Mandatory minimum sentence violates charter, judge finds

An NWT Territorial Court judge has found that the mandatory minimum sentence for a child sexual abuse material charge is “cruel and unusual.”

In a written decision published this week, Judge Robert Gorin ruled that the mandatory minimum sentence for the charge of making child pornography violates the Canadian Charter of Rights and Freedoms.

Under the criminal code, the charge carries a mandatory sentence of at least one year’s imprisonment, extending up to a maximum of 14 years imprisonment.

John Dillon, then 19 years old, was charged by Inuvik RCMP in May 2024. He pleaded guilty to one charge of making child pornography. Two additional charges of sexual assault and voyeurism by electronic means were withdrawn by the Crown.

The victim in the case, whose identity is protected by a publication ban, was 17 years old at the time.

Finding the mandatory one-year minimum sentence violated the charter, Gorin gave Dillon a conditional sentence, also known as house arrest, of two years less a day followed by two years’ probation.

While the criminal code uses the term child pornography, many organizations and advocates say the term child sexual abuse material better reflects the abuse and exploitation of children.

‘Grossly disproportionate’

During the sentencing hearing, Dillon’s lawyer, Jessi Casebeer, argued that the mandatory minimum sentence for the child sexual abuse material charge violates Section 12 of the charter.

That section states “everyone has the right not be subjected to any cruel and unusual treatment or punishment.”

Casebeer recommended that Gorin find the minimum sentencing requirement to be of no effect in this case and instead give Dillon a conditional sentence of 18 to 24 months. She cited Dillon’s young age, absence of a criminal record and his Indigenous background.

Crown prosecutor Morgan Fane argued that a sentence of two years less a day imprisonment was appropriate given the seriousness of the offence. He said the mandatory minimum sentence was not cruel and unusual, asserting that anything less than conventional imprisonment would be an unfit sentence.

In the particular case in front of him, Gorin found that a minimum sentence of one year’s imprisonment was not “so excessive as to outrage standards of decency.”

The judge described the crime as “very serious,” saying Dillon had betrayed a vulnerable victim for his own selfish gratification.

In a victim impact statement, the girl said the crime had resurfaced trauma and caused nightmares and anxiety.

However, Gorin found the mandatory minimum sentence was, more broadly, grossly disproportionate for the child sexual abuse material charge.

He noted the charge “can be committed in many different ways with widely diverging levels of seriousness” and said there have been other cases where courts have found the minimum sentence to be grossly disproportionate.

Gorin added that no appeal court had found the mandatory minimum sentence did not violate the charter.

Your crime ‘does not need to define you’

Gorin said this was “a difficult case” to decide.

He said child sexual abuse material offences are “pernicious and exceedingly harmful” and conditional sentences are “rarely appropriate” in those cases.

The judge said in this case, however, he believed incarceration was not the only option. He said a conditional sentence would denounce Dillon’s actions and deter others from committing similar crimes, while optimizing Dillon’s prospects for rehabilitation and reintegration into the community.

Gorin added that the conditional sentence he was imposing was longer than the period of imprisonment he would have ordered.

For the first year of Dillon’s sentence, he will be required to remain in his residence with several exceptions, including leaving to attend work or a medical appointment. For the second year of his sentence, Dillon will be required to remain in his residence from 9pm to 6am subject to the same exceptions.

Other conditions of Dillon’s sentence include having no contact or communication with the victim, completing 100 hours of community service, and neither possessing nor consuming illegal drugs or alcohol.

Dillon is also required to pay a $200 victim surcharge, which will go to the NWT’s victim assistance fund.

Gorin said he was “optimistic” Dillon would be able to abide by the conditions of his sentence, given he did not breach the court conditions he was under following his arrest.

“I hope that after you are done serving the conditional sentence and probation order that I have imposed, you are ultimately able to put this behind you,” Gorin told Dillon. 

“You are still very young and your crime definitely does not need to define you in the future.”