Sentencing of accused convicted after trial under s 286.1(2) CC (communication for the purposes of obtaining, for consideration, sexual services of a minor). Accused was caught through a Calgary Police sting operation, where the online ad indicated the (fictitious) sex trade worker was 18 years old, but subsequent communications made it clear she was 17. Accused was a 20-year old university student with no criminal record. Issue of whether 6-month mandatory minimum offended s 12 of the Charter.

Held: minimum unconstitutional; 90 days jail plus probation.

Predecessor to s 286.1(2) was found to be unconstitutional in JLM, 2017 BCCA 258. Similarly, s 286.1(2) also infringes s 12 of the Charter. Mandatory minimum would be grossly disproportionate in the accused’s situation, as well as in other “reasonable hypothetical” circumstances, and was not saved by s 1. A sentence of 90 days jail, intermittent, plus 18 months probation was fit in this case.

S. Aujla / E. Funk – Defence Counsel