Advocating violence no way to respond to court verdict

Recently, the Supreme Court of Canada ruled that one-year mandatory minimum jail sentences for possession of and accessing child pornography (child sexual abuse and exploitation material) are unconstitutional.

In response to this ruling, Manitoba Premier Wab Kinew appears to be calling for the extrajudicial killing of convicted offenders and encouraging vigilante justice saying “Not only should (you) go to prison for a long time, they should bury you under the prison. You shouldn’t get protective custody. They should put you into general population, if you know what I mean.”

Not only do these comments advocate further violence in prisons — threatening the life and safety of those working and incarcerated in these institutions — these comments are an affront to the administration of justice and rule of law.

Mandatory minimum sentences are a blunt legal tool that can prevent a judge from doing their job, which includes considering the individual circumstances of a case in arriving at a fit and proportionate sentence. Not only can mandatory minimums constrain a judge’s consideration of the circumstances of the accused, they can also limit deliberation about the harms to a victim or community in the specific circumstances of an offence.

In the Supreme Court ruling that Kinew called “disgusting,” the only issue before the court was the constitutionality of the impugned mandatory minimum sentences. The specific sentences that had been imposed on the individuals before the court were not an issue on appeal.

In analyzing the constitutionality of mandatory minimum sentences in this case, the whole of the Supreme Court recognized that child sexual abuse and exploitation material is “a scourge that is profoundly wrongful and harmful towards children.” A majority of the court acknowledged that while these offences “often warrant the imposition of severe penalties”, they can also “be committed in different ways, under different circumstances and by different offenders.”

When a court is asked to consider whether a mandatory minimum sentence is constitutional, the court considers what a fit and proportionate sentence would be in the case in question but also considers hypothetical situations that are reasonably foreseeable. Because of the wide range of circumstances in which a crime can occur, a wider range of scenarios is considered and then compared with the mandatory minimum.

This is why, in this case, the court considered a scenario where an 18-year-old receives (and keeps), from a friend of the same age, a “sext” that friend received from his girlfriend, who is 17 years old. Without diminishing the harm and the need to denounce this conduct, the court found that in this scenario, where a young person without a criminal record receives an unsolicited explicit image from a friend, a minimum sentence of one year’s imprisonment would be grossly disproportionate.

In a constitutional challenge to a mandatory minimum sentence, consideration of a range of scenarios protects the rule of law because it is the nature of the law, not just the circumstances of the specific accused, that is in issue.

While the mandatory minimum sentences in question were determined to be unconstitutional, the principle that courts should impose tougher punishments for sexual crimes against children is still the law.

Parliament has repeatedly increased sentences for sexual offences against children, with successive legislative changes (in 1987, 2005 and 2015) that have steadily increased the maximum sentences for these kinds of offences. And Supreme Court rulings have repeatedly respected and upheld these legislative choices. Recently, in a 2020 decision that originated in Manitoba (R. v. Friesen), a unanimous Supreme Court said that courts should be giving higher sentences for sexual crimes against children and that longer sentences (for example, 10 years or more) shouldn’t be unusual.

It is possible, as the Supreme Court has done in the decision currently under attack, to emphasize the immense harm of sexual violence against children while also acknowledging that minimum sentences are unconstitutional.

Every day, sentencing judges grapple with myriad competing interests in arriving at a just sentence. Mandatory minimums remove their judicial discretion and can lead to unjust sentences. This contributes to the mass incarceration of racialized individuals (especially Indigenous Peoples), women, those dealing with disabling mental health issues, and the poorest among us.

Sentencing is a highly individualized process and debate about outcomes in judicial decisions is expected. In a healthy democracy, the “dialogue” between our judicial and legislative branches of government is characterized by mutual respect and tethered to the actual decisions rendered by courts and laws passed by the legislature.

Instead of contributing to a thoughtful dialogue about the competing interests at play in sentencing, Kinew is advocating for violence in incredibly dehumanizing terms and in ways unbecoming of a political leader.

Allison Fenske is a practising lawyer, clinical counsel at the University of Manitoba’s Faculty of Law and Director of the University of Manitoba Community Law Centre, which includes a prison law clinic that provides legal services to incarcerated individuals across Manitoba.