An SCC majority said the mandatory minimum sentences for the offences are no longer in force
The Supreme Court of Canada held in a 5-4 decision Friday that mandatory minimum one-year prison sentences for possessing and accessing child pornography are unconstitutional, stating that the offences cover a wide range of scenarios with varying levels of severity, including those for which one year’s imprisonment would be a “grossly disproportionate” punishment.
The scenario used by the high court majority to illustrate this point involves an 18-year-old with no criminal record who receives a text message from a friend of the same age. That message includes a sext from the friend’s 17-year-old girlfriend, which technically constitutes child pornography because of the girlfriend’s age.
In contrast, the dissenting justices argued that the mandatory minimum sentences for possessing and accessing child pornography are constitutional. The justices cited the high court’s 2020 decision in R. v. Friesen, which found that courts should impose tougher punishments for sexual crimes against children, and which the high court reaffirmed in a unanimous decision in September.
The majority’s decision in Attorney General of Quebec v. Senneville, et al. upheld rulings by the Quebec Court of Appeal and the Court of Quebec. Justice Mary Moreau wrote the majority opinion. Justices Andromache Karakatsanis, Sheilah Martin, Nicholas Kasirer, and Mahmud Jamal concurred.
Chief Justice Richard Wagner and Suzanne Côté jointly wrote the dissent. Justices Malcolm Rowe and Michelle O’Bonsawin joined in the dissent.
Stéphanie Pelletier-Quirion, one of the lawyers with Pelletier-Quirion Avocats who represented the two accused, told Canadian Lawyer that Friday’s decision “confirms the importance of challenging the minimum sentences in force in the Criminal Code when a wide range of acts can fall under the offence.”
She added that the decision “will give more strength to arguments to come on further cases of contested mandatory minimum sentences.”
In a statement, Lina Thériault, one of the prosecutors with the Directeur des poursuites criminelles et pénales in the case said, "Although minimum sentences for possessing and accessing child sexual abuse and exploitation material have been declared unconstitutional, our country’s highest court makes it clear that this finding is fully compatible with the recognition that sentences must reflect the highly reprehensible and damaging nature of these offenses against children."
One of the underlying criminal cases involves a man who pleaded guilty to one count of possessing child pornography and one count of accessing child pornography. In the second, unrelated case, another man pleaded guilty to one count of possession and one count of distribution.
At sentencing, both men told the Court of Quebec that the mandatory minimum sentence for possessing and accessing child pornography – one year’s imprisonment – was unconstitutional. The court found that the mandatory minimum sentences were “grossly disproportionate” when compared to what it considered as more appropriate sentences, which were briefer.
The Crown appealed, but the Quebec Court of Appeal dismissed the appeal. A majority of the appellate court found that the mandatory minimum sentences for both offences violate s. 12 of the Canadian Charter of Rights and Freedoms, which guarantees freedom from cruel and unusual treatment or punishment. The Crown appealed again to the SCC.
Writing for the high court majority, Moreau outlined the two-part test for determining whether a mandatory minimum sentence complies with s. 12 of the Charter. The first part of the test involves determining a “fit and proportionate” sentence for the offender, as well as other potential offenders, “in a reasonably foreseeable scenario.”
The second part of the test involves comparing the sentence determined at the first stage with the mandatory minimum sentence for the offence. The disparity between the two cannot be grossly disproportionate.
Moreau said this second, comparative part of the test requires the courts to consider three factors: the scope and reach of the offence, the effects of the penalty on the offender, and the penalty, including the balance struck by its objectives.
“It is essential to consider these three components in the same manner to ensure that a contextual and exhaustive analysis is conducted,” Moreau wrote. “The first two components focus on the proportionality of the sentence… The third component consists in determining whether the sentence is excessive in light of the legislative objectives of sentencing for the offence in question, having regard to ‘the legitimate purposes of punishment and the adequacy of possible alternatives.’”
Moreau added that each of the three factors “plays a distinct and necessary role in the analysis.”
The justice went on to say that the appeal in Attorney General of Quebec v. Senneville, et al. strictly concerns the constitutionality of mandatory minimum sentences for possessing and accessing child pornography. This is to be determined by examining how they could impact other potential offenders in “reasonably foreseeable scenarios,” which requires selecting a specific scenario for analysis.
Moreau said the scenario involving the teenagers sharing a sext is acceptable for this purpose, because it is foreseeable – sexting among teenagers is both “well known and documented,” the justice wrote. The scenario – which involves sharing a single image – also illustrates “the range of conduct caught by the crimes of accessing and possession of child pornography.”
“Although the acts committed by the representative offender are serious and deserve to be denounced, they fall at the lowest end of the gravity scale for the crimes of accessing and possession of child pornography,” Moreau wrote, adding that the appropriate sentence for the 18-year old offender would likely be a conditional discharge with strict probationary terms as opposed to a one-year prison sentence.
“Imposing a sentence of one year’s imprisonment on the young 18‑year‑old representative offender when a fit sentence would be a conditional discharge with strict probationary terms would constitute a grossly disproportionate sentence,” the justice said.
She declared that the minimum sentences set out in ss. 163.1(4)(a) and (4.1)(a) of the Criminal Code – which cover possessing and accessing child pornography – are contrary to s. 12 of the Charter, and are immediately of no force or effect.
In their dissent, Wagner and Côté said they would have allowed the Crown’s appeal. Referencing the high court’s decision in R. v. Friesen, the justices said, “Through the imposition of more severe sentences, the justice system expresses society’s deep and rightful indignation” at offences against children.
The justices said “grossly disproportionate” is a high standard for a sentence that can’t be met with sentences that are merely excessive, disproportionate, or unfit.
The dissent also took issue with the hypothetical scenario involving the texting teenagers that the majority chose in its constitutionality analysis, noting that the scenario selected must be “reasonable.”
“To be ‘reasonable,’ the hypothetical scenario cannot be an extreme example and must have more than a remote connection with the case. This requires that it have a sufficient factual and legal connection with the case before the court,” the justices wrote. “If a hypothetical scenario is not sufficiently related to the case in question, the court cannot consider it to determine the constitutionality of the impugned provision.”
The justice said the scenario did not meet this criterion.
“This suffices to end the s. 12 analysis,” the justices said. “We do not have to determine what a fit and proportionate sentence would be for the representative offender in a hypothetical scenario or to decide whether the impugned minimum sentences require the imposition of grossly disproportionate punishment.”
Angela Marinos, who serves as chief general counsel for the Raoul Wallenberg Centre for Human Rights, one of the intervenors of the case, said Friday she agreed with the minority’s assessment of the hypothetical scenario that the majority used in its analysis. She said she had urged the high court “to not choose the most sympathetic offender imaginable.
“In my view, making this choice implicitly loses sight of the child's interests,” she said. “Indeed, the hypothetical scenario of the 18 year old who is forwarded a sext from his friend is extremely different from the factual scenario here: namely, two adult men (one in his late 20s and the other in his 30s) accessing and possessing (in one case 317 images, and in the other case, 531 images and 274 videos) of little girls aged 3-10 subjected to sexual acts such as vaginal and anal penetration, fellatio.”
Marinos said following the decision, “Parliament will need to delineate narrower parameters of what access and possession mean, circumscribe the scope of conduct that will be captured by any mandatory minimum.
“We will see what actions, if any, Parliament takes in this regard.”
The Attorney General of Quebec did not immediately respond to a request for comment.
Editor's Note: This story has been updated with comments from Thériault.
