Judge finds creative way around mandatory jail time

Superior Court Justice Ian Nordheimer came up with an appropriate mandatory minimum sentence in a recent child pornography case, but in a twist that has the criminal bar talking about his creative approach, he decided the defendant wouldn’t serve it in jail.

After finding the matter before him was “a real-life example of the problems that are inherent in mandatory minimum sentences,” Nordheimer ordered a conditional sentence due to breaches of the Charter of Rights and Freedoms against the defendant whose mental health had deteriorated.

“Mandatory minimum sentences can clash with the core function of sentencing, as it is understood and applied in this country. That clash arises in this case because of the rare and unusual circumstances that are presented,” wrote Nordheimer in R. v. Donnelly.

The defendant, 30-year-old Brandon Donnelly, pleaded guilty to editing 74 films that featured naked teenage boys as an employee of a company that sold the videos over the Internet. Donnelly argued he didn’t know the films were illegal as his employer always maintained they were lawful.

Although the Crown sought seven years in prison for Donnelly, Nordheimer found “that it is not the appropriate sentence by a wide margin.”

The judge found the mitigating factors in the case, including the limited weight put on Donnelly’s “naïveté,” would bring the appropriate sentence to 21 months in prison, almost double the mandatory minimum of 12 months.

But Nordheimer found Donnelly shouldn’t serve the sentence in custody. Due to breaches of his Charter rights, Donnelly spent three days in unnecessary incarceration, according to Nordheimer, who also found Donnelly suffered severe mental deterioration.

The judge also relied on medical reports that suggested Donnelly would likely commit suicide if he went to jail.

“Of more importance, however, is that I have the opinions of three medical professionals (two psychologists and one psychiatrist) who say, in very clear terms, that Mr. Donnelly is at a marked risk for suicide, as a consequence of these events,” wrote Nordheimer.

“It is a risk that will be significantly increased if Mr. Donnelly is incarcerated. Indeed, the psychologist who is most familiar with Mr. Donnelly and who has worked with him the longest, is of the opinion that Mr. Donnelly’s risk of suicide, if he is sent to jail, is very high. These suicide concerns are reinforced, not only by Mr. Donnelly himself, but also by his family members.”

The decision, according to criminal lawyer Howard Rubel, is an example of the dilemma judges face when trying to apply sentencing principles without questioning the constitutionality of mandatory minimum sentences. “Respect for the law isn’t just restricted to punishment; it is restricted to a just penalty,” he says.

“And that’s the tension that judges have these days because there are a number of mandatory minimum sentences that are now in our law books.”

He adds: “What we are left with is judges caught between two very powerful principles. And frankly, I think this an example of the willingness of our judges to face the dilemma head-on.”

In many U.S. jurisdictions, judges faced with tough cases like this one have simply opted to not take on those matters for fear they couldn’t apply the law, according to Rubel. Although Canadian judges don’t have the ability to reject cases, “our bench has decided not to duck the problem but to face it head-on,” he says.

In the past, judges found other ways to circumvent mandatory fines and sentences, in some cases ordering a levy of $1 where fines were mandatory.

Nordheimer’s decision is another “creative” way around mandatory minimum sentences, says criminal lawyer Edward Prutschi, who notes the judge’s remedy in this case was very specific to the set of facts before him.

“What’s unique about this scenario is because of the psychiatric evidence and because of the factual background for the particular violation and the psychiatric evidence for this particular accused, Justice Nordheimer is finding that reducing the sentence would not be an effective remedy under s. 24(1),” says Prutschi.

“It would be a remedy but not an effective one. The only way to craft an effective one would be to create a remedy that would allow this accused to serve a non-custodial sentence. And to do that, he had to butt right up against the mandatory minimums, which would normally prohibit it.”

Nordheimer reasoned that in this case, incarceration would have had an adverse effect. “It is clear that, in the case of Mr. Donnelly, imposing a term of imprisonment will not advance his rehabilitation. Indeed, the uncontradicted evidence is that imprisonment will have the opposite effect,” he wrote.

“Imprisonment will not only impede rehabilitation, it will place Mr. Donnelly at very serious risk of self-harm and will, most certainly, negatively affect his already fragile mental state and it will do so in a significant way.”

Although unique, Nordheimer’s decision likely has little precedential value, according to Prutschi, because the case is very specific to the facts.

Not all lawyers take kindly to judges who avoid mandatory minimums. Bennett Jones LLP partner Lincoln Caylor, co-author of a report defending mandatory minimum sentences earlier this year, told Law Times judges who creatively circumvent such provisions should perhaps “resign and run for Parliament.”

“If it is constitutional, then it must be upheld and to the extent that you want the law changed, it is for Parliament to do that and it’s not for judges to try and circumvent the law,” said Caylor.

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