In a child-pornography case involving a 23-year-old intellectually disabled Burnaby man, a B.C. Supreme Court judge has ruled Canada’s mandatory minimum sentence for possession of child pornography is unconstitutional.
Matthew Christopher Swaby pleaded guilty to possession of child pornography in January 2015.
Almost a year earlier, the RCMP had detected a large number of suspected child pornography files downloaded to an IP address associated with Swaby between October 24, 2013 and January 12, 2014, when he was 23 years old.
He was arrested on Feb. 5, 2014, after police searched the Burnaby home he had been sharing with his mother and sister and found two computer hard drives belonging to him that contained a total of 480 images meeting the definition of child pornography.
The photos and videos depicted acts of sexual abuse of children as young as one-year-old.
The sentencing judge in the case called the acts depicted in the images “disgusting examples of the victimization of children,” but he ultimately ruled the minimum 90-day jail sentence for possession of child pornography in force at the time would constitute “cruel and unusual punishment” for Swaby because of his disabilities and mental health problems.
Swaby was then handed a four-month conditional sentence order and two years of probation.
The decision was appealed but upheld by B.C. Supreme Court Justice Leonard Marchand this month.
He said the 90-day minimum jail sentence was “grossly disproportionate” in Swaby’s case and violated his Charter rights.
(The minimum sentence is currently six months, after the previous Conservative government passed its Tougher Penalties for Child Predators Act in June 2015.)
Swaby, who has no previous criminal record, has an IQ of about 53, putting his intellectual functioning in range formerly known as “mental retardation,” according to one of two psychologists who tested him before sentencing.
The same psychologist concluded Swaby also showed signs of psychosis and depression, and raised concerns about his risk of suicide and his vulnerability to being victimized by other inmates if he were sent to jail.
Both psychologists who tested Swaby agreed he had pedophilic interests but not a pedophilic disorder and that his risk to commit a future sexual contact or child pornography offence was low.
They also agreed a jail term would likely increase that risk.
In upholding Swaby’s sentence, Marchand said sentencing decisions involving serious offences committed by people with “a reduced level of moral blameworthiness” are the hardest to make.
“Every day, courts across Canada grapple with the unique circumstances of parties with cognitive impairments and/or serious mental health issues in criminal, family, child protection and civil contexts,” he said.
He concluded, in Swaby’s case, a clear majority of Canadians would find a 90-day jail sentence “abhorrent and intolerable” if they were fully informed about the offence, Swaby’s personal circumstances and the goals of punishing people.
“They would reach this conclusion not out of a sense of compassion but as a result of Mr. Swaby’s reduced level of moral blameworthiness and low risk to re-offend,” Marchand said. “Their conclusion would be reinforced by the detrimental effect of any type of incarceration on Mr. Swaby. They would understand that, in the exceptional circumstances of Mr. Swaby’s case, denunciation, deterrence and protection of the public would be adequately addressed by Mr. Swaby’s incarceration in the community, his registration on the sex offender’s registry, and the other terms of his sentence.”
A number of mandatory minimum sentences introduced by the previous Conservative government in the so-called "omnibus crime bill" in 2012 have been struck down by the Supreme Court of Canada.
Mandatory minimums have been criticized by groups like the B.C. Civil Liberties Association for being ineffective and costly, and for taking away judges’ discretion to weigh all the evidence and decide on a fair sentence.
When the Liberal government came to power in 2015, newly appointed Justice Minister Jody Wilson-Raybould’s mandate letter included instructions to “conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade.”
