Fraser says he considered notwithstanding clause after court struck down child porn penalties
OTTAWA — Canada’s justice minister says while he never believed in the notwithstanding clause as the right tool to maintain the mandatory minimum penalty for access and possession of child sex abuse images, he nevertheless “gave it the thought that it deserves.”
Sean Fraser’s comments come as debate gets underway on Bill C-16, an omnibus crime bill that proposes to insert what legal analysts characterize as a “safety valve” into mandatory minimum sentences.
Doing so has touched off a fresh political debate on the issue of mandatory sentences within Canada.
As the Opposition Conservatives say injecting judicial discretion opens the door for more offenders avoiding prison time, Fraser calls the measure a necessary one to restore those mandatory sentences that courts have struck down and maintain others which he sees as destined to fall.
“I believe that those provisions are going to be struck down,” he told National Post in an interview this week.
Legislation on the issue came about after fallout from a Supreme Court of Canada decision last October, where the nine-judge panel ruled 5-4 to strike down the one-year mandatory minimum sentences for the possession and access of child sex abuse and exploitation material, commonly called child pornography.
Reaction to the ruling was swift: Opposition Conservative Leader Pierre Poilievre vowed that a future government of his would use the notwithstanding clause, or section 33 of the Charter of Rights and Freedoms, to override the top court’s ruling and maintain the mandatory sentence.
Premiers like Ontario Premier Doug Ford and Alberta Premier Danielle Smith called on Prime Minister Mark Carney to do the same .
Asked whether doing so was discussed or considered, Fraser said he never believed it would be the right solution but “gave it the thought that it deserves,” as it had been raised by other parliamentarians.
“When I started to think about it, though it was against my initial instinct, I wanted to give it appropriate thought, and very quickly, I came to the conclusion that we wouldn’t actually be helping an additional person by invoking the notwithstanding clause,” Fraser told National Post in an interview this week.
“In addition, there’s a problem if you invoke the notwithstanding clause in that it only provides a temporary solution,” he said, citing how the clause sunsets after five years.
“Giving a temporary solution without providing a permanent constitutional guard against the analysis that was conducted in (the decision) wouldn’t have solved the problem.”
While several provinces have triggered the notwithstanding clause in recent years, it has never been used in criminal law or by a federal government. Fraser, who also cited philosophical disagreement to using it, outlined the federal government’s concerns about the clause in an intervention filed with the Supreme Court, currently hearing arguments over its use by the Quebec government to enact its controversial secularism law.
At the heart of the criticism over the Supreme Court’s ruling last fall was the notion that the one-year mandatory minimums were unconstitutional based on what it called a “reasonably foreseeable” scenario, not based on the actual facts of the case itself.
While the case involved two Quebec men who had pleaded guilty to having hundreds of images of children as young as three being severely sexually abused, the court considered the impact of the mandatory sentences in regards to “sexting” and what could happen should an 18-year-old be sent unsolicited intimate images from a 17-year-old.
Writing for the majority, Justice Mary Moreau applied that example to say that the mandatory one-year imprisonment would be considered “grossly disproportionate” and in violation of the Charter protections against cruel and unusual punishment, as such an offender would be better suited to receive a conditional discharge and probation.
Colton Fehr, a law professor at the University of Saskatchewan, pointed to a change in methodology used by the court to evaluate whether a sentence constituted being cruel and unusual, including by using “reasonably foreseeable” scenarios, as leading to the successive striking down of different mandatory minimum penalties over the past decade.
“Now that that methodology has been solidified, and all the debate around that has, or should be over now I would think, the question for Parliament was how to respond,” he said
Fehr said the Supreme Court has over different rulings pointed to how Parliament could create a “safety valve” that would allow judges to exempt certain offenders from a mandatory sentence, depending on the circumstances of their case.
“That’s a wise choice in this circumstance,” he said. “It serves to kind of potentially cool the temperature on the political debate over mandatory minimum punishment.”
Fraser said looking at the decisions striking down past penalties, it had less to do “about the specifics of the underlying offence” but “more often about the overbreadth of a mandatory minimum that would capture circumstances that were probably not within the contemplation of the drafters when they drafted the text of the underlying offence.”
“We’re wanting to manage the risk that some very serious crime will be committed that Parliament has suggested should be subjected to a mandatory minimum that could be struck down on the basis of a reasonable hypothetical going forward, by protecting the constitutionality with some safety valve where courts will have to explain themselves,” he said.
The minister also pointed to statements made in the past by Bloc Quebecois and Conservative MPs where they suggested Liberals adopt the idea.
Life imprisonment sentences are exempt from the “safety valve” provisions in the Liberals’ bill that otherwise cover 60 offences where they apply. Fehr said he believes that murder sentences remain “vulnerable” given that the last time the court heard such cases it pre-dated the current methodology of using “reasonably foreseeable” scenarios was in practice.
What the Supreme Court’s ruling last fall showed was there did not need to be a connection between the actual facts of the case it was hearing and what conduct could be captured by “the scope of the offence” when it came to that analysis, he said.
When it came to murder, Fehr raised one possible scenario as being an Indigenous woman with no criminal record who kills her abuser and deals with intergenerational suffering.
“I would expect to see that part of the legislation constitutionally challenged.”
Opposition Conservative justice critic Larry Brock told reporters this week that the Liberals’ proposed changes would allow an accused to argue for lighter sentences on the basis of “unique circumstances,” putting the entire regime of mandatory minimum penalties up for “debate.”
“This actually weakens our criminal laws,” he said. “It allows violent criminal offenders, those who should be detained and locked up for prison sentences, it now allows them to actually make an argument for a conditional sentence.”
Fraser has defended the proposed change as upholding mandatory sentences, arguing “this is not a license for courts to do whatever they wish.”
“There’s going to be a narrow box within which courts will be required to fit themselves, should they wish to move away from the mandatory minimum,” he said. “I don’t think that’s going to be easy to do, particularly when you’re dealing with a legal system that has the ability to appeal.”
Dwight Newman, a constitutional law professor, also based at the University of Saskatchewan, said how the courts deal with the proposed “safety valve” and how often they choose to make exceptions remains to be seen.
“Part of the reason for having mandatory minimum sentences was that courts were thinking that lower sentences were justifiable,” he said.
“I’m sure there will be interesting arguments that emerge,” he later added. “There’s a creative defense bar that that will put this to the test.”
National Post
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