Supreme Court strikes down mandatory minimum sentences for child porn

The Supreme Court of Canada has struck down mandatory minimum sentences for child pornography.

In a 5-4 decision, the Court found the mandatory one year for possession or accessing child sexual abuse materials violated the Charter because of certain hypothetical scenarios where such a sentence would be disproportionate, meaning that it should be of no force and effect.

Writing for the majority, Justice Mary Moreau said that when mandatory minimums apply to a broad range of situations, they can impose a grossly disproportionate sentence on certain offenders.

“The offences with which they are associated cover a very wide range of circumstances,” she wrote. 

“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.”

It was the latter scenario that the majority relied upon to determine that the sentence would violate section 12 of the Charter.

In the case of Louis-Pier Senneville, he pled guilty to one count of possession of child sexual abuse materials and one charge of accessing those materials. Mathieu Naud pled guilty to one count of possession and one count of distribution.

Both challenged the mandatory minimum sentences based on a range of hypothetical scenarios. One that the Supreme Court found compelling was that of an 18-year-old who had received an unsolicited text from a friend that forwarded a sext from a 17-year-old girlfriend, and kept it on his cellphone. 

The Court’s decision did not engage the appropriateness of the sentences in the cases at hand, but was focused exclusively on analyzing the constitutionality of the mandatory minimum sentences. In neither were they deemed to be cruel and unusual. After re-sentencing by the Court of Appeal, Senneville was given a one-year sentence, while Naud faced nine months for possession, plus 12 months on the distribution charge.

A reasonably foreseeable scenario

James Foy of Addario Law Group LLP in Toronto, who wrote the factum for the Criminal Lawyers Association as intervenors, says that while the headline may be dramatic, this is a continuation of the Court’s consideration of mandatory minimum sentences that started 10 years ago in Nur, and is a reasonably foreseeable scenario.

“The majority says that what we’ve been doing since Nur is the right approach,” he says.

 “They come up with reasonably foreseeable scenarios. They are not remote, they are not far-fetched, they are based on existing cases that have been through the system, and then they need to ask if the example is grossly disproportionate.” 

While the majority’s decision is essentially a continuation of the Court’s case law, Foy says the dissent takes a very different view of the jurisprudence, stating that what we’ve been talking about in matters since Nur is different with what the majority says.

The majority responds by suggesting the dissenters are trying to overturn Supreme Court case law without saying so.

Melanie Webb, a criminal defence lawyer in Toronto and the chair of the CBA’s criminal justice section, says that the Court’s decision applies to prosecution by indictment, as these are hybrid offences.

“If you’re using that reasonable hypothetical scenario, why would the Crown not proceed summarily?” she wonders. “It’s on the lower end of the spectrum in terms of the range of conduct.”

Webb notes that in the Bertrand Marchand decision two years ago, which was referenced several times in the current decision, the Court made it clear that in a hybrid offence, it can’t be left up to prosecutorial discretion whether it will proceed summarily or by indictment.

“They say very clearly that the Crown’s election should not determine whether or not the offender receives a fit sentence or an excessive sentence,” she says. “Justice Moreau does address that.”

Proportional punishment

Foy says that the majority’s decision is a reminder that if Parliament intends to pass a law capturing an extremely wide range of conduct, then a mandatory minimum sentence is going to be constitutionally suspect, as there are people who will fall outside of the “normal range.”

“We cannot be sending people to jail for a year if it’s not proportional to what they did,” Foy says, adding the majority noted that in a hypothetical scenario, a one-year jail sentence would do more harm to the 18-year-old.

It also cited a previous decision which said the courts are only one link in the chain of interventions meant to protect society. Further, it said there is no incongruity between emphasizing the severe harms of sexual offences against children while finding that mandatory minimum sentences are unconstitutional.

Foy notes that the majority has recognized the importance of not waiting for the perfect case to strike down a mandatory minimum sentence. Ultimately, that leaves an unconstitutional law on the books for longer, and means someone for whom it is grossly disproportionate may not have the resources to challenge it.

“What the Court is doing with the reasonably foreseeable analysis is telling Parliament that your crimes are going to capture these people. We need to consider whether this crime is constitutional for real people, even if it’s not the person before the court.”

Shakir Rahim, director of the criminal justice program at the Canadian Civil Liberties Association, which also intervened in the case, believes the Court reached the right decision in its analysis. While the majority and minority disagreed on how to approach the reasonable hypothetical scenario, he thinks the majority outlines a reasonable set of factors and makes a fair application of the test, using a fair and reasonable hypothetical scenario.

Rahim says it’s up to Parliament if it wishes to exclude a similar set of facts, as it’s empowered to do so.

“The CCLA has always maintained that any mandatory minimum sentence undermines the principle of proportionality at the heart of sentencing.

Not a victimless crime

Angela Marinos, chief general counsel at the Raoul Wallenberg Centre for Human Rights, which intervened in the case, appreciated the Court's acknowledgement that these aren't victimless crimes.

“We can’t just be paying lip service to the protection of children,” she says, adding she's interested to see whether Parliament will try to craft a new law.

Should that happen, there will be a fresh and robust debate. For instance, if Parliament insists on having a mandatory minimum, how does it circumscribe the parameters?

“Following this decision, they will have to narrow the parameters of what access and possession means so that you’re not capturing at this low-end of the spectrum.”

Webb says that the decision serves as a reminder that sentencing is a delicate and individualized exercise, underscoring the point that a one-size-fits-all approach is not useful, nor is limiting judicial discretion.

“The public should not come away with the impression that if you strike down the mandatory minimum sentences for these offences, then judges are going to be more lenient on offenders across the board,” she says. 

“That is not what happened here. This is not going to result in more conditional sentences or more suspended sentences across the board.”