B.C. child porn convict argues at sentencing that mandatory minimum is unconstitutional

Scales of justice. (Shutterstock)

Warning: This story contains descriptions of sexual offences that some readers may find upsetting.

A B.C. man has been sentenced to 30 months in prison for using hidden cameras to record his roommate's teenage daughter in the washroom, despite successfully arguing during his sentencing that the one-year mandatory minimum for the offence violates the Canadian Charter of Rights and Freedoms.

The offender, identified in court documents only as K.M. because of a publication ban intended to protect the identity of the victim, pleaded guilty in June 2021 to charges of making child pornography, voyeurism and failure to comply with an undertaking.

B.C. Supreme Court Justice Sheri Ann Donegan issued her decision on sentencing earlier this month. 

K.M. argued that the mandatory minimum sentence of one year in prison prescribed by the Criminal Code for those convicted of making child pornography violates Section 12 of the Charter, which prohibits cruel and unusual punishment.

He submitted that, rather than at least a year in prison, he should be sentenced to be "supervised in the community for up to five years through the imposition of a conditional sentence order, followed by probation," according to Donegan's decision.

Failing that, he argued he should face "a short period of incarceration," followed by a conditional sentence order and probation.

The Crown argued that the mandatory minimum sentence does not violate the Charter, and sought a prison sentence of 30 months.

THE OFFENCES

K.M.'s offences took place in Kamloops in 2019 and 2020. At the time, he was living with a roommate, L.H., and her daughter, identified in court documents only as Z.

According to Donegan's decision, L.H. contacted Kamloops RCMP in April 2020 after discovering a camera hidden in a shaving kit underneath the sink of the bathroom. She had discovered the camera after looking through K.M.'s phone, suspecting that he was up to something "untoward," and finding a "p2p live camera app installed on the device."

L.H. later found another camera hidden in the bathroom, this one installed in a hole in the ceiling of the shower.

In a statement to police, K.M. "admitted that he purchased two spy cameras online and took surreptitious videos of Z., who he knew to be 15 years old," according to the decision.

"He said that doing so made him feel alive after feeling dead due to sexual dysfunction," the decision continued. "He admitted to watching the videos he made when he masturbated. He insisted that he had not shared them with anyone else."

While Donegan found that K.M.'s early guilty plea, statements indicating remorse for his actions, and lack of related criminal record were mitigating factors in his favour, she found they were offset by aggravating factors, such as the "gross invasion of the victim's privacy," the harm he caused to her, and the lengthy period during which the offences took place.

"K.M.’s offences are subjectively and objectively grave," Donegan wrote in her decision.

"He repeatedly victimized a vulnerable child in her home over a long period of time … This child suffered actual harm and there is a reasonably foreseeable potential for future harm as well."

For these reasons, the judge concluded that 30 months in prison would be a "fit and proportionate sentence" for the crimes, regardless of the mandatory minimum.

THE CHARTER

On the question of the mandatory minimum, Donegan noted that B.C. courts have found most of the mandatory minimums prescribed for child-pornography-related offences to be unconstitutional.

She cited B.C. cases that found mandatory minimums for accessing, distributing and possessing child pornography to be "of no force and effect" because they violated Section 12 of the Charter.

K.M.'s case was the first to challenge the constitutionality of the mandatory minimum for making child pornography in B.C., Donegan wrote.

According to the decision, the Supreme Court of Canada prescribes a two-part test for determining whether a mandatory minimum sentence violates Section 12 of the Charter.

First, the judge must consider the particular case of the individual before the court. If the mandatory minimum sentence would be "grossly disproportionate" for the crime committed, such that it would "outrage standards of decency" and be considered "abhorrent and intolerable" by the Canadian public, then the mandatory minimum sentence is cruel and unusual punishment and violates the Charter.

Second, the judge must apply the same standard for determining if the punishment is cruel and unusual to a generalized case, represented by a hypothetical offender or offenders.

While Donegan concluded that the mandatory minimum sentence would not be "grossly disproportionate" in K.M.'s specific case, she considered two hypothetical offenders for which, she concluded, one year in prison would "outrage society's standards of decency."

The two hypothetical situations were borrowed from a 2020 Ontario Court of Appeal decision in which the three-judge panel determined that the mandatory minimum sentence for the offence of making child pornography was unconstitutional. 

In the first scenario, the court envisioned "an 18-year-old photographer who makes child pornography by taking non-consensual photographs while on a beach focussing on sexual areas of young women using a zoom lens without determining whether they are 18 years of age or under," according to Donegan's decision.

While this hypothetical offender has committed the crime of making child pornography, the Ontario judges concluded - and Donegan agreed - that a one-year sentence would be grossly disproportionate for the offence.

In the second scenario, the court imagined an 18-year-old offender who receives a sexually suggestive image from his 17-year-old girlfriend on Snapchat. He takes a screenshot of the image before it disappears, despite promising his girlfriend that he would not do so.

This hypothetical offender, too, has committed the crime of making child pornography, even if he did not share the image with anyone, because he did not have the victim's consent for saving the image, and therefore cannot claim a personal use exception, according to the court.

Donegan wrote that both hypothetical offenders are "reasonably foreseeable" cases that could come before the court in the future, and in both cases she concluded that one year in prison would be too harsh a punishment.

"I do not wish to be misunderstood and need to be clear that the conduct of these hypothetical offenders would be morally blameworthy and would be deserving of sanction," the justice wrote in her decision.

"It is only that the mandatory minimum sentence of one year is a sanction that, I find, would shock the conscience of Canadians and constitute cruel and unusual punishment."