Quebec (Attorney General) v. Senneville, 2025 SCC 33 (40882)
“S pleaded guilty to one count of possession of child pornography and to one count of accessing child pornography, offences set out in s. 163.1(4)(a) and s. 163.1(4.1)(a), respectively, of the Criminal Code. In a separate case, N pleaded guilty to one count of possession of child pornography. At the sentencing proceedings stage, they both challenged the constitutionality of the minimum sentences facing them.
The judge who sentenced S and N found that the mandatory minimum sentences of one year’s imprisonment associated with the offences of possession of child pornography and accessing child pornography were grossly disproportionate in comparison with the appropriate sentences for S for those offences and for N for the offence of possession of child pornography. He declared that those minimum sentences were of no force or effect against S and N and that they were unconstitutional under s. 12 of the Charter. The Court of Appeal also found that the minimum sentences violated s. 12 of the Charter, by reason, however, of their reasonably foreseeable application to offenders other than S and N, and that they were of no force or effect under s. 52 of the Constitution Act, 1982.”
The SCC (5:4) dismissed the appeal.
Justice Moreau wrote as follows (at paras. 4-7):
“By assessing a reasonably foreseeable scenario put forward by the parties, I come to the conclusion that the minimum sentences set out in s. 163.1(4)(a) and (4.1)(a) violate the protection against cruel and unusual punishment guaranteed by s. 12 of the Charter. While the teachings of R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, are fully applicable to child pornography offences, which often warrant the imposition of severe penalties, it must be recognized that these offences can be committed in different ways, under different circumstances and by different offenders.
Our case law is categorical: a mandatory minimum sentence does not necessarily violate s. 12 of the Charter (R. v. Hills, 2023 SCC 2, at para. 38; R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1077). However, when the application of a mandatory minimum sentence is broad and covers a wide range of circumstances, the sentence is “constitutionally vulnerable” (R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 3; R. v. Hilbach, 2023 SCC 3, at para. 52) because it leaves no choice but to impose a grossly disproportionate sentence on certain offenders.
A thorough analysis reveals that this is the case for the mandatory minimum sentences contested in this appeal. The offences with which they are associated cover a very wide range of circumstances. 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.
This last reasonably foreseeable scenario was at the centre of the debate before this Court. The facts of this scenario “are . . . captured by the minimum conduct caught by” (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 68; Hills, at paras. 79‑80 and 83) the offences of possession of child pornography and accessing child pornography. In the age of digital communication, this scenario is not uncommon, and no aspect of our jurisprudence justifies excluding it for the purposes of the analysis under s. 12 of the Charter. In light of the principles of sentencing, the appropriate sentence for such an offender could be a conditional discharge. The disparity between this non‑carceral penalty and the mandatory minimum sentences of one year’s imprisonment easily meets the constitutional standard of gross disproportionality. The impugned minimum sentences thus violate s. 12 of the Charter, and the appellants did not argue that they can be saved by s. 1″