Mandatory Minimum Sentences for Child Pornography Struck Down
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In a 5-4 decision at the end of October, the Supreme Court of Canada struck down the one-year mandatory minimum sentence for possessing and accessing child pornography. The case, Quebec (Attorney General) v. Senneville, involved two men accused of possessing child pornography. The accused argued that a mandatory minimum penalty of one year was “cruel and unusual treatment or punishment.”
The Court did not find that the accused men would face cruel and unusual treatment or punishment for their particular crimes if the mandatory minimum applied to them. The offenders were found to be in possession of hundreds of horrific pornographic files.
Rather, the majority relied on a hypothetical scenario in which an 18-year-old receives and retains a “sext” depicting a 17-year-old. Technically, the 18-year-old could be found guilty of a child pornography offence. The majority of the Court found that, based on this hypothetical example, a one-year sentence could be cruel and unusual punishment.
Mandatory Minimum Sentences
Canada’s courts have struck down dozens of mandatory minimums as unconstitutional. Parliament has also repealed some in the past decade, including 14 just a few years ago. In some cases, this is a reasonable approach, as prison is costly and often serves as a training ground for future criminal activity and associations. Mandatory minimums ensure that certain crimes are always punished with prison time. As such, they should be reserved for violent crimes that pose an unmistakable danger to the community, allowing judges to use restorative sanctions such as restitution and community service for non-violent offenders.
Mandatory minimum sentences indicate the severity of a particular crime, in Parliament’s view. When the prohibition on child pornography (now referred to as child sexual abuse and exploitation material) was added to the Criminal Code, there was no attached mandatory minimum sentence. However, in the years following, Parliament created more severe sentences. In 2015, Parliament increased the minimum penalty to one year so that anyone convicted under this section of the Code would have to spend at least one year in prison for possessing child pornography.
The Dissent in Senneville
The dissenting Supreme Court justices expressed the importance of mandatory minimum sentences for child pornography. “Child pornography has unquestionably become a scourge both nationally and internationally. It destroys countless innocent lives. Each pornographic photograph, video or audio recording that involves a child is an act of exploitation that will leave the child with deep and lasting scars… Through the imposition of more severe sentences, the justice system expresses society’s deep and rightful indignation.”
In response to the Supreme Court’s decision, prominent politicians such as Ontario Premier Doug Ford, Manitoba Premier Wab Kinew, Alberta Premier Danielle Smith, and Conservative leader Pierre Poilievre have condemned the Court’s decision and called on the federal government to use the notwithstanding clause to maintain mandatory minimums.
Bill S-240
Not long after the Supreme Court released its ruling, Senator Leo Housakos introduced Bill S-240 to do just that – maintain mandatory minimum sentences for possessing and accessing child sexual abuse and exploitation material. The bill would invoke section 33 of the Charter, which allows laws that the courts have struck down to continue to stand. The notwithstanding clause would be in effect for five years, at which point it would lapse or need to be renewed by a vote in Parliament.
Bill C-16
At the beginning of December, the federal government also indicated its intent to maintain mandatory minimum penalties for child pornography, but not by using the notwithstanding clause. Instead, the government’s Bill C-16 includes the following: “When imposing a sentence for an offence that has a minimum punishment of a specified term of imprisonment, a court shall impose a shorter term of imprisonment than the specified term if, in the circumstances, the minimum punishment would amount to cruel and unusual punishment for that offender.”
This change will help avoid courts striking down minimum penalties if, in their opinion, such a penalty could amount to cruel and unusual punishment. It also ensures that Courts do not use hypothetical scenarios to impose a lower sentence or to strike down a minimum penalty. This would apply not just to court rulings around mandatory minimums for child pornography, but for other mandatory minimums as well. Additionally, it ensures that mandatory minimum penalties are maintained more permanently than the notwithstanding clause would do. While it makes the mandatory penalties slightly less mandatory, since there is an option for courts to avoid the minimum, it generally maintains the penalty.
Conclusion
The government bears the sword to punish wrongdoing and crime in Canada must be appropriately punished. At the very least, courts should not strike down laws based on hypothetical scenarios. If an actual case arises where the court believes that applying a mandatory minimum would be grossly disproportionate, the court could find a remedy that fits such a case. Two solutions have been proposed in Parliament. Bill S-240 would invoke the notwithstanding clause to restore the mandatory minimums relating to child pornography only. Bill C-16 would maintain mandatory minimum penalties by giving the courts some discretion to impose a lesser sentence in particular cases.
