Luring, minimum sentences and constitutionality in Canada: R v Bertrand Marchand, 2023 SCC 26

The Canadian offence of luring has been analysed in R v Bertrand Marchand, 2023 SCC 26 (3 November 2023). See s 172.1 of the Criminal Code, reproduced at [9] of the joint judgment. Additionally, the mandatory minium sentences which the legislature had applied to it were held to be unconstitutional as they were in breach of s 12 of the Canadian Charter of Rights and Freedoms.

In deciding the constitutional point, the Court applied the method it used in its decision in R v Hills, 2023 SCC 2 (noted here on 31 January 2023). The essential fault in the legislation was that it applied minimum sentences to conduct that was only remotely related to the heart of the offence [108] so that when reasonably foreseeable scenarios that would come within the defintion of the offence were considered the result would be sentences that were so excessive as to outrage standards of decency [109].

In essence, the luring offences defined in s 172 involve using telecommunication to communicate with persons who are or who are believed to be under ages specified in three categories, for the purpose of facilitating the commission of offences with respect to those people as specified for each age category. These are what can be called grooming offences although without any need for sustained contact [13].

Comparable offences are in s 131AB of the Crimes Act 1961 (NZ), and they carry a maximum, but not a minimum, sentence.

The discussion in Bertrand Marchand of the wrongfulness of luring ([34]ff) will be relevant for sentencing purposes in similar jurisdictions. Both gravity of the offending and the moral blameworthiness of the offender - an assessment of the personal aggravating and mitigating features - are relevant ([71]ff). In the absence of direct proof of actual harm, harm can be inferred [76]. Grooming is one aggravating factor, and others (listed non-exhaustively) are the character of the communication [77], deceit [80], abuse of a position or relationship of trust [82], and the age of the victim [85]. Since luring will often be accompanied by other offending, sentencing will have to address whether to impose concurrent or cumulative sentences, and the totality principle ([89]ff).

JFK - 4 bullets fired in Dealey Plaza?

Allow me to wander a bit from the main concern of this site, out of respect for the sixtieth anniversary of the famous and infamous assassination ...

In a plain, elegant prose, of a kind that is sometimes written by the best graduates of the greatest universities, the Warren Commission summarised the reason for its own existence:

“   The President’s car which had been going north made a sharp turn toward the southwest onto Elm Street. At a speed of about 11 miles per hour, it started down the gradual descent toward a railway overpass under which the motorcade would proceed before reaching the Stemmons Freeway. The front of the Texas School Book Depository was now on the President’s right, and he waved to the crowd assembled there as he passed the building. Dealey Plaza - an open, landscaped area marking the western end of downtown Dallas - stretched out to the President’s left. A Secret Service agent riding in the motorcade radioed the Trade Mart that the President would arrive in 5 minutes.

“   Seconds later shots resounded in rapid succession. The President’s hands moved to his neck. He appeared to stiffen momentarily and lurch slightly forward in his seat. A bullet had entered the base of the back of his neck slightly to the right of the spine. It travelled downward and exited from the front of the neck, causing a nick in the left lower portion of the knot in the President’s necktie. Before the shooting started, Governor Connally had been facing toward the crowd on the right. He started to turn toward the left and suddenly felt a blow on his back. The Governor had been hit by a bullet which entered at the extreme right side of his back at a point below his right armpit. The bullet traveled through his chest in a downward and forward direction, exited below his right nipple, passed through his right wrist which had been in his lap, and then caused a wound to his left thigh. The force of the bullet’s impact appeared to spin the Governor to his right, and Mrs. Connally pulled him down into her lap. Another bullet then struck President Kennedy in the rear portion of his head, causing a massive and fatal wound. The President fell into Mrs. Kennedy’s lap.”

- Report of the President’s Commission on the Assassination of President John F. Kennedy (“the Warren Commission”, or “the Commission”), U.S. Government Printing Office, Washington, 1964, p 3.

(Note: Governor Connally’s evidence is more detailed concerning his body position when hit: upon hearing a rifle shot he instinctively turned to his right because he thought it came from over his right shoulder, and as he could not see the President he started to turn to the left but didn’t complete this turn as he felt “something strike him in the back”, Warren Commission p 49).

That happened on 22 November 1963 in Dallas, Texas at about 12.30pm. It was 5.30am on the 23rd in New Zealand, and those horrible events were reported on our morning radio news bulletins. We still claim to remember what we were doing when we heard the news.

The Warren Commission’s Report was reviewed in 1979 by the House of Representatives Select Committee on Assassinations (the Committee). The Committee came to the same conclusion as had the Commission about the shots, except that in the light of additional information from accoustics experts it added that there was a high probability that there were four shots in all.

The Commission’s Report had been doubted by many people, indeed currently a majority of Americans, for the amount of damage it required one bullet to have caused. The Commission decided that the bullet that struck the President in the back and exited near his necktie was the same bullet that struck the Governor in the back. This bullet has been sarcastically dubbed the magic bullet. So the Committee’s fourth shot made room for a division of labour: one shot hit President Kennedy in the neck, exiting by the knot of his tie, and the other hit Governor Connally.

This possible - or “highly probable” - fourth shot raised questions about where it was fired from, and what sort of conspiracy was involved.

Nowadays we can all inspect Dealey Plaza through Google Earth or Apple Maps. We can speculate about where a second gunman might have been, and whether the shot he fired hit anything.

At first glance it would be natural to think that the large hole in the back of the President’s head was an exit wound, and the shot was fired from in front of him. But, if that happened, where was the entrance wound? And careful reading of the medical evidence is convincing: the shot entered the lower part of the back of his skull just to the right of his spine, and, being angled acutely because at this point the President had his hands up by his throat and was leaning forwards and sideways towards the left, the bullet largely (it was fragmented after entry) exited approximately above the President’s right ear. The force of this tore out a large part of the back of his head, spraying a plume of blood forwards.

The Zapruder film, with the camera operating at a speed of 18.3 frames per second (Warren Commission, p 49) suggests that the large wound was in the front of the President’s head, but it was not. Modern television is transmitted at approximately 60 images per second, so it is necessary to make some allowance for misleading appearances in the older format. The Commission used the Zapruder film mainly to determine time intervals between shots.

If I had to place a second gunman I would have said he was just inside the entrance to the pedestrian walkway next to the Commerce Street underpass. The first open bay in the wall between the walkway and the road (best viewed in Apple Maps) should have given an ideal view of the presidential car, which would have appeared to have had minimal lateral movement as it was approaching the shooter directly. This corresponds to the view from the “snipers nest”in the Book Depository, from which the car would have been retreating in a straight line.

But there are difficulties with that. Traffic was slow or stationery, and occupants of cars would have seen the gunman. And Mr Tague, who stopped his car partly on the grass between Commerce Street and Main and got out to see what people were waiting for, would have been standing very close to the gunman’s line of sight. Indeed, Mr Tague was so close to a line between the Book Depository and the pedestrian underpass that he was struck in the face by a chip dislodged from the Main Street curb either by a bullet fired from the Book Depository that missed both the President and the Governor, or by something else that was dislodged by such a bullet.

Supporting the second gunman theory is information onlly published this year (2023) by Paul Landis (“The Final Witness”, Chicago Review Press, 2023) who had been a security officer behind the presidential car. He says that when the cars arrived at the hospital he saw a bullet on the top of the back of the seat where the President had been sitting, where the seat meets the body of the car. He put it in his pocket so that it would not be souvenired by approaching people, and took it in to the emergency room where he put it on to the stretcher which still, at that point, contained the President. Previously, this bullet was thought to have been retrieved from the stretcher used for Governor Connally after it had been put, with the President’s, in the corridor outside the emergency rooms. If this new information is accurate it is consistent with the throat wound being an entrance wound, exiting in the upper back and landing in the position it was allegedly found.

There were many eye witnesses, or at least people present, and the murder was captured on film. The Commission was not acting as a court, so was not limited to admissible evidence, but rather was  functioning “as a factfinding agency committed to the ascertainment of the truth” (p xiv). So much information, so much uncertainty, or, more realistically, so much information and a bit of uncertainty. But enough of the “how”, and let’s not get started on “who” any conspirators might have been.