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Appeal court strikes down mandatory minimum sentence in child porn case
'Best friends' were teenagers when offender, who suffers from FASD, committed assault and took photos
READER CAUTION: The following contains details of a sexual assault, as heard in open court.
The NWT Court of Appeal has sided with a lower court judge in upholding the house arrest sentence given to a man convicted of making child sexual abuse and exploitation material.
In doing so, it also joined a growing chorus of Canadian courts opting to strike down broad mandatory minimum sentences crafted by the federal government, ruling they violate Section 12 of the Charter of Rights and Freedoms.
In this case, the Crown had appealed the non-jail punishment in a case involving two Indigenous teenagers from the northern area of the NWT, stated a decision issued this week.
There is a publication ban in place, forbidding any information be made public that could lead to the identity of the victim.
The offender was born premature and suffers from fetal alcohol spectrum disorder, stated the appeal court decision.
He and the victim had been “best friends” for 13 years.
In February 2024, the offender and the victim were staying at the offender’s home and were in bed together.
She said there had been no sexual activity between them on that date and she was wearing pants prior to falling asleep.
The victim awoke to find the offender taking photographs of her naked body and masturbating.
Seven photographs were taken in total; one depicted a hand touching between her legs, one was taken from behind, and five photographs showed more intimate areas, stated the appeal court decision.
The offender was arrested on in May 2024 for sexual assault and voyeurism, although those charges were later withdrawn by the Crown and replaced with the charge of making child sexual abuse and exploitation material.
The offender immediately admitted taking all the photos while the victim was asleep.
In NWT Territorial Court in 2024, he pleaded guilty, with the Crown calling for a jail term of two years less one day.
Stated the appeal court: “The Crown says that while The offender is ‘in many respects a sympathetic figure,’ his actions were highly morally blameworthy, caused real and lasting harm to the victim, and the sentencing judge failed to give primary consideration to the objectives of deterrence and denunciation.”
In December 2024, Judge Robert Gorin declared that the one-year mandatory minimum penalty of imprisonment constitutes cruel and unusual treatment or punishment, contrary to the Charter.
“He emphasized that sentencing judges should be entitled to individualize their approach to sentencing and determined … that a conditional sentence order would be a ‘fit and appropriate’ sentence,” stated the appeal court judgement.
“He said a conditional sentence order would be ‘consistent with the fundamental purpose and principles of sentencing’ … could provide ‘significant denunciation and deterrence, and would be ‘better than incarceration at achieving the restorative objects of rehabilitation, reparations to the victim and the community and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and community.’”
Judge Gorin directed that the first 12 months of the conditional sentence be on house arrest, with the remaining 12 months less a day on strict curfew. He also added a two-year term of probation following the conditional sentence, on similar terms.
Stated the appeal court: “The sentencing judge said it was important to determine the ‘scope of the prohibited activity’ and ‘range of potential conduct.’ He acknowledged that mandatory minimum sentences for offences that can be committed ‘in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence.’”
“The sentencing judge accepted that ‘conditional sentences are rarely appropriate for sexual offences against children’, ‘I have no hesitation in finding imprisonment to be necessary in the present case. I find that to be so given the need to strongly denounce the crime (the offender) committed. Additionally, specific and general deterrence are required. However, I am highly concerned with the effect that a term of conventional imprisonment would have on (the offender), whether it be in the mid territorial or upper territorial (jail) range.”
