Editorial: Nordheimer’s delicate dance

If there’s a case that demonstrates the complexities of mandatory minimum sentences, R. v. Donnelly is surely a good example.
On Nov. 6, Superior Court Justice Ian Nordheimer issued his sentence for Brandon Donnelly after he pleaded guilty to making child pornography for the purposes of publication. The offence comes with a mandatory minimum of one year in jail.

Donnelly had worked as an editor of films on behalf of his employer, Brian Way. Among the mitigating factors was the fact that the images were at the low end of what constitutes child pornography as they depicted naked underage boys engaged in a variety of activities such as swimming and wrestling. There was no sexual activity, and, according to Nordheimer, Donnelly believed Way’s assurances that the films were legal.

That was probably naive of Donnelly but that’s exactly what Nordheimer found the defendant, who had newly graduated from a film program, to be. But the mandatory minimum left Nordheimer with a dilemma given his finding that “a penitentiary term of imprisonment is not only unwarranted, it could also not be justified on a proper application of the principles of sentencing. Such a sentence would not be proportionate to Mr. Donnelly’s role in this matter.”

The finding is somewhat surprising in light of his next comment that “the appropriate sentence would be from a mid-reformatory term to a maximum reformatory term.” But it’s clear this was a difficult case for Nordheimer to reconcile. In the end, he determined 21 months was the appropriate sentence but, based on breaches of Donnelly’s constitutional rights due to the denial of a bail hearing for improper reasons and the serious mistreatment he suffered while in custody, he found it was an exceptional case where he could grant an exemption from incarceration. Nordheimer also took into account Donnelly’s high risk of suicide if he were to go to jail, a situation medical reports found was a result of his experiences in custody.

While it appears Nordheimer was looking for a way to grant relief to Donnelly, that’s as it should be. The decision reinforces the importance of considering mental health in the corrections system, something several cases have shown our institutions often haven’t done a great job of addressing. It also reflects the need to allow for at least a modicum of judicial discretion to prevent unjust results. While mandatory minimums seeks to preclude that option, that’s not justice.

For more, see "Judge finds creative way around mandatory jail time."

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