BC Court of Appeal: Mandatory Minimum Sentence for Possession of Child Pornography is Unconstitutional

Illustration: Canadian Charter of Rights and Freedoms

On November 9, the British Columbia Court of Appeal released its decision in R. v. Swaby, 2018 BCCA 416, upholding decisions of the Provincial Court of BC and the BC Supreme Court, which held that a mandatory minimum sentence of 90-days’ imprisonment for possession of child pornography was unconstitutional, and of no force and effect.

The defendant pleaded guilty to one count of possession of child pornography, contrary to s. 163.1(4)(b) of the Criminal Code. At the time of the offence, the Criminal Code imposed a mandatory minimum sentence of 90-days’ imprisonment on summary conviction, and this mandatory minimum was later increased to 6 months. However, the sentencing judge found that the defendant’s moral culpability was reduced due to a serious intellectual disability, and that he was a low risk to re-offend. The judge held that 90-days’ imprisonment would be grossly disproportionate, constitute cruel and unusual punishment, and violate the defendant’s Charter rights. He instead imposed a conditional sentence order (“CSO”) and probation. This decision was upheld by the BC Supreme Court.

The BC Court of Appeal agreed with the lower courts, noting that although the seriousness of the offence was high, the CSO was a proportional sentence due to the defendant’s personal circumstances and reduced moral blameworthiness. Moreover, it held that the mandatory minimum sentence imposed by s. 163.1(4)(b) would be grossly disproportionate to the defendant, and to reasonable hypothetical offenders, and thus could constitute cruel and unusual punishment contrary to s. 12 of the Charter. The Crown did not attempt to justify the provision as a reasonable limit under s. 1, and the mandatory minimum in s. 163.1(4)(b) was held to be unconstitutional and of no force and effect.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.