The Supreme Court of Canada upheld a decision by the Quebec Court of Appeal that struck down the mandatory minimum sentence for child pornography crimes.Adrian Wyld/The Canadian Press
Louis-Pier Senneville admitted to having 317 images of children, as young as three years old, being sexually violated in the most vile ways imaginable. The 28-year-old accessed those images over a 13-month period.
Mathieu Naud, in his thirties, admitted that he had possessed, for 13 months, 531 images and 274 videos of child pornography, most of which depicted children between the ages of 5 and 10. Both men pled guilty to child pornography offences.
The Criminal Code stipulates a minimum one-year sentence upon conviction for the indictable offences of accessing, possessing or distributing child pornography. But the trial judge believed that to be too harsh a punishment: Mr. Senneville received an intermittent sentence of 90 days, which would have required him to spend just 30 weekends in prison. Mr. Naud was handed a nine-month sentence.
And how did the judge justify his decision to ignore the clear wishes of Parliament (and public opinion)? He ruled a prison term of one year would be “grossly disproportionate,” for instance, to the 90-day sentence that the judge had just conjured out of thin air. (That legal phrase describes a punishment so severe as to shock the conscience of Canadians.)
The Crown appealed those sentences. Mr. Senneville’s sentence was increased to a year, but in doing so, the Quebec Court of Appeal struck down the mandatory minimum sentence for child pornography crimes. And, last week, the Supreme Court upheld that decision by the narrowest of margins, in a 5-4 split.
The top court determined that a mandatory sentence of a year would be grossly disproportionate. But it did not do so by considering the crimes of Mr. Senneville or Mr. Naud.
Instead, its ruling was based on a “reasonable hypothetical scenario” (a legal analysis that Canadian courts have used for decades). In that imagined scenario, an 18-year-old man forwards an explicit image of his 17-year-old girlfriend to his 18-year-old male friend, who looks at the photo briefly, but knows it is child pornography.
It would be grossly disproportionate to sentence the second 18-year-old to a year in prison, the Supreme Court majority ruled – making mandatory minimums unconstitutional for any child pornography offender.
Hearteningly, the vigorous dissent, co-authored by Chief Justice Richard Wagner, lays out a counterpoint: that the scenario of the 18-year-olds was an “extreme example” designed to create the most sympathetic offender possible. (A piece of common sense that we would second.) The minority would have upheld mandatory minimums for child pornography.
Canadians might be forgiven for thinking that going easy on child pornography offenders is the true shock to the conscience. And several politicians, including Conservative Leader Pierre Poilievre, called for the use of the notwithstanding clause to reinstate mandatory minimums.
Such an unprecedented move would be premature. There are possible legislative remedies. One possibility is to more tightly define the child-pornography offence so as to exclude the far-fetched example that the court used to strike down mandatory minimums. That could prove tricky to do, without opening up inadvertent loopholes.
Another option (and one mentioned in the ruling) would be to preserve the mandatory minimum but allow a “safety valve” that would give judges discretion to find that it would be grossly disproportionate to sentence the offender appearing before them to at least a one-year prison term.
On its face, that seems a reasonable approach. Parliament should amend child pornography laws in order to preserve mandatory minimums for those who have committed crimes that truly shock the conscience of Canadians. But the success of that effort would depend on the judiciary accepting that Parliament has a right to heavily sanction child pornography offenders.
The Supreme Court would do well to heed the advice of its chief justice, who noted in the dissent that the “integrity of the justice system and public confidence in the administration of justice” are damaged when the court strikes down laws using remote examples.
Of the many wise points made in the dissent, that may be the wisest. The justice system depends upon that public confidence.
Without that confidence, the use of the notwithstanding clause at the federal level is simply a matter of time.