- Kira Davidson
- 5 hours ago
- 7 min read
This is the first 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 first interview of the series, Kira Davidson, Public Legal Education Coordinator with the CCS, spoke to Professor Lisa Kerr (Queen’s Law), who provides a breakdown of the judgment, an analysis of its “reasonable hypothetical” methodology, and some reflections on the path that Parliament might consider taking in response.
Q. Senneville has generated a lot of controversy, to the point where some federal politicians have talked about the need to override it via the notwithstanding clause. Getting beyond these initial political reactions, at least for now, can you walk us through what the Court actually said?
A. First, it’s important to note that the only issue before the Supreme Court of Canada was the constitutionality of the mandatory minimum sentences. The appeal was not about the individual sentences that were imposed, one of which had already been adjusted upwards by the Quebec Court of Appeal.
The majority decision affirmed that Parliament has the power to enact mandatory minimum sentences. The problem arises when mandatory minimums are attached to offences that cover a wide range of conduct, as is true with accessing and possessing child pornography. The majority was concerned with how these crimes capture everything from large-scale, organized offenders with thousands of files to someone who keeps a single unsolicited image. Because the offence covers such a broad spectrum, the mandatory minimum inevitably sweeps in conduct at the very lowest end of gravity, making it prone to being grossly disproportionate in at least some cases. That is why the provisions were struck down.
The majority focused on one reasonably foreseeable scenario to illustrate the problem, which was derived from the caselaw. An 18‑year‑old receives on his cell phone, from a friend of the same age, a “sext” originally from the friend’s girlfriend, who is 17 years old. The “sext” in question is a photograph of that 17‑year‑old that satisfies the definition of child pornography. The 18‑year‑old looks at and decides to keep the image on his cell phone.
Now, if this offender has no criminal record, the appropriate sentence would be a conditional discharge. This conduct is harmful, but it involves a young person accessing and keeping a sexual image of someone only a year younger than him. It sits at the very low end of the offence and reflects low moral blameworthiness. His youth, lack of a criminal record, and the fact he did not request the image would be important mitigating factors. And while denunciation and deterrence are always important for child-related offences, judges still have discretion to consider rehabilitation, personal circumstances, and other factors that reduce culpability. Here, treating imprisonment as the only reasonable sentence would be excessively harsh. Since it was foreseeable that the provisions would require cruel and unusual punishment, the majority found they were contrary to section 12 of the Charter.
Q. Senneville is the latest example of the Supreme Court basing invalidation of a mandatory minimum sentence on whether that sentence would be grossly disproportionate when applied to a “reasonable hypothetical scenario.” What’s the rationale behind this approach? And do you think it’s the approach that the courts should take?
A. In every single case in which the Supreme Court has struck down a mandatory minimum, going back to 1987, the Court has considered how the law could apply in general, not only how it applies to the individual offender before the court. Constitutional law experts are not scandalized by this — they point to Big M Drug Mart and other cases which have made clear that the Court’s job in the Charter era is to review the constitutionality of laws, not the status of single claimants. But I think because of the extreme politicization of sentencing policy, this is seen as controversial in the section 12 context.
There are a few rationales at play for courts to consider the foreseeable applications of the law. First, we can’t expect individuals faced with an unconstitutional law to have the resources or the will needed to challenge its validity. This reality means that the rule of law requires courts to perform their role of comprehensively reviewing the constitutionality of provisions it is applying. Another reason is efficiency and preserving judicial resources: adjudicating the issue once and for all rather than requiring a multiplicity of constitutional challenges across the country.
Finally, the majority in Senneville discussed how mandatory minimums can shape outcomes in plea bargaining. A guilty plea may be entered precisely to avoid triggering a mandatory penalty. The sentence to be imposed will appear to raise no constitutional issue, despite being influenced by a potentially unconstitutional law. The offender will be in no position to challenge the unconstitutional provision, which isn’t even being applied to him and will not be canvassed when he enters his plea. The Senneville majority articulates for the first time that this is a key part of why courts are justified in considering the potential for unconstitutional effects in reasonably foreseeable scenarios, rather than limiting themselves to only the facts of the individual case before them.
Q. The dissent in the case diverged from the majority not on whether the sentence would be disproportionate when applied to a reasonable hypothetical defendant, but on whether the proposed hypos were too “remote” from the facts of the specific case at issue. Can you summarize this disagreement?
A. The dissenting opinion in Senneville proposes a radical revision to the law in this area. It returns to the R v Goltz decision in 1991 in order to extract a new limit on the construction of hypothetical scenarios, which it said could be found in Gonthier J’s majority reasons. The dissent concludes that Gonthier J specified that there must be more than a “remote” connection between the hypothetical scenarios chosen and the case in question. This principle emerges very clearly, the dissent suggests, from the French version of Gonthier J’s reasons, which states: “Bien que la Cour se trouve inévitablement contrainte de prendre en considération des ensembles de faits qui diffèrent de ceux qui se présentent dans le cas de l’intimé, on ne saurait en prendre prétexte pour invalider des lois sur le fondement d’exemples extrêmes ou n’ayant qu’un faible rapport avec l’espèce.” The dissent concludes that there can be only one meaning given to the expression “n’ayant qu’un faible rapport avec l’espèce.” On a contextual and functional reading of Gonthier J’s reasons in both official languages, the dissent says the Court must look at the connection between the case before it, on the one hand, and the hypothetical scenario proposed by one of the parties to the proceedings, on the other.
I don’t contest the merit of the translation, but this has plainly not been the understanding of the law in the many section 12 cases handed down since Goltz in 1991. Indeed, the entire reason that the hypothetical methodology is controversial is because there is no such requirement in the law. Over decades, from Smith to Nur to Hills, there has never been a requirement of sufficient similarity between the hypothetical offender and the case before the court.
On this basis, the majority is very critical of this proposed revision to the law, saying that reasonably foreseeable scenarios have never required a close factual connection to the offender’s own circumstances, and that the “proximity” requirement proposed by the dissent contradicts longstanding section 12 jurisprudence. Multiple recent cases routinely relied on hypotheticals with weak factual resemblance to the actual offender. The term “remote” in Goltz has been understood to mean far-fetched or marginally imaginable, not “dissimilar to the offender.” The majority concludes that the dissent’s approach improperly narrows constitutional review by excluding valid low-gravity scenarios that fall within the minimum conduct of the offence.
The majority also identified how the dissent’s approach would undermine the principle that section 12 challenges examine the nature and reach of the law, rather than only the characteristics of the particular accused. In sum, the majority said that the dissent’s new proximity test deviates from precedent without justification, would neuter the reasonable foreseeability analysis, would risk leaving unconstitutional laws in force, and would particularly harm Indigenous offenders by excluding scenarios necessary to evaluate the systemic impacts of mandatory minimums. Given all of that, it is in my view very surprising that Senneville was one vote away from changing the law on this basis.
Q. How would you like to see Parliament respond to the Court’s decision? And more specifically, does the recently tabled Bill C-16 strike a reasonable balance between the Court’s concerns and the government’s objectives (and legitimate sentencing objectives more generally, such as deterrence and denunciation)?
I think mandatory penalties can have a legitimate role to play at times, perhaps in areas where judges may not be sufficiently attuned to an evolving understanding about the wrongfulness and harm of particular conduct. Consider the example of impaired driving, and how our understanding of that offence changed rapidly over the late 20th century. The problem is when mandatories require imprisonment and cover conduct that would not otherwise justify imprisonment. I think our courts are properly restrained when making use of the penalty of imprisonment. When mandatory minimums require judges to betray that restraint, they tend to generate constitutional problems.
I like the idea of presumptive mandatories in Bill C-16, although I expect that there will still be a fair bit of litigation on when a departure will be justified. And, it’s a bit strange that judges would still be required to impose a “term of imprisonment.” I see this as a political calculation — to express the sentiment that some offences simply require “real jail.” But are we going to see a performative situation where judges impose a single night in jail in some cases?
Q. Finally, what are your thoughts on the claim that the notwithstanding clause should be invoked in response to the Court’s decision?
A. I think the idea of using the notwithstanding clause so that a government can be free to mandate cruel and unusual punishment is extreme and unnecessary. Our courts can and do impose serious penalties for serious wrongdoing. Nothing in R v Senneville stops sentencing judges from imposing serious custodial penalties on offenders who commit these offences, subject to the statutory maximum of 10 years’ imprisonment. If a sentencing judge makes an error or imposes an unfit sentence, then the provincial Court of Appeal is there to review and correct that decision.
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Kira Davidson is the Public Legal Education Coordinator at the Centre for Constitutional Studies at the University of Alberta