Several provincial leaders are calling on Canadian prime minister Mark Carney to restore mandatory sentences for possession of child pornography. It comes after Canada’s highest court struck down mandatory minimum sentences for some child pornography offenses.
In a 5 to 4 decision, the Supreme Court of Canada ruled that the one-year mandatory minimum jail sentences for accessing or possessing child pornography are unconstitutional, and they remove a judge’s discretion to impose sentences other than prison when appropriate.
But many lawmakers are unhappy with the ruling. Conservative politicians such as opposition leader Pierre Poilievre, Alberta premier Danielle Smith, and Ontario premier Doug Ford are demanding that the federal government overturn the Supreme Court’s decision by using the ‘notwithstanding’ clause of the Canadian Charter of Rights and Freedoms. It’s a provision that allows federal or provincial governments to temporarily override certain charter rights.
“This is where you use Section 33, when the courts go offside not speaking the will of the people,” Ford said. “We need to make sure that these people that are pushing child pornography... it’s disgusting, most disgusting behavior. They need to be in jail and they can rot in there for rest of their life as far as I’m concerned.”
That sentiment was also echoed by Wab Kinew, the premier of Manitoba, who stirred up controversy with his comments.
“Child sexual abuse, images and video, this is one of the worst things that anyone can do. Not only should you go to prison for a very long time, they should bury you under the prison,” Kinew said. “You shouldn’t get protective custody. They should put you into general population, if you know what I mean.”
Nova Scotia’s justice minister, Scott Armstrong, says he’s heading to Ottawa to make his views known.
“My first and foremost goal is to make sure we bring back strong sentencing for people that violate children in this manner, and hold them accountable for what they do and send a message of deterrence,” Armstrong said.
The ‘notwithstanding’ clause was originally intended as a compromise, allowing for dialogue between the courts and legislatures. Kinew says Ottawa should use the clause to overrule this decision.
“I think the average person out there hears an announcement like this and just shakes their head. This is why our Bill 50 was brought into place so that we can protect people’s rights in Manitoba,” Kinew said. “But there’s still the ability for a legislature or parliament to take action. When you hear something like this, it just doesn’t make sense to the average person.”
Kinew’s earlier comments drew condemnation from the Criminal Defence Lawyers Association of Manitoba, which said his comments are unhelpful from an elected representative, and he should try to bring the temperature down. The association says Kinew doesn’t understand that there may be rare or hypothetical cases where a less severe sentence is warranted.
Other legal experts across the country agree.
“I think the controversy is the crime itself is really problematic, that we have another important principle in our legal system is that the penalty should fit the crime. It’s important to remember that the court’s not saying that a minimum sentence for a properly defined version of child pornography would be okay. They’re saying this one goes too far,” said Wayne MacKay, a law professor from Dalhousie University.
But Prime Minister Carney’s Liberal government says it won’t use the constitution’s notwithstanding clause to overturn the high court’s ruling and bring back those child pornography sentences.
Federal justice minister Sean Fraser says Ottawa is looking for solutions to problem that would not involve overriding Canada’s constitution.
