Sentencing of accused convicted after trial of possession of child pornography. Crown proceeded by indictment. Illegal material included 26 images and 4 videos, but all were cartoons (anime) depictions. 25-year old accused assessed at a low risk to reoffend. Issue of whether 1-year minimum violates s. 12.
Held: minimum unconstitutional; 1 year CSO imposed.
Images at issue did not involve actual children, and the size of the collection was small, which distinguished this case from others. Accused obtained the images while downloading legal anime and did not know it was illegal. “The degree of gravity, coupled with the circumstances of the offence, in my view, make the one-year mandatory minimum sentence grossly disproportionate for Mr. Brittain. And I make the finding that in this case, Mr. Brittain’s section 12 right not to be subjected to cruel and unusual punishment would be violated by the imposition of the mandatory minimum sentence. And I decline to impose it.” Conditional sentence order of one year was fit.
B. Lotery – Defence Counsel