Kinew joins populist chorus on child pornography ruling

“Although minimum sentences for possessing and accessing child sexual abuse and exploitation material have been declared unconstitutional, our country’s highest court makes it clear that this finding is fully compatible with the recognition that sentences must reflect the highly reprehensible and damaging nature of these offences against children.”

— Prosecutor Lina Thériault

A recent Supreme Court of Canada ruling that struck down a one-year mandatory minimum sentence for accessing or possessing child pornography as unconstitutional has struck a political nerve as politicians from across the country have denounced the decision.

As reported by The Canadian Press last week, the top court ruled in a 5-4 decision that mandatory minimum sentences remove a judge’s discretion to impose sentences other than imprisonment when appropriate.

Justice Mary Moreau, who wrote the decision on behalf of the Supreme Court majority, noted that mandatory minimum sentences can impose a flagrantly disproportionate sentence on offenders when they are applied to a broad range of situations.

“They capture both the well-organized offender who, over the years, has accumulated thousands of files showing prepubescent victims, and the young 18-year-old offender who, one day, keeps and views a file showing a 17-year-old victim that was sent to the offender without them having requested it,” Moreau wrote.

As reported by the Canadian Bar Association, it was the latter scenario that the majority relied upon to determine that the sentence would violate section 12 of the Canadian Charter of Rights and Freedoms.

The Supreme Court’s decision follows a 10-year examination of the use of mandatory minimum sentences. Considering the fact that the top court has already struck down the use of mandatory minimum sentencing for drug trafficking, importing cocaine, mandatory victim surcharge and mandatory sex offender registration, last week’s decision was not unforeseen.

The track record speaks for itself — if Parliament feels the need to pass mandatory minimum legislation that affects a broad range of offences, federal politicians run the risk of losing a charter challenge down the road.

Nevertheless, the decision has understandably drawn the vitriol of more populist voices in Canada’s political fabric, such as Alberta Premier Danielle Smith, Ontario Premier Doug Ford and Conservative Opposition Leader Pierre Poilievre, who have all demanded Ottawa overrule the court decision via the use of the notwithstanding clause.

Somewhat surprisingly, Manitoba Premier Wab Kinew on Monday was the latest premier to join the growing political chorus denouncing the decision. While he didn’t outright call for the use of the notwithstanding clause to override the Supreme Court ruling, he stood with those who denounced the decision — Smith, Ford and Poilievre — arguing that the average Canadian cannot make sense of the court ruling.

“Not only should (you) go to prison for a long time, they should bury you under the prison,” Kinew told media on Monday. “You shouldn’t get protective custody. They should put you into general population, if you know what I mean.”

We sympathize with those — including Kinew — who believe that guilty individuals who both access and sell child sexual abuse images and video should be rightly punished for the harm they have caused. But his remarks suggest a lack of understanding of the reasons behind the decision.

Kinew’s comments even drew strong criticism from the Criminal Defence Lawyers Association of Manitoba, which issued a written statement to media on Monday denouncing them.

“We think the comments are unhelpful from an elected representative. We request that the premier be careful with his comments and turn the temperature down,” the association said.

It’s a curious position for the premier to take.

Just a few short weeks ago, Manitoba’s NDP introduced a bill that would require judges to weigh in any time the Manitoba government invokes the notwithstanding clause to override charter rights. As CP reported, judges would not have the power to stop the government, but would issue an opinion on whether the bill would be unconstitutional if not for the notwithstanding clause.

More to the point, Kinew has publicly criticized governments in Quebec, Alberta and Saskatchewan for use of the clause, arguing that his peers were attacking the rights of vulnerable people. But in standing in lockstep with those who are calling on Ottawa to override the Supreme Court decision by invoking the notwithstanding clause, Kinew is subverting his own argument against its use.

We would urge Canadians to be wary of any leader who suggests the use of the notwithstanding clause as a means to circumvent the Supreme Court.

Not only does the clause have the potential to override charter rights such as freedom of expression, religion and equality before the law, it can prevent courts from striking down laws that are deemed unconstitutional that may deny individuals and groups the legal option of challenging possibly harmful legislation.

Once that threshold is breached, and you take away the fear of using the clause, it’s only a matter of time until other political parties make use of it — if and when they come to power.

Premier Kinew should understand that striking down mandatory minimum sentence legislation does not mean guilty parties will not be given harsh sentences for their offences. The Supreme Court has already ruled previously that sentences imposed on those found guilty of child pornography charges must reflect the damaging nature of offences against children.

However, our judiciary need the flexibility to impose meaningful yet impartial sentences based on the facts of any given case — not the whims of those playing populist politics.

Our politicians do Canadians a disservice by suggesting otherwise.