- Kira Davidson
- 1 hour ago
- 9 min read
This is the second in a series of three expert interviews on the Supreme Court of Canada’s recent judgment in Quebec v Senneville — a judgment that elicited a great deal of public attention and controversy when it was released in October 2025.
In Senneville, the Supreme Court struck down two mandatory minimum sentencing provisions relating to possession and accessing of child pornography, ruling that these sentences violated section 12 of the Canadian Charter of Rights and Freedoms. In reaching this conclusion, the Court used the “reasonable hypothetical” approach that has become a standard part of its mandatory minimums jurisprudence, reasoning that the statutory minimum sentence of one year in prison would be grossly disproportionate if applied, for example, to an otherwise law-abiding 18-year old receiving a second hand sext from a 17-year old.
In this second interview of the series, Kira Davidson, Public Legal Education Coordinator with the CCS, spoke to Professor Steven Penney (University of Alberta, Faculty of Law), who provides an explanation of the purpose behind the “reasonable hypothetical” approach used by courts, some reflections on mandatory minimums and sentencing principles, and initial reactions to the legislative response that Parliament has undertaken with Bill C-16.
Q: Senneville is the latest example of the Supreme Court basing invalidation of a mandatory minimum sentence on whether the sentence would be grossly disproportionate when applied to a “reasonable hypothetical scenario.” Do you think this is the approach that the courts should take, or would it be better for courts to wait to invalidate laws when their application to a particular, non-hypothetical case is grossly unjust?
A: Well, I think it's a very close call. There are compelling arguments on both sides.
The prevailing approach of the Court is to use reasonable hypotheticals, and this flows from fairly foundational principles of constitutionalism and the rule of law, the idea being that if a law would inevitably violate someone’s constitutional rights under reasonably foreseeable circumstances, then we should strike that law down at the earliest possible opportunity. This incorporates concerns not only about those abstract principles of the rule of law, but also access to justice in terms of parties not necessarily always having the resources to mount constitutional challenges, or taking up valuable judicial and other legal resources to litigate these claims, the idea being that efficiency concerns and fairness concerns would dictate that where a law is clearly unconstitutional, and it applies to everyone, it should be struck down. And that’s the way we treat constitutional law generally: if the law on its face can be reasonably anticipated to violate someone’s rights, then anyone who has standing in the litigation that they find themselves in can argue for that law to be struck down.
Those are pretty compelling arguments, but the counterargument, which was first articulated in this particular context by Justice McIntyre and his dissenting reasons in the very first Supreme Court decision on section 12 — which is Smith, way back in 1987 — begins with a suggestion that those principles really turn on a fundamental policy concern, which is if you have an unconstitutional law on the books, especially one that prohibits conduct, then not striking it down at the earliest opportunity means that it’s going to potentially have chilling effects on people’s behavior, because they're going to be afraid that they will be, potentially, in the criminal context, arrested and charged or otherwise subject to the power of the state in circumstances where they ought not to have been. And this can affect people’s behavior in a negative way, by discouraging them from engaging in constitutionally protected conduct.
But that rationale doesn’t really apply in the same way to a sentencing provision. So, to talk about the Senneville case, which of course involved the sharing of child pornography, there’s no question that the prohibition on the distribution or possession of child pornography is wrongful and criminal. So, it’s clearly legitimate for Parliament to prohibit this activity, and so there really isn’t any chilling effect. There’s really no concern that people are going to be deterred or dissuaded from engaging in lawful, constitutionally protected conduct because this law is just kind of sitting there, waiting to be declared unconstitutional. I think that’s a pretty persuasive argument, and I don’t think the Supreme Court of Canada has countered it in a particularly compelling way.
But on balance, I think that the idea that where you have a law that we can be very confident is unconstitutional in its application to the world, and by extension, to any truly reasonably hypothetical offender, then I think the efficiency concerns and basic principles of the rule of law do require that law to be struck down. At the end of the day, I think I side with the majority on this point, but I think the dissenting view, the unorthodox view, has probably not been given as much credit as is due.
Q: Does the Court's judgment strike an adequate balance between the different values or objectives that are at stake in criminal sentencing, such as proportionality, deterrence, and denunciation?
A: That’s a difficult question to answer in the abstract. In one sense, the majority’s decision in Senneville doesn’t really affect the ability of courts to balance those different principles of sentencing. Ultimately, the most important principle of sentencing, the most fundamental one, is proportionality. And, to the extent that minimum sentences detract from courts’ ability to craft a fit and proportionate sentence, that’s, I think, a cost — that’s a downside. But the constitutional principle at work here is that the provision cannot be “grossly disproportionate,” because otherwise it would be cruel and unusual, and therefore in violation of section 12 of the Charter. So, the very fact that Parliament has the power to impose minimum sentences does have a negative effect on judges’ ability to tailor sentences to the individual circumstances of the case. That’s the downside, but there’s also an upside to having mandatory minimum sentences in terms of expressing Parliament’s desire, and by extension, ordinary people’s desire, to send strong messages about certain crimes that ought to be punished in a relatively severe manner, despite the preferences of individual sentencing judges. So that’s a balance that needs to be struck, and people can decide for themselves whether they think the Supreme Court's approach to mandatory minimum sentences meets that requirement for balance.
Q: In an op-ed published following the decision, you spoke about how Parliament could respond to the decision. You recommended that Parliament implement a requirement that judges impose the minimum unless offenders can prove it would be “grossly disproportionate” in the circumstances. In December, the federal Liberals tabled a bill (Bill C-16, the Protecting Victims Act) that seeks to do just that. What are your initial thoughts on this development?
A: Well, it’s interesting, because the government didn’t quite adopt what I and others have advocated, which is to allow for sentencing judges, when faced with a minimum sentence, to deviate from that in truly exceptional circumstances, where imposing the minimum would be grossly disproportionate — not just disproportionate, but grossly disproportionate — with respect to the individual offender before the court. So not a reasonable hypothetical offender, but the actual offender.
For the most part, I think that’s what Parliament is trying to do here, but it used different language, which I think is interesting and perhaps curious. So instead of saying sentencing judges can deviate when the minimum would be “grossly disproportionate,” they said they can deviate when the imposition of the punishment would be “cruel and unusual,” reflecting the actual language of section 12 of the Charter.
This is a bit strange, because “cruel and unusual,” we now know from the recent Bissonnette decision by the Supreme Court of Canada, has a broader meaning than just “gross disproportionality.” In other words, any sentence that is “grossly disproportionate” will, by definition, be “cruel and unusual.” But there are other types of sentences that are, broadly speaking, incompatible with the courts’ understanding of human dignity, which could also be found to be cruel and unusual. So, it seems as though section 12 is being interpreted now in a more open-ended fashion, beyond the limitations of gross disproportionality. And I think the standard that’s been set out for that so far, beyond “gross disproportionality,” is somewhat vague and indeterminate. And it’s possible — I'm not saying that this is likely or that it will happen — that some judges might use the leeway provided by that ambiguous terminology and by the Supreme Court’s jurisprudence to deviate from the minimum and attempt to justify not imposing the minimum, even when doing so would not meet the very high standard of gross disproportionality.
Whether that is going to happen, as I said, I don’t know. But whether this was done deliberately or otherwise, it does leave more room to avoid applying the minimum than I would have preferred.
Q: Are there any downsides to the approach that was taken in Bill C-16? In particular, does it do enough to counter the negative impacts that are often cited when discussing mandatory minimums, such as the over-incarceration of Indigenous and other marginalized offenders?
A: I don’t think there’s any question that critics of minimum sentences are correct insofar as they argue that it makes it more difficult for individual sentencing judges to tailor sentences based on the unique circumstances of the offender before them, including their Indigeneity and many other factors, as well as the unique circumstances of the offense. So, as I mentioned earlier, that is a legitimate downside to the use of minimum sentences. Were minimum sentences to be used for most criminal offenses, or a high proportion of criminal offenses, I think that would be a very serious problem. But there is another side to this, which is that many ordinary people believe that sentences are often too lenient and fail to fully express the revulsion and the denunciation that is warranted given the immense harms that many acts of criminality can cause to victims, families, and communities.
In my view, just as courts have to be careful in ensuring that sentences are proportionate and fit, and take into account the legitimate principles of sentencing, Parliament has a voice here as well. And there’s a degree of democratic accountability that Parliament is constrained by that courts are not constrained by in the same manner. There needs to be a balance between these countervailing forces.
So, while minimum sentences do constrain discretion, that’s not necessarily a bad thing. To the extent that peoples’ preferences regarding how sentencing should function finds expression within the sentencing framework, I think that’s entirely legitimate. Does that mean that people are going to agree as to the relative emphases of those two forces? Of course not. But I think we have to remember that defense lawyers and judges, civil society groups, and law professors tend to come from an elite stratum of society. They tend to have a particular view of what sentencing should be. I’m painting with very broad brushstrokes here, but I think that we see that reflected in the sentencing law, that there is kind of an elite consensus or quasi-consensus about the importance of the principle of restraint and individualized sentencing. And you can contrast that with the view of many people — not all, of course — who perhaps don’t belong to those socioeconomic classes, don’t have that specific legal training or background or high level of education, who feel this person did something terrible and deserves to suffer. And society has a strong interest in ensuring that there’s accountability and true punishment — retribution, even — for acts that cause so much harm to the community. And that’s legitimate, in my view, within certain bounds.
To sum it up, I would say that those who are in a position to craft the law and to interpret the Constitution have to be cognizant of that tension. It doesn’t mean that they have to go all the way on one side or the other. In fact, I’m counseling for something other than that; the opposite of that. But I do think that the judges and critics who dislike minimum sentences have paid insufficient attention and given insufficient weight to the legitimate concerns of ordinary people when it comes to sentencing for serious crimes.
Q: In the aftermath of the Senneville judgment, there was a lot of discussion about whether Parliament should invoke the notwithstanding clause to override the decision. This isn't the first time we've heard calls for a federal notwithstanding invocation in the criminal law field (the last was in response to the SCC’s Bissonnette decision). How close do you think we're getting to a first federal invocation, and is it concerning if the clause is used for criminal law?
A: Well, I don't think I can answer that in the abstract, I think it would depend on the context.
In terms of the political reality of our current moment — and of course, this could change — but under the current political dynamic that we see in Canada, I think it’s extremely unlikely for a Liberal government to invoke the notwithstanding clause federally.
I think it would take a very, very extreme decision from the courts, and in particular the Supreme Court of Canada, one that is just unbelievably unpopular, and generates just a tremendous amount of public criticism. And there I could see the Liberal government perhaps at least giving some consideration to using the notwithstanding clause, but very clearly, the Carney government and the Liberal Party have been extremely reluctant to even contemplate the use of section 33, and so I don’t think that's very likely. Now, of course, if there’s a change in government, and in particular if the Conservatives win, whether under Pierre Poilievre, the current opposition leader, or some other leader, then I think the equation just changes dramatically. And in fact, it would surprise me if the notwithstanding clause were not invoked by a future Conservative government, again, given current political conditions.
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Kira Davidson is the Public Legal Education Coordinator for the Centre for Constitutional Studies at the University of Alberta