.

The majority held that the sentencing judge committed errors in principle in imposing a five-month concurrent sentence for luring, and increased the sentence to 12 months' imprisonment to be served consecutively.

The mandatory minimum sentences of one year (indictable) and six months (summary) for child luring were found to be grossly disproportionate when applied to reasonably foreseeable offenders and declared of no force or effect under s. 52 of the Constitution Act, 1982.

The dissent would have upheld the mandatory minimums as constitutional.

The Crown appealed a Quebec Court of Appeal decision that reduced a fine in lieu of forfeiture under s. 462.37(3) of the Criminal Code from $10,000,000 to approximately $171,397.57, on the basis that courts have discretion to limit the fine to the offender's profit from criminal activity.

The Supreme Court held that courts have no such discretion: the fine in lieu must equal the full value of the property that constituted proceeds of crime in the offender's possession or under his control.

The Court clarified that while apportionment between co-accused is permissible to avoid double recovery, the offender bears the burden of establishing its appropriateness, and the Crown has a duty to mitigate double recovery risk on its own initiative where possible.

On the facts, the respondent failed to meet his burden and the $10,000,000 fine (less the restitution order of $828,602.43) was restored.

The appellant was acquitted of dangerous driving causing bodily harm at trial but convicted of the included offence of dangerous driving.

The Quebec Court of Appeal set aside the acquittal and entered a conviction for dangerous driving causing bodily harm, finding the trial judge had applied an erroneous legal standard for causation.

The Supreme Court of Canada affirmed the Court of Appeal's judgment, holding that the trial judge erred in law in analyzing causation and that the accused's dangerous driving significantly contributed to the bodily harm suffered by the victim.