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Courts committed to justice revile mandatory minimums: Enenajor


TORONTO — The mandatory minimum sentence of one year in prison for luring a child into sexual activity via the internet is unconstitutional, Ontario's top court has ruled.

In upholding an earlier decision, the Court of Appeal said that forcing the courts to impose at least a 12-month jail term could, in some cases, be out of line with the various acts captured by the law.

Canadians, the court said, would find the one-year minimum to be abhorrent and intolerable to their sense of decency in cases where a person's comparative blameworthiness is less serious.

``Application of the mandatory minimum to such a wide range of behaviour would result in sentences that are grossly disproportionate for some individuals,'' the Appeal Court said.

The court, however, did uphold the constitutional validity of the offence itself despite finding that one part — presuming an accused knew a victim was underage — also violated the Constitution.

The decision, the latest in a string of court rulings that have struck down tough-on-crime provisions enacted by the former Conservative government under Stephen Harper, arose in the case of Douglas Morrison, a Toronto-area man in his late 60s. Morrison posted a personal ``casual encounters'' ad on Craigslist in 2013 in which he wrote: ``Daddy looking for his little girl to meet and have some fun with him.''

Court records show a Mia Andrews responded, writing she was 14 years old. Over two months, Morrison and Mia had sexually explicit conversations via computer and he suggested at one point they meet in Brampton, Ont., which they never did.

Mia turned out to be a police officer and Morrison, a golf-course groundskeeper in a long-term common-law relationship, was charged with child luring.

At trial, he testified he thought Mia was an adult woman because Craigslist rules required users to be 18 or older. He also said he had no intention of actually meeting Mia.

Morrison also attacked the constitutionality of a provision that presumes an accused knows a victim is underage — unless they can show they took reasonable steps to find out otherwise — as well as of the mandatory one-year minimum sentence as cruel and unusual punishment.

Ontario court judge George Gage found the requirement for an accused to take steps to ascertain a person's age to be constitutional, even if the presumption of guilt was not. Gage convicted him in January 2015 after deciding the prosecution had proven Morrison did not try to find out how old Mia was even though she told him she was 14.

At sentencing in September 2015, Gage refused to apply the mandatory minimum and instead handed Morrison a four-month term and probation.

Morrison and the prosecution both appealed. He argued the verdict was unreasonable. The Crown argued the minimum sentence was constitutional and that Morrison deserved an even stiffer penalty.

The Appeal Court rejected both appeals.

In its ruling, the higher court said the law is clear in trying to protect children from adult predators. However, it agreed that presuming an accused knows a person is underage violates the presumption of innocence. It declared the section unconstitutional but upheld the conviction because it agreed Morrison had failed to take reasonable steps to ascertain Mia's age.

In upending the sentencing provision, the Appeal Court agreed Morrison had been ``indifferent'' to Mia's age rather than that he had communicated with her knowing definitively she was too young. The court also noted Gage's finding that Morrison was a man of otherwise unblemished character.

``As with all sentencing decisions, much will depend on the specific facts of the case and the circumstances of the offender and the nature of the offence at issue,'' the Appeal Court said. ``The disparity between the one-year mandatory minimum and what would otherwise be a fit and appropriate sentence for Morrison is sufficient to meet the high bar of gross disproportionality.''

In an interview with, Toronto criminal and constitutional lawyer Annamaria Enenajor says this ruling is the latest in a number of decisions that “reflect the reluctance of Canadian courts to permit the legislative branch of government to usurp core judicial functions. 

“The exercise of deciding on an appropriate and fit sentence is a highly discretionary exercise,” she says. 

“It is one that becomes fundamentally unfair when a minimum sentence is imposed in absence of facts regarding the circumstances of an offence and the actual blameworthiness of the offender.”

Enenajor, a lawyer with Ruby & Shiller Barristers and co-author of Sentencing, 9th edition, says mandatory minimums are reviled by courts committed to justice because they simply take away the ability of judges to define an appropriate sentence.

“There is a spectrum of conduct that would constitute the offence in this case, from the most heinous like the intentional and predatory victimization of vulnerable individuals, to a situation where an 18-year-old is convicted for arranging a sexual encounter through Craigslist with a 17-year-old,” she says. 

“Both facts may lead to a conviction, but fairness dictates that disparate sentences are likely appropriate. 

Mandatory minimum sentences took away the ability of judges to define an appropriate sentence based on the facts before them to such an extent that cruel and unusual punishment — defined as illegal under the Charter — might have resulted. This is why mandatory minimums are falling all across the nation.”

This decision means that “yet another vestige of the Harper government’s tough-on-crime agenda fails to pass constitutional muster," Enenajor says.

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