Mandatory Minimum Sentences, Cruel and Unusual Punishment? - Sierra Bednarz
Mandatory minimum sentences reflect and uphold a long-standing ‘tough on crime’ approach to sentencing and the criminal justice system as a whole. This approach values punishment over rehabilitation and is mostly concerned with ensuring that criminals pay for what they have done to their victims. Mandatory minimums impair the court’s ability to implement sentences on an individual basis—prioritizing the objectives of denouncement and retribution over the implementation of proportionate sentences. Due to the severity of the offences they are associated with, it may appear as though these sentencing provisions are justified in punishing so strictly. Serious crimes, such as firearms offences, and murder, are expected to be treated harshly regardless of the offender’s circumstances. However, this method of sentencing significantly reduces the discretion of judges and may result in an unnecessarily harsh punishment being imposed upon some offenders. Justice is not solely making offenders pay for their offences, but also ensuring that the punishment is appropriate in the circumstances.
R v. Nepon
In the case of R v. Nepon, 1 the offender plead guilty to possession of child pornography contrary to s. 163(4) of the Criminal Code. The offence was proceeded summarily by the prosecution, as such it carries a mandatory minimum sentence of six months imprisonment. At first glance, six months imprisonment seems to be a fairly low bar to meet in sentencing sex offenders. However, the circumstances of this case, and the offender himself, are unique.
Mr. Nepon is not an ordinary offender and presents many challenges for the Manitoba Provincial Court in his sentencing. He is legally blind, with only about 10% vision in one eye. As a result of his blindness, Mr. Nepon has become reliant on using the zoom function on his phone and camera in order to see more than just the outline of the shape he is looking at. In addition, he has been diagnosed with autism spectrum disorder and major depressive disorder. According to his psychologist, Mr. Nepon’s autism prevented him from the understanding of the harmful nature of his actions and impaired his ability to empathize with the victims of child pornography. The court also notes the presence of multiple mitigating factors, as well as the limited aggravating factors in his case beyond the number of photos that were found in his possession. Mr. Nepon is an otherwise positive member of his community, he has no prior criminal record, he has accepted responsibility for his actions by pleading guilty to the offence and has come to understand the harm that he has caused. Furthermore, he has been severely impacted by not having access to his phone and laptop after his arrest, leading to his depression and suicidality. This would certainly be exacerbated by the circumstances of the Covid-19 pandemic, which requires new inmates to quarantine for a period of 14 days in isolation. Ultimately, the court is concerned that Mr. Nepon would be unable to survive a prison sentence. 2
In sentencing Mr. Nepon, the Manitoba Provincial Court determines that Mr. Nepon’s case is exceptional and diverges quite extensively from the other cases in the area. The case law makes it evident that a jail sentence is considered necessary in order to effectively denounce the possession of child pornography. However, it is also clear that imprisonment would have particularly devastating impacts on Mr. Nepon. The institutions do not possess the accommodations, programming or staffing required in order to adequately meet his needs. As a result of his autism, major depressive disorder and his blindness, Mr. Nepon would be exceptionally vulnerable if he were to be incarcerated. Therefore, a sentence of imprisonment, regardless of its duration, would be grossly disproportionate in this case. 3
As a result of this determination, the Provincial Court sentenced Mr. Nepon to a one-year conditional sentence, a jail sentence served in the community, followed by two years of probation. They assert that imposing a sentence of imprisonment in this case would constitute cruel and unusual punishment and violate section 12 of the Canadian Charter of Rights and Freedoms. “The mandatory minimum sentence applied to Mr. Nepon does not…pass constitutional muster. In his case, the law is unconstitutional and cannot be applied.” 4
Mandatory Minimum Sentences
Mandatory minimum sentences ensure that judges cannot implement sentences which go below the mandated minimum sentence, even if the offender’s circumstances are unusual and would otherwise result in leniency. The objectives of sentencing, outlined in s. 718 of the Criminal Code, include the denouncement of unlawful conduct, deterrence, separation of offenders from society where necessary, rehabilitation, as well as providing reparations for harm done, and promoting a sense of responsibility in offenders. 5 The Criminal Code further stipulates that the objectives of denouncement and deterrence should be prioritized in cases involving the abuse of minors. 6 Mandatory minimum sentences are quite consistent with achieving these objectives. They provide judges with sentencing parameters, which improves the consistency and predictability of sentences. Additionally, they are intended to deter future offenders from committing crime, prevent recidivism, and denounce the commission of particularly undesirable crimes. Although the effectiveness of tough on crime approaches in actually achieving these goals continues to be a subject of contention.
On the other hand, the fundamental principle of sentencing states that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” 7 It is in this respect that mandatory minimum sentences are less successful. They assign a crime a minimum sentence based on its severity and public outrage that it elicits, and while there is the potential for some variation it is restricted. Sentences are intended to be specifically tailored to the case at hand, and not based solely on the crime that the offender committed. The implementation of mandatory minimum sentences prioritizes the objectives of denouncement and deterrence, in such a way that it has the potential to jeopardize the court’s ability to implement a proportionate sentence.
In Mr. Nepon’s case, he committed an offence of possession of child pornography, a particularly egregious offence which, of course causes public outrage and disgust. Sexual offences against children cause extensive harm to victims and to our society as a whole, and there is no doubt that they should be taken seriously and denounced at every opportunity. It is doubtful that the public would be upset to learn that the possession of child pornography is one of the crimes that carries a mandatory minimum sentence. However, to look at the offence committed alone, would be a superficial analysis of his case. The consideration of Mr. Nepon’s vulnerabilities, as well as the impact imprisonment would have had on him, led to the determination that the mandated sentence would be unjust. This case demonstrates the role that judicial discretion plays in the prevention of cruel and unusual punishment, as well as the potential hurdle that mandatory minimum sentences can be. While mandatory minimum sentences may result in just sentences for some, or perhaps even the vast majority of offenders, the sentences fall short of being universal. Sentences should strive to be fair and reasonable for all offenders, therefore, consideration should be given to those cases that do not fit our expectations of the ‘traditional offender’. Judges should be capable of adjusting the sentence to account for those unusual circumstances, even if they are the rare exception to the rule.
While mandatory minimums serve as helpful sentencing guidelines for serious offences, they may do more harm than good in practice. In some instances, they appear to sacrifice the principle of proportionality and restrict the court’s ability to tailor the sentence to the individual offender. The Manitoba Provincial Court determined that in Mr. Nepon’s case, he was the exception to the rule, and as such it would have been cruel and unusual to adhere to the mandated sentence of six months imprisonment. This decision illustrates why mandatory minimum sentences have been the subject of considerable criticism and follows a trend in which they are being challenged in courtrooms across Canada. Both the Ontario Court of Appeal and the British Columbia Court of Appeal have struck down similar mandatory minimum sentences for the possession of child pornography as unconstitutional. 8 Whether or not the trend will continue into the future, is up for the courts to decide.
1 R v Nepon, 2020 MBPC 48 [Nepon].
2 Ibid at para 151.
3 Ibid at para 148.
4 Ibid at para 153.
5 Criminal Code, RSC 1985, c C-46, s 718 [Criminal Code].
6 Ibid, s 718.01.
7 bid, s 718.1.
8 Nepon, supra note 1 at para 3.