A prominent Canadian legal scholar has proposed an elegant constitutional solution that could preserve mandatory minimum sentences for child pornography offenses without resorting to the controversial notwithstanding clause.
The Constitutional Conundrum
University of Alberta law professor Steven Penney argues that recent Supreme Court decisions striking down mandatory minimum sentences for child pornography possession and distribution have created a legal dilemma. While courts have found these sentences unconstitutional under certain circumstances, Penney suggests there's a simpler path forward than the nuclear option of invoking Section 33 of the Charter.
The Judicial Trend Against Mandatory Minimums
Canadian courts have been increasingly skeptical of mandatory minimum sentences, particularly for child pornography offenses where the circumstances can vary dramatically. The Supreme Court's decisions in R. v. Ndhlovu and other cases have left Parliament searching for solutions to maintain tough penalties for these serious crimes.
The central problem, according to Penney, lies in how courts have interpreted the constitutional test for cruel and unusual punishment. Rather than assessing whether a sentence is grossly disproportionate for the typical offender, courts have been striking down laws based on hypothetical scenarios where the punishment might not fit the crime.
A Constitutional Workaround
Penney's proposed solution is both simple and legally sophisticated. Instead of using the notwithstanding clause—which would override Charter rights—he suggests Parliament could amend the Criminal Code to create a rebuttable presumption in favor of the minimum sentence.
How the Rebuttable Presumption Would Work
- Courts would be required to impose the minimum sentence unless the offender can demonstrate it would be grossly disproportionate in their specific case
- This shifts the burden of proof to the offender while maintaining judicial discretion
- The approach respects Charter rights while ensuring most offenders receive the intended punishment
This elegant solution addresses the Supreme Court's concerns about mandatory minimums being applied in exceptional circumstances while ensuring that the vast majority of child pornography offenders face serious consequences for their actions.
Why Section 33 Isn't the Answer
Penney argues that turning to the notwithstanding clause would be both politically divisive and legally unnecessary. The rebuttable presumption approach achieves similar outcomes without the constitutional controversy that comes with suspending Charter rights.
The beauty of this solution, he notes, is that it works within the existing constitutional framework while giving Parliament the tools it needs to combat child exploitation effectively.
A Balanced Approach to Sentencing
This proposal represents a middle ground in the ongoing debate about criminal sentencing. It acknowledges that some circumstances might warrant deviation from standard penalties while ensuring that exceptions remain exactly that—exceptional rather than routine.
For lawmakers concerned about maintaining tough penalties for child sexual exploitation crimes, Penney's constitutional workaround offers a path forward that respects both the Charter and the need for effective criminal justice measures.
