The Supreme Court of Canada ruled in October that the one-year mandatory minimum jail sentences for accessing or possessing child pornography are unconstitutional.Sean Kilpatrick/The Canadian Press
The Liberal government has found a smart way to give new life to mandatory minimum jail terms for everything from sexual interference to weapons trafficking, minimums that had previously been struck down by the courts.
By permitting the country’s criminal-court judges a modicum of discretion for exceptional cases, the Liberals’ proposed legislation addresses the uniquely Canadian problem of the imaginary offender – an invented individual for whom nearly any minimum sentence would shock the conscience.
What a lot of scrapes this shape-shifting character got into. In a child-porn possession case called Senneville, just six weeks ago, he was an 18-year-old who received a naked picture from a friend of his 17-year-old girlfriend, and didn’t delete it from his phone. The actual offender, Louis-Pier Senneville, possessed more than 300 images of children, most of them between ages 3 and 6, being horribly abused. But when the Supreme Court struck down the one-year minimum for possession of child pornography, it was to protect the imaginary offender.
In a child-luring case known as Bertrand Marchand, two years ago, she was a teacher in her late 20s, with bipolar disorder, who contacted a 15-year-old student over the Internet and engaged in one episode of sexual touching. The Supreme Court struck down the one-year minimum for child luring because of her. (She was a milder version of an actual offender in a separate case.)
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In Hills, also two years ago, the imaginary offender was a young man who shot a paintball gun at a house. The Supreme Court struck down the four-year mandatory minimum for discharging a gun at a house because of him. The actual offender, Jesse Hills, shot an actual gun (a hunting rifle) through an actual living room window into an actual house with two actual parents and two actual children.
In short, if a judge could conceive of an offender who wouldn’t come close to deserving a mandatory minimum punishment, that punishment could be deemed grossly disproportionate and tossed from the books. (The Supreme Court calls these not-quite-living creatures the “reasonable hypothetical,” or lately, the “reasonable foreseeable.”) The principle, that a bad law for one, even an imaginary one, is a bad law for all, dates from a 1987 Supreme Court ruling. So adept have Canada’s judges proven to be at inventing offenders, many minimums have been swept aside, in scores of cases at all court levels.
The Liberals’ answer to the hypothetical offender is to give judges limited discretion when they believe a mandatory minimum would be grossly disproportionate for an actual offender before them. In such cases, the judge may impose a shorter jail term. Why does that mean goodbye to the hypothetical offender? Because judges would have the latitude to craft a sentence that is not grossly disproportionate if an actual person turns up and deserves exceptional treatment.
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Would this rid the system of hypothetical offenders? Maybe not entirely. In Senneville, for instance, a majority of the Supreme Court said the imaginary 18-year-old would deserve a conditional discharge, which would mean no criminal record. Faced anew with the child porn minimum, would the court decide that a one-day jail term would be grossly disproportionate for the invented teenager? If such a sentence were deemed merely unfair, but not grossly so, the term would still stand. Hypothetical offenders will still exist in theory, but the chances of them appearing in a courtroom should be vanishingly small.
Traditionally, it was Parliament’s role to set the parameters of a fit sentence; that included the authority to limit a judge’s discretion. Mandatory minimums in child-porn possession cases were a reminder to judges who were slow to grasp the harm done. Now, by giving judges a margin of discretion, but still insisting on a jail term and criminal record, the Liberals would restore balance between Parliament and the courts.
Exceptions, though, do have a way of becoming the norm. The legislation should be tweaked to require judges to produce written (not just oral) decisions rendering an explanation for opting-out of the mandatory minimum.
The Liberals are proposing sensible reform that responds to the Supreme Court’s concerns over mandatory minimums, while preserving the ability to denounce serious crimes. The judiciary should now bid farewell to the imaginary offender.