Criminal Law

Judges need flexibility to deliver sentence that fits crime

By Paul Russell, AdvocateDaily Contributor

Mandatory minimums lead to an imbalance in the justice system since they remove judicial discretion in sentencing, says Toronto criminal lawyer Sarah Malik, citing a 2018 Ontario Superior Court of Justice case where she helped to convince a judge that three such sentences were too onerous and violated the Charter.

“At the end of the day, every case is different, so judges need the flexibility to arrive at a sentence that suits the particular facts of an offence,” says Malik, an associate with Hicks Adams LLP.

“There will be circumstances where the mandatory minimum sentence is too severe, and if a judge is forced to impose it in those cases, that erodes our system of justice,” she tells

The 2018 Superior Court case involved sentences of one year for distributing child pornography, a two-year sentence for receiving material benefit from sexual services provided by a person under the age of 18 years, and five years for procuring a person under the age of 18 years.

Court documents state that a 16-year-old — who was kicked out of her family house for smoking marijuana and skipping school — met a man on a bus on her way to work, and after her shift, they met again. The next day, he offered to rent a hotel room for her if she would become an escort, with her supposedly keeping 60 per cent of the money earned. Another man took photos of her in underwear to use in online advertising for her services, which lasted approximately six weeks.

A jury convicted three men on the charge of receiving material benefit from sexual services provided by a person under the age of 18 years. Two were convicted for distributing child pornography and advertising sexual services, the judgment reads.

“We challenged the mandatory minimum sentences for these offences, arguing they violate s. 12 of the Charter, which states Everyone has the right not to be subjected to any cruel and unusual treatment or punishment,” says Malik.

According to the ruling, the judge referred to a 2018 Superior Court decision where the five-year mandatory minimum for procuring a person under the age of 18 years was found to be inconsistent with the Charter.

He also cited a 2017 Ontario Court of Justice decision, which found that the two-year sentence for the crime of material benefit from sexual services provided by a person under 18 years would be grossly disproportionate and is inconsistent with the Charter and the Criminal Code.

With respect to the distribution of child pornography, the judge criticized the mandatory sentence for failing to take into consideration factors such as the number of photos being distributed, the access people were given to the images and the exact nature of the photos.

Malik says she is encouraged these sentences were found to be unconstitutional.

“A sentencing decision should be made by the judge who can hear all sides of the argument and come to the most appropriate sentence based on the facts and the law itself, plus the aggravating and mitigating factors of that particular case,” she says.

Malik says some mandatory minimums have been tested in court and found to be fair, such as the life sentence for first-degree murder.

The Department of Justice website says there are 29 Criminal Code offences that carry such sentences.

“The future of mandatory minimum sentences in Canada remains unclear,” the website states. “There is some indication that minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits. Nevertheless, mandatory sentences remain popular with some Canadian politicians.”

“With mandatory minimums, we’re fostering a justice system that essentially creates an imbalance where people aren’t being treated fairly, as the severity of the offence may not reach the level envisioned by the legislation, says Malik.

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