Jamie Sarkonak: It is a joke to say Liberal crime bill protects victims

In his bill designed to “keep kids safe from predators,” Justice Minister Sean Fraser has proposed that Canada get rid of the six-month minimum for rape of a child under 16 — and every other minimum on the books other than for murder and treason.

It’s one of several problematic provisions buried in the middle of Bill C-16, which Fraser jubilantly tabled Tuesday. And to be fair to him, the bill isn’t completely bad: it would criminalize deepfake and bestiality porn, would make child sextortion a crime that comes with a minimum of one year in jail, and would supposedly make charges a little harder to kill when a trial runs over deadline. Those changes are very welcome.

But Bill C-16 contains a number of redundancies that make it seem bigger than it really is. It would also criminalize the act of controlling one’s intimate partner — something that is riddled with practical problems because it could mean throwing people in jail for being in toxic, but not physically abusive, relationships. And worst of all, again, it would undermine the entire notion of a mandatory minimum.

The offending clause reads as follows: “When imposing a sentence for an offence that has a minimum punishment of a specified term of imprisonment, a court shall impose a shorter term of imprisonment than the specified term if, in the circumstances, the minimum punishment would amount to cruel and unusual punishment for that offender.”

In other words, if Parliament’s baseline jail term for any particular crime feels too extreme, a judge can simply explain why they think so and decide on a new minimum. Another clause states that the new, shorter-than-stipulated jail term counts as the new mandatory minimum for a crime. The bill essentially gives judges the power to legislate new, lower minimum sentences as they see fit.

An exception is provided for any crime with a minimum of life in prison: first- and second-degree murder, as well as treason.

This is a terrible step down from the status quo. Currently, it’s possible for judges to strike down a mandatory minimum sentence if they can imagine a hypothetical scenario in which the legislated minimum would seem unfair. But that’s a matter of constitutional law that notionally has a high bar.

Fraser’s amendment proposes to pull that bar down and makes striking down a minimum sentence part of the normal working of the machine that is the Criminal Code. No longer would it be a constitutional question worthy of national notice. Taking the constitutional weight away from questions of minimum sentence trivializes the act of undercutting the written law, and is certain to lead to more judicial tampering.

Indeed, when judges undercut a “mandatory” minimum sentence under this new regime, we won’t even be able to say that they’re flouting Parliament’s directions. If Bill C-16 is passed, Parliament’s orders will be converted into suggestions.

It was just in October that the Supreme Court of Canada knocked down the mandatory minimum of one year in jail for possession of child pornography on the basis that, hypothetically, it could unfairly land an 18-year-old whose friend sends him a nude image of a 17-year-old. Granted, I would think such a sentence is unfair, too. But that wasn’t the situation before the court.

The court was actually deciding whether one Louis‑Pier Senneville could legitimately receive a pathetic three months in jail for his collection of hundreds of files showing “young girls between 3 and 6 years of age, some showing victims being subjected to acts of penetration and sodomy committed by adults and minors.” And whether one Mathieu Naud could be given nine months for his 800-file stash of mostly “children from 5 to 10 years of age being subjected to sexual abuse, such as fellatio and vaginal and anal penetration, by adults.” Quebec courts figured those were acceptable sentences, and appallingly, a majority of the Supreme Court agreed.

But that was at least a constitutional matter, and the perverted results were entirely a creation of morally dilute courts. Fraser’s amendments wouldn’t prevent this — instead, it would give such out-of-touch decisions the pre-approval of the legislature.

Undermining Parliament’s will in criminal sentencing is a fairly routine practice of the judiciary — but that’s no reason to make it more frequent. Instead of showing some leadership as the minister responsible for justice and order in the country by invoking the notwithstanding clause to ensure these minimum sentences stand, Fraser has decided to give judges an “Override Criminal Code” button.

It’s laughable that Fraser is casting his bill as a grand help to victims when it also proposes to transform every mandatory minimum that still stands into an optional floor. One month in jail will no longer be guaranteed for the crimes of exposure and providing porn to a minor; six months will no longer be guaranteed for internet luring and bestiality; five years will no longer be guaranteed for first-time extortionists and first-time gun-toting robbers.

If passed in its current form, Bill C-16 will pave the way to even more unaccountability for vile assaults on public order. A temporary worker convicted of child luring on the internet whose deportation would devastate his family could potentially be eligible for a sentence discount; a gunman with a sob story who robs a Toronto store owner at gunpoint the day after his 18th birthday could get away with a light slap on the wrist.

Do not mistake it for being tough on crime.

National Post