The minimum mandatory sentence for the offence of obtaining sexual services from a minor has been struck down by an Edmonton judge.
In a ruling Monday, Court of Queens Bench Justice Larry Ackerl said the mandatory minimum sentence is unconstitutional as it fails to suit some situations.
Ackerl's ruling is laid out in his sentencing of Richard Charboneau, an Edmonton soldier convicted of trying to pay a 14-year-old girl to show him her breasts.
The 37-year-old was sentenced to nine months in jail and two years probation.
The mandatory minimum sentence for the crime is six months.
Prior to sentencing, the soldier's lawyer had asked Ackerl to rule on the constitutionality of the mandatory minimum sentence for the offence.
While Ackerl ruled the mandatory sentence was not grossly disproportionate in this case, he ruled that it could be in other cases.
In his analysis, Ackerl considered a reasonable hypothetical case where the minimum mandatory sentence would apply.
He considered the scenario where an 18-year-old with no criminal record asks a 17-year-old classmate to "flash" him for $20.
In such a case, a fit and proportionate sentence that achieves denunciation, deterrence and rehabilitation prospects, would range from a conditional discharge to suspended sentence and a probation period, Ackerl said.
The sentence would have to take into account the offender's youth, lack of criminal history and relatively minor facts of the offence, the judge said.
"Incarceration for six months substantially exceeds the range of proportionate sentences in the reasonable hypothetical scenario I have considered," he wrote.
"I find the mandatory minimum six-month sentence for a first offence ... contravenes section 12 of the Charter," Ackerl ruled.
Defence lawyer Kathryn Quinlan, who was not representing Charboneau, said the ruling means that for all future cases which will appear before the court in Alberta, there will be no mandatory minimum sentence for this offence.
"When a mandatory minimum sentence is declared unconstitutional by a Superior Court (in Alberta, the Court of Queen's Bench), that decision is binding upon all trial courts in the province," Quinlan wrote in an email to CBC.
"The removal of the mandatory minimum simply allows the future court to consider the offender before it, and the crime he/she committed, and determine what sentence is appropriate in that case without being bound to impose at least six months' incarceration."
Charboneau joined the army at 19 and most recently served as a member of the base transportation and electrical mechanical engineering unit in B.C. His status with the Canadian Armed Forces remains under review, a spokesperson confirmed by email.