The challenges come as a number of these provisions for other types of offences have been struck down in the courts since the Supreme Court of Canada ruled in 2014 in R. v. Nur that the mandatory minimums for illegal firearm possession were unconstitutional.
However, the two-day hearing that starts on June 26 will also take place just weeks after the Court of Appeal in another child pornography possession case significantly increased the offender’s sentence and explained that different sentencing principles are the priority for these crimes.
Samara Secter, one of the lawyers acting in the appeal, says the Charter challenges are not in any way seeking to minimize the seriousness of sexual offences against children.
“That is not the message. It is that we trust judges to do their job,” says Secter, an associate at Addario Law Group LLP in Toronto.
“Not all offenders are the same. Some are less morally blameworthy than others.”
Mandatory minimums “sacrifice individualized sentencing at the altar of generalized deterrence,” she adds. The cases before the Court of Appeal are R. v. Nathaniel John and R. v. Jordan Cristoferi-Paolucci.
Lawyers for John are asking for the mandatory minimum for possession of child pornography to be struck down, which is now six months in jail if the Crown proceeds summarily or one year if by indictment.
Cristoferi-Paolucci is also challenging the possession minimum, as well as those for making or accessing child pornography.
His making child pornography conviction is related to the then-24-year-old basketball coach convincing a 16-year-old aspiring player to send explicit photos and videos of him in exchange for money, food and clothing.
Other mandatory minimums, including ones for luring, sexual exploitation and sexual interference, have been struck down by the courts for breaching the Charter.
“The seriousness of the offence has no bearing on the analysis,” state Frank Addario and Secter in written submissions filed with the Court of Appeal on behalf of Cristoferi-Paolucci.
“Sexual offences are routinely struck because they capture too wide an array of conduct. Child pornography offences are no different. The sentence cannot distinguish between those accessing, possessing or making large collections, as opposed to one image, stills as opposed to videos, cartoons as opposed to real children, young children as opposed to those about to turn 18,” they write.
The broad nature of the offence could also result in a mandatory jail term for an 18-year-old who receives and keeps a “sext” from a boyfriend or girlfriend who is 17, note lawyers Janani Shanmuganathan and Gerald Chan, in written submissions filed on behalf of John at the Court of Appeal.
“A six month sentence is grossly disproportionate for the mere possession of a single intimate photo sent consensually by an adolescent to a young adult,” they write.
Two of the three offences that are being challenged are hybrid, so that the minimum punishment depends on how the Crown proceeds with its prosecution.
That process was highlighted by the Supreme Court in Nur as an example of one of the flaws with mandatory minimum sentencing provisions.
“Sentencing is inherently a judicial function. It is the courts that are directed by Parliament to impose a mandatory minimum term of imprisonment, and it is the duty of the courts to scrutinize the constitutionality of the provision.
The Crown’s submission is in effect an invitation to delegate the courts’ constitutional obligation to the prosecutors employed by the state,” wrote then-chief justice Beverley McLachlin for the majority.
Michael Dineen, a Toronto-based criminal appeals lawyer, says in Nur and in its decision in R. v. Lloyd that the Supreme Court has focused on the fairness of the mandatory minimum sentence on “the lowest-level offender” charged with the offence and not only the nature of the crime.
In a decision last month, however, the Court of Appeal stated that “denunciation and general deterrence” are the primary sentencing principles for individuals convicted of child pornography offences.
In R. v. Inksetter, the court increased the sentence to three and a half years in prison for a 51-year-old man convicted of possessing “one of the largest and worst collections of child pornography” uncovered by the Ottawa police.
The trial judge had imposed a sentence of two years less a day, followed by three years of probation with requirements to undergo counselling and terms that would allow police to search his electronic devices.
“Child pornography is a pervasive social problem that affects the global community and its children,” wrote Justice Alexandra Hoy for the three-judge panel.
“In his focus on probation, the trial judge gave primary effect to the objective of rehabilitation rather than the objectives of denunciation and general deterrence.”
While this case involved a serious offender, the ruling shows that the Court of Appeal is sending a message about how to combat child pornography, says Dineen.
“The only way to try is through general deterrence. That is something this judgment is trying to establish,” he adds.