Supreme Court striking down 1-year mandatory sentence for child porn possession prompts calls for Liberals to overrule
OTTAWA — Canada’s top court narrowly ruled Friday to strike down the one-year mandatory minimum sentence requirement for the possession and access of child pornography, after examining the punishment’s impact on a hypothetical 18-year-old involved in sexting.
The case, which was heard by a nine-judge panel, involved a challenge to the sentencing rules brought forward by two men in Quebec who pleaded guilty to having hundreds of images of children as young as three being severely abused.
At the heart of the debate was a scenario which was not based on the facts of the actual case but on another possible scenario, which led to a 5-4 ruling from the top court.
The majority ultimately found the one-year mandatory minimum sentences for the crimes to be unconstitutional on the basis that the crimes themselves cover a variety of circumstances, which could cross the Charter-protected right that guards against cruel and unusual punishment.
“This is the case for the crimes of possession of and accessing child pornography.”
A spokeswoman for Attorney General and Justice Minister Sean Fraser said the federal government was reviewing the decision.
“Crimes that exploit or abuse children are among the most serious and reprehensible in our society. Plain and simple: child abusers should face the toughest penalties Canadian law allows,” Lola Dandybaeva wrote in a statement on Friday.
The decision prompted swift backlash from elected conservatives across the country. On X, Saskatchewan Premier Scott Moe wrote that the ruling was why he believed “elected legislators, not unelected judges,” ought to make laws. Alberta Premier Danielle Smith and Ontario Premier Doug Ford called on the Liberals to keep the one-year mandatory sentence in place by using the notwithstanding clause, which would mean reintroducing the measure in legislation.
“These people are predators. Disgusting scumbags who prey on children belong behind bars for the rest of their miserable lives,” Ford wrote on X.
“The notwithstanding clause was designed to protect the will of the people. The federal government needs to use it to overturn this decision immediately.”
After initially saying the federal Conservatives would fight for stronger laws “using all tools available to us,” Opposition Conservative Leader Pierre Poilievre issued a statement late Friday vowing to reintroduce the mandatory sentence, should his party form the next government.
“My future government will reintroduce mandatory minimum sentences for possession of child sexual abuse material and ensure dirtbags like the ones before the court are in prison where they belong,” Poilievre said, adding on X that the Supreme Court ruling was “dead wrong.”
The notwithstanding clause is a section of the Charter that acts as an override function that can cover other sections, including those that protect legal rights. A fierce debate has broken out in recent years about the limits of its use.
The spokesperson for Fraser said the Liberal government was committed to introducing a set of measures Prime Minister Mark Carney campaigned on during the April federal election, aimed at better protecting children.
The case at hand found its way to the Supreme Court by way of Quebec’s Court of Appeal, which dismissed an earlier appeal from the Crown after it confirmed a court decision, which found the mandatory minimum sentences for the two child pornography crimes in violation of the Charter.
The two men who challenged the mandatory minimum sentences had pleaded guilty to possessing a combined 1,006 files containing images and videos of children between the ages of three and ten, being sexually abused by adults and other minors.
Neither man had a previous criminal record. One was a 28-year-old former soldier in the Canadian Armed Forces who was determined to have a low risk of reoffending, while the other was a man in his thirties, whose recidivism risk was flagged as “above average.”
The court heard that both men had expressed remorse. At the time of their sentencing in 2020, they each challenged the one-year imprisonment rule, which the judge allowed.
The mandatory minimum sentences for the offences in question have been in place since 2005 and were last increased under the former Conservative government of prime minister Stephen Harper back in 2015.
Writing for the majority, Moreau clarified that neither man was arguing that his sentence was cruel or unusual and that the appeal specifically dealt with the question of whether the mandatory sentence requirement was constitutional.
“ I agree with my colleagues that child pornography is a scourge that is profoundly wrongful and harmful towards children,” Moreau wrote.
The majority went on to say the challenge had to do with the circumstances under which the offences could occur, and did not change the seriousness of sexual crimes committed against children.
However, in the dissenting decision, authors Chief Justice Richard Wagner and Justice Suzanne Cote argued that the tougher sentencing rules reflected the harm done to child victims and advanced the goals of denouncing and deterring such crimes.
“Child pornography has unquestionably become a scourge both nationally and internationally. It destroys countless innocent lives. Each pornographic photograph, video or audio recording that involves a child is an act of exploitation that will leave the child with deep and lasting scars,” they wrote.
“Through the imposition of more severe sentences, the justice system expresses society’s deep and rightful indignation.”
Moreau, in explaining the majority’s decision, outlined how they arrived at their ruling by examining whether the minimum sentences for possession and access to child porn were constitutional, by considering hypotheticals, or, as the court puts it, “reasonably foreseeable” scenarios where they would be applied.
The circumstances that could lead to these offences were vast, the decision read.
“They capture both the well‑organized offender who, over the years, has accumulated thousands of files showing prepubescent victims, and the young 18‑year‑old offender who, one day, keeps and views a file showing a 17‑year‑old victim that was sent to the offender without them having requested it.”
In fact, this sexting scenario is what took centre stage in the debate, according to the decision, which cited at one point how the trend of sexting among teens was well-known.
“ In the age of digital communication, this scenario is not uncommon,” it read. The majority went on to say that in such a case, the best sentence could be a conditional discharge, making the requirement to hand down a punishment of one year’s imprisonment of “gross disproportionality.”
In their dissenting opinion, Wagner and Cote challenged the fact that the scenario in question was divorced from the facts of the actual case itself.
“The connection between this hypothetical scenario and the two cases before us is at the heart of this appeal.”
The ruling comes as the governing Liberals vow to crack down further on sentencing and bail conditions for serious, violent and sexual offences.
Last week, Fraser announced a new bill that would make it more difficult for some accused to get bail and toughen sentencing laws for serious and violent crimes. The new bill did not contain any changes to mandatory minimum sentences.
Since 2015, the Supreme Court has struck down a series of mandatory minimum sentencing laws, declaring them incompatible with the Charter of Rights protection against cruel and unusual punishment.
The most recent cases came in a duo of 2023 decisions called Hills and Bertrand Marchand in which the top court found that mandatory minimum sentences for discharging a non-restricted firearm into a house and child luring were unconstitutional because there were hypothetical scenarios in which the four-year and one-year (respectively) minimum terms were excessive.
“The Court concluded in both cases that the objectives of denunciation and deterrence cannot justify a mandatory minimum sentence that applies to an offence that captures a wide spectrum of conduct with different levels of moral culpability and that would have a deleterious effect on young offenders who have high prospects for rehabilitation,” reads a research note by the Library of Parliament .
– With files from Christopher Nardi
National Post
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