Background:

Pornography showing young children forced into in sexual activities is absolutely disgusting. Anyone convicted of creating or possessing child pornography should be sentenced to appropriately severe penalties.

Canada’s Criminal Code had a mandatory one-year minimum sentence for accessing and possessing child pornography. Two convicted offenders (Senneville and Naud) were sentenced under this provision. The sentencing judge had declared that “the mandatory minimum sentences of 12 months’ imprisonment …. are inoperative with respect to the accused, [and are] unconstitutional …”. 

The Quebec Court of Appeal increased Senneville’s 90-day sentence to 12 months, but left Naud’s 9 month sentence unchanged. It also struck down the mandatory minimum law as being unconstitutional. The case then went to the Supreme Court of Canada (SCC).

On October 31, 2025 the SCC issued its Senneville decision. The five judge majority also held the mandatory minimum to be unconstitutional under Charter section 12, the protection against cruel and unusual punishment.

Alberta Premier Danielle Smith was so upset by this decision that she used the notwithstanding clause in Charter section 33 to preempt a constitutional challenge to a controversial new law her government was enacting.  And Ontario Premier Ford, in his outcry that the two offenders should have been imprisoned for life, urged Ottawa to overrule the Court, using s. 33.  

The Avalanche of Criticism:

The SCC decision provoked an avalanche of criticism, as if the Court was unconcerned about child pornography. Criticism included a Globe & Mail editorial; comments that the Court had no right to soften child porn laws; that its decision prompts calls to overrule using the notwithstanding clause; and that the Court showed its imaginary idea of justice. I agree that the SCC decision was wrong, but for somewhat different reasons. 

A Breach of Basic Principles:

There are two long-standing principles in common law countries like Canada. First, a court should decide no more than is necessary to resolve the case before it; and second, it should do so only on the actual evidence before it. I respectfully disagree with the SCC because it decided an unnecessary question about the constitutionality of the law itself, rather than considering the sentences imposed on the two accused, and it did so using hypothetical scenarios rather than the evidence used in sentencing.

Inventing “reasonable hypotheticals” is creative and fun, but using them to strike down laws is  not adjudication, it is judicial legislation. Fundamentally, there is no such thing as a reasonable hypothetical because using hypotheticals for this purpose is unreasonable.

What Was the Issue at the SCC?

The appellants at the SCC were the Attorney General of Québec and His Majesty the King (i.e. Canada), not the two offenders. The issue on the appeal was exclusively the constitutionality of minimum sentences, not the appropriateness of the sentences imposed on Senneville and Naud. Furthermore, the Court’s analysis was limited to hypothetical offenders in “reasonably foreseeable scenarios”.

The key hypothetical scenario was “the least offensive offender”: What if an 18 year old photographed himself having sex with his 17 year old girlfriend and texted it to his 18 year old friend, who kept the photo on his phone? That friend, if convicted of possession, would be sentenced to one year. As that sentence would be grossly disproportionate for such a minor offence, the majority held that this minimum sentence is unconstitutional. But that was not this case, it was purely hypothetical.

Remember that a judge’s job is to decide only the actual question in issue before the court, using the evidence in the court record.  Adding the Charter to our Constitution didn’t change the judicial job description.

As the four dissenting justices wrote:

[188]     It is worth noting that, up to now, each time this Court has declared a minimum sentence unconstitutional, it has done so on the basis of a hypothetical scenario and not on the basis of the circumstances of the offender before it.

Using hypotheticals has created ‘no fault unconstitutionality’.

Parliament had increased the minimum sentence in the last three versions of this law from 45 days to six months to one year, showing that Parliament was aware of, and dealing with, the adequacy of sentencing for these offences. The SCC’s needless overruling was a blow to Canada’s constitutional separation of powers, provoking sharp criticism by provincial premiers.

There Are Better Approaches:

Mandatory minimums are politically popular because they show that the politicians are “tough on crime”. However, minimums are a one size fits all penalty that eliminates individualized proportionality, the fundamental principle of sentencing. They also encourage constitutional challenges because one extremely unlikely hypothetical can render the entire provision unconstitutional.

The alleged benefit of using hypotheticals is that it allows a court to identify an unconstitutional law earlier. But in this case the SCC overruled Parliament after it had reviewed and twice  increased the minimum sentence. Our top Court should show less enthusiasm for declaring unconstitutional that which is doubtfully so.

A better judicial approach is to decide each case on its facts. If, in a specific case, the accused’s rights would be unjustifiably infringed by imposing a minimum sentence there is nothing wrong with finding that Charter s. 12 applies to this case.  In other words, decide whether imposing this minimum sentence on this offender would be a cruel and unusual punishment.  If so, the sentence imposed should be less than the mandatory minimum. There is no need for hypotheticals, and no Charter baby should be thrown out with the hypothetical bathwater.

A better Parliamentary approach is using sentencing guidelines or handbooks rather than mandatory minimums. In the US, the Federal Sentencing Guidelines are advisory. Federal judges consult a detailed table of recommended sentence ranges, but they may deviate, with reasons. In the UK the Sentencing Council issues ‘binding’ guidelines for judges, but they allow departures “in the interests of justice.” Parliament should consider enacting formal advisory guidelines, as in the US or the UK, in cooperation with the judiciary.

Conclusion

The constitutionality of any Canadian law is now being determined by nothing more than the judicial imagination of hypothetical scenarios, fed by the imaginations of the lawyers working on the case. With this method of judging it will be exceedingly difficult to draft any criminal or regulatory law that cannot be invalidated through such exercises of collective imagination.

Scenarios aren’t facts, they are merely the creations of human imagination. Let’s stop using scenarios and get back to real adjudication. And Parliament should provide sentencing guidelines rather than mandatory minimums, trusting judges to apply them appropriately.

These better alternatives would help restore judicial restraint and constitutional stability, making constitutional cases like Senneville both unnecessary and unlikely. Then Premiers Smith and Ford can relax about judicial overreach.