R. v. Walker

R. v. Walker

The 45 day mandatory minimum in ss.163.1(4) and 742.1 is not grossly disproportionate either as applied to Mr. Walker or in the reasonable hypothetical because the gravity of child pornography offences, Parliament's emphasis on denunciation and deterrence, the offender's circumstances and available mitigations...

Source-derived case information.

Citation
2017 BCSC 1301
Parties
Crown: Regina; Accused/applicant: David Walker
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
26 July 2017
Procedural Posture
Criminal Constitutional Challenge to Mandatory Minimum Sentence / Judgment on S.12 Charter Challenge (reasons for Judgment)
Outcome
Charter s.12 challenge dismissed; mandatory minimums upheld
Legal Topics
Mandatory Minimum Sentence, Possession of Child Pornography, Section 12 Charter, Reasonable Hypothetical
Source Language
english
Criminal Law Constitutional Law Charter Law Sentencing Mandatory Minimum Sentence Possession of Child Pornography Section 12 Charter Reasonable Hypothetical

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Parties

Regina

Crown

David Walker

Accused/applicant

Procedural Posture

Criminal Constitutional Challenge to Mandatory Minimum Sentence / Judgment on S.12 Charter Challenge (reasons for Judgment)

Legal Issues

  1. 1 Whether ss.163.1(4) and 742.1 of the Criminal Code violate s.12 of the Charter by requiring a 45 day mandatory minimum
  2. 2 Whether the 45 day mandatory minimum is grossly disproportionate as applied to Mr. Walker
  3. 3 Whether the 45 day mandatory minimum would be grossly disproportionate in reasonably foreseeable hypotheticals

Ratio Decidendi

The 45 day mandatory minimum in ss.163.1(4) and 742.1 is not grossly disproportionate either as applied to Mr. Walker or in the reasonable hypothetical because the gravity of child pornography offences, Parliament's emphasis on denunciation and deterrence, the offender's circumstances and available mitigations (earned remission, possible intermittent service) do not render the prescribed punishment so excessive as to outrage standards of decency.

Court Disposition

Charter s.12 challenge dismissed; mandatory minimums upheld

Orders

  • Defence Charter challenge dismissed
  • The 45 day mandatory minimum (s.163.1(4)) and application of s.742.1(b) precluding a conditional sentence are constitutional