Charter challenge arises in child-porn case
Defence argues mandatory minimum sentence cruel and unusual because Nathan William MacKenzie, 39, of Geary, possessed few illegal images quite some time ago
A Geary man busted with child pornography in his home almost two years ago is seeking to challenge the constitutionality of a mandatory minimum jail term for his crime.
Nathan William MacKenzie, 39, of Colbourne Drive, was back in Fredericton provincial court Tuesday scheduled for sentencing for possession of child pornography.
He pleaded guilty in September to the offence, which occurred Feb. 25, 2022, in Geary.
But the case didn’t proceed to sentencing as expected Tuesday. Defence lawyer Edward Derrah recently filed an application challenging an aspect of the Criminal Code of Canada.
That federal legislation directs courts to impose at least one year in jail for convictions for indictable possession of child porn.
The defence is arguing that’s unconstitutional.
“The impugned provisions impose cruel and unusual punishment, that is, a grossly disproportionate sentence on the applicant, contrary to Section 12 of the Charter," the application states.
Among the grounds, it argues, are that MacKenzie's possession of the child pornography took place a considerable time prior to it being discovered "and there is no evidence he was continuing to access such material."
It also notes the number of objectionable images were minimal as compared to what's usual found in other such cases.
Prosecutor Rachel Anstey said given the defence’s application, the Crown was seeking an adjournment so it could prepare a response and counter-argument.
Judge Cameron Gunn scheduled a hearing on the application for Feb. 27, and he suggested the prosecution and defence file written briefs in advance.
Such challenges brought under the Charter have been common in Canadian courts in recent years, and there have been numerous decisions that have decreed that such mandatory minimum jail terms, even in cases involving sex crimes against children, do amount to breaches of Section 12 of the Charter.
Higher courts in Canada have found that such prescribed minimum terms mean sentencing judges can’t consider the specific circumstances of individual offenders and therefore can’t craft sentences that address the seriousness of offences, lesser gravity of some crimes and what the best sanctions or rehabilitative measures might be for separate criminals.
However, when courts have ruled such minimum sentences are unconstitutional, that hasn’t meant offenders are spared jail terms. In many cases, courts have found the minimum term sought by the Crown has been the appropriate penalty.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Cruel and unusual punishment???? We're talking CHILD PORNOGRAPHY!!!! This lawyer is really scraping the bottom of the barrel for excuses to lessen this guy's sentence.