The Supreme Court of Canada ruled that the one-year mandatory minimum jail sentences for accessing or possessing child pornography are unconstitutional.Sean Kilpatrick/The Canadian Press
The members of Canada’s Supreme Court have such wonderful imaginations. They are able to look at the facts of a case – or a couple, as recently brought before them regarding prison sentences for accessing and possessing child pornography – and invent an entirely unrelated and far-fetched scenario in order to strike down a mandatory minimum sentence as unconstitutional. It’s an impressive exercise: one that risks undermining the legitimacy of the Court in the eyes of the public (or further undermining that legitimacy, depending on one’s perspective) with just one creative-writing assignment. Because if the Supreme Court can simply fabricate any scenario it wants, no matter how tenuously related to the actual case before it, and use that invented case to strike down law, then no law could possibly survive a Supreme Court challenge.
Supreme Court strikes down mandatory minimum sentence for child pornography
The cases recently brought before the Court involved two men who pleaded guilty to child-pornography offences, which carry a mandatory minimum sentence of one year in prison. Louis‑Pier Senneville, a 28-year-old former soldier, admitted to being in possession of 317 images of child pornography, mostly of young girls between the ages of three and six. Some of the images showed the girls being penetrated and sodomized by other minors and adults. Mathieu Naud, a loner in his 30s, admitted to being in possession of 531 images and 274 videos of child pornography, primarily of children between the ages of five and 10, who were also shown being subjected to various forms of sexual abuse.
The same sentencing judge presided over both cases. He deemed the mandatory minimum sentence of one year in prison a violation of Section 12 of the Charter of Rights and Freedoms, which protects against cruel and unusual punishment, and instead sentenced Mr. Senneville to 90 days imprisonment, to be served intermittently, for each of his two charges, and sentenced Mr. Naud to nine months in prison for possession and 11 months for distribution of child pornography. The Crown appealed the decision, which eventually made its way up to the Supreme Court.
That’s where the Court’s creative-writing exercise began. To assess the constitutionality of this type of mandatory minimum sentence, the majority engaged in what it called a “two‑stage contextual and comparative analysis” to determine whether the sentence is appropriate for both the offender in question, and other “reasonably foreseeable offenders.” In theory, the process makes sense: since mandatory minimum sentences apply to a range of offenders in a variety of scenarios, the Court will want to test that the mandatory sentence is not grossly disproportionate in some cases, even if it is appropriate in others. So, it uses a “reasonable hypothetical scenario” to test the constitutionality of the law, though the key word should be “reasonable.” As the dissent noted, “a reasonable scenario is not one that is far‑fetched, fanciful, unrealistic, outlandish, based on mere speculation or extreme, nor is it a remote scenario.” It should have some connection to the actual case before the court, it wrote.
But the majority didn’t do that. Instead, it invented a “reasonably foreseeable” scenario where an 18-year old receives a “sext” from his friend showing an image of a nude 17-year-old female, and keeps the image on his phone, knowing that it constitutes child pornography. The majority writes that a mandatory one-year prison sentence would be “grossly disproportionate” in that case.
Editorial: There can be no ‘yes, but’ for child porn
And sure, it would be. But it is also fantasy – unrealistic and outlandish, to borrow words from dissenting justices – that the 18-year-old would spend a year in prison under those circumstances. Police have discretion to lay charges in the first place, and even if they did decide to charge the 18-year-old, these sorts of hybrid offences allow the Crown to determine whether it is in the public interest to proceed summarily (which would result in a lesser sentence) or by indictment. In short, it is not reasonably foreseeable that the 18-year-old in this hypothetical case would actually spend a year in jail, and it is nutty, frankly, that the majority on the Supreme Court would use this scenario as the test of the constitutionality of the mandatory minimum sentence, when the actual cases before it were of men who possessed hundreds of images of small children being sexually violated in the most horrific ways.
The use of such spurious, flawed reasoning is embarrassing for our top court, and bad for our country. The issue is less about whether those guilty of certain child pornography offences ought to spend a minimum amount of time in prison as a matter of law (though certainly that can and should be debated) and more whether the justices on our Supreme Court are leaning on their imaginations – and little else – to strike down laws they don’t like. This decision suggests the latter, and that imagination is killing the integrity of the Supreme Court.