The appellant appealed his six-month sentence for accessing child pornography, arguing that the mandatory minimum penalty under s. 163.1(4.1)(b) of the Criminal Code violates s. 12 of the Charter.
The Superior Court of Justice allowed the constitutional challenge to be raised for the first time on appeal and found the mandatory minimum to be grossly disproportionate based on reasonable hypotheticals.
The mandatory minimum was declared of no force or effect.
The court varied the sentence to four months, less pre-sentence custody, to be served in the community via a conditional sentence order due to exceptional circumstances including the passage of time, the appellant's health, and the COVID-19 pandemic.
