The NWT Court of Appeal has upheld a judge’s ruling that in some instances, a mandatory minimum sentence of one year for making child sexual abuse material meets the definition of “cruel and unusual” punishment.
The issue arose during a case decided in 2025. John Dillon was charged by NWT RCMP and immediately admitted taking sexualized photos of a sleeping 17-year-old victim. It was apparent that the person had been touched and some clothing removed.
In reaching a sentence for Dillon, Judge Robert Gorin decided the minimum sentencing requirement set out in law – at least one year in jail – violated the Charter in ways that went beyond the case in front of him. Because of that violation, Gorin ruled the minimum could not apply.
Gorin ultimately gave Dillon a conditional sentence served in the community of two years less a day, followed by two years’ probation.
The Crown had sought two years less a day in jail. The judge said nine months in jail would have been appropriate for Dillon had a conditional sentence not been available.
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Though Gorin’s ruling related to Dillon’s sentence, it was not specifically about Dillon. Gorin said, for example, that the mandatory minimum of one year would not have been cruel and unusual in Dillon’s case.
But more broadly, the judge said, there were some reasonably foreseeable circumstances in which the mandatory minimum year-long sentence would be grossly disproportionate, meaning it should be set aside.
As an example, he suggested an 18-year-old who screenshots and saves a naked selfie taken by a 17-year-old partner despite promising not to. A year in jail for that act would be cruel and unusual, the judge found. He duly set aside the mandatory minimum as unconstitutional.
The conditional sentence was reached after the judge accounted for Dillon’s age, absence of a criminal record, Indigenous background and fetal alcohol spectrum disorder diagnosis.
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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.
Gorin found a conditional sentence would denounce Dillon’s actions and deter others from committing similar crimes, while optimizing the prospects for his rehabilitation and reintegration into the community. The judge described the case as a rarity in that a conditional sentence was more appropriate than a jail term for an act involving a sexual offence against a child.
The Crown appealed the judge’s decision. Last week, the appeal court sided with Gorin.
‘Not unfit’
The appeal court agreed there are some circumstances in which the mandatory minimum would “shock the conscience” – a stated legal threshold – matching recent rulings from the Supreme Court of Canada and Quebec’s top court that struck down similar minimums.
The appellate judges added they could find “no error in principle, failure to consider a relevant factor that had an impact on sentence, or an erroneous consideration of an aggravating or mitigating factor, that would justify appellate intervention.”
Appeal courts generally only intervene when they find a legal error or a demonstrably unfit sentence. In this case, the appellate judges found Gorin had carefully analyzed the sentence, acknowledged the crime’s severity, explained why he would make a rare exception to the standard course of sentencing, and replaced a shorter jail term with a much longer community sentence.
“The sentence imposed was correctly focused on the fundamental principle of proportionality, determined both on an individual basis and by comparison to sentences imposed for similar offences committed in a similar manner,” wrote judges Jo’Anne Strekaf, Kevin Feehan and Faiyaz Alibhai.
“The sentence in the present case is not demonstrably unfit.”
