Supreme Court upholds six-month minimum for obtaining sexual services from minors

The Supreme Court of Canada has upheld the six-month mandatory minimum sentence under section 286.1(2)(a) of the Criminal Code for a first offence of obtaining sexual services from a person under 18, or communicating for that purpose, in a divided decision over the constitutional limits of mandatory imprisonment.

In Quebec (Attorney General) v. Denis, 2026 SCC 25, released July 10, seven judges allowed Quebec’s appeal and set aside the Quebec Court of Appeal’s declaration that the minimum violated the Charter’s protection against cruel and unusual punishment. Justices Suzanne Côté and Michelle O’Bonsawin wrote the majority reasons. Justice Andromache Karakatsanis dissented, joined by Justice Mary Moreau.

The disagreement did not concern whether six months was an appropriate sentence for Mario Denis himself. The Quebec Court of Appeal had found that it was. The constitutional dispute instead centred on how the minimum would apply to a reasonably foreseeable young offender whose circumstances differed from his.

An undercover operation and a hypothetical offender

Denis was convicted after responding to a fictitious advertisement during a Laval police operation in 2018. An undercover officer repeatedly told him that the person he was arranging to meet was 16. He went to the meeting place, paid the officer and was arrested. These were dealings with police in an undercover operation, not an actual sexual encounter with a child.

The trial judge imposed six months in prison. Although the Court of Appeal rejected his other challenges, it struck down the minimum based on a hypothetical case involving an 18-year-old who offered money to a friend under 18 for sexual activity. The Supreme Court appeal was confined to the minimum’s constitutionality, not Denis’s conviction or entrapment challenge.

The majority accepted that the basic hypothetical was reasonably foreseeable. But it removed the young man’s purported romantic feelings from the analysis, saying those feelings could not reduce the seriousness of the offence or his responsibility. The judges also cautioned against describing children subjected to sexual exploitation as “sex workers,” language they said obscures the exploitative relationship.

Why the majority found the minimum constitutional

A mandatory minimum does not breach section 12 of the Charter simply because it is excessive or disproportionate. Courts first determine a fit sentence without the minimum, then ask whether the required punishment is grossly disproportionate. The analysis must consider the offence’s scope, the punishment’s effects on the offender and the balance among sentencing objectives.

For the hypothetical 18-year-old, the majority considered five months in prison a fit sentence. His youth and lack of a criminal record reduced his responsibility. But the majority emphasized the seriousness of deliberately seeking to exploit a child sexually for payment, even where the offence remains at the communication stage.

The majority inferred an abuse of trust from the particular hypothetical friendship. It expressly cautioned, however, that friendship alone does not establish that aggravating factor. In an actual case, a disputed aggravating fact would have to be proved by the prosecution beyond a reasonable doubt.

Denunciation and deterrence must receive priority for offences involving abuse of children, the majority said, without eliminating rehabilitation or the requirement of proportionality. It concluded that a short prison term was justified for the hypothetical offender despite his youth.

Against that five-month benchmark, the mandatory sixth month did not meet the demanding constitutional threshold. The majority acknowledged the particular harms prison can cause young people but reasoned that this offender would face incarceration even without the minimum. It found that the additional month would not cause substantially greater harm and that the minimum did not entirely exclude rehabilitation.

The majority also distinguished earlier decisions striking down minimum sentences for child luring and for possessing or accessing child sexual abuse material. In its view, the offence before it necessarily added an element of economic exploitation and captured a narrower range of highly blameworthy conduct.

Dissent focuses on a young offender who backs out

Karakatsanis examined a different hypothetical: a young first offender who initially seeks an adult, agrees when offered an encounter with someone under 18, then abandons the arrangement before meeting. She considered that scenario reasonably foreseeable, noting that police in the operation underlying the case had encountered a person who arranged a transaction and then backed out, although they did not charge him.

The dissent agreed that sexual exploitation of children is inherently harmful and that denunciation and deterrence receive priority. Its disagreement was about the degree of responsibility and the punishment required at the lower end of the offence’s reach. Youth, impulsivity and abandoning the plan could reduce blameworthiness without excusing the conduct.

For that hypothetical offender, Karakatsanis considered a six-month conditional sentence with strict terms, served in the community, appropriate. She stressed the profound difference between a community sentence and incarceration, including prison’s effects on a young person’s education, employment and prospects for rehabilitation.

On that analysis, mandatory imprisonment was grossly disproportionate. The dissent would have upheld the declaration invalidating the minimum. Quebec had not sought to justify a section 12 breach under section 1 of the Charter.

The majority rejected the dissent’s approach to the hypothetical, emphasizing the claimant’s burden and the importance of adversarial testing. It also said the result would be unchanged even on the dissent’s scenario: it would consider four months in prison appropriate, and the difference from six months still would not establish gross disproportionality. Those four- and five-month figures were hypothetical benchmarks, not replacement sentences imposed on Denis.

No new exemption from mandatory sentences

The dissent also raised a question for a future case: whether courts should reconsider the precedent requiring an unconstitutional mandatory minimum to be struck down rather than preserved with individual exemptions. Karakatsanis nevertheless treated that precedent, R. v. Ferguson, as binding and would have applied it here.

The majority declined to take a position on Ferguson’s soundness because the issue was not before the Court. The decision therefore created no judicial exemption or safety valve. Its operative result was to set aside the declaration of invalidity and leave the six-month minimum in place.