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Charter - s.12 Cruel and Unusual Treatment or Punishment (3). Quebec (Attorney General) v. Senneville [mandatory minimum sentencing]
In Quebec (Attorney General) v. Senneville (SCC, 2025) the Supreme Court of Canada dismissed a criminal Crown sentencing appeal, this brought against a Quebec CA decision that held "the minimum sentence [SS: one year] provided for in s.163.1(4)(a) unconstitutional" ['Possession of child pornography'].
Here the court reviews mandatory minimum sentencing in the Charter s.12 ['cruel and unusual treatment'] context:A. The Two‑Stage Inquiry for Determining Whether a Mandatory Minimum Sentence Complies With Section 12 of the Charter
[38] The law surrounding the interaction between mandatory minimum sentences and s. 12 of the Charter has been the subject of much discussion in recent decisions of this Court. In order to determine whether a mandatory minimum sentence complies with s. 12 of the Charter, a two‑stage contextual and comparative analysis is required.
[39] The first stage consists in determining a fit and proportionate sentence for the offender in question “and possibly other reasonably foreseeable offenders” (Bertrand Marchand, at para. 104; see also Hills, at para. 40). This requires “careful adherence to established sentencing principles” (Bertrand Marchand, at para. 122). The analysis must therefore be carried out having regard to the sentencing objectives and principles established by the Criminal Code, whose central tenet is proportionality (s. 718.1 Cr. C.; Hills, at paras. 56‑61). This fundamental principle performs a limiting function (Hills, at para. 57; Bissonnette, at para. 51; Nasogaluak, at para. 42). It seeks to ensure that the sentence reflects — without, however, going beyond — the gravity of the offence and the moral blameworthiness of the offender (Nasogaluak, at para. 42; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37). As stated by LeBel J., “[i]n the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other” (Ipeelee, at para. 37). In this sense, “there is no proportionate sentence that only takes into account the offence and ignores the offender” (Hills, at para. 61). Judges must, at the first stage of the s. 12 analysis, exercise their discretion and determine with precision the sentence that is appropriate either for the offender before them or for an offender in a reasonably foreseeable scenario (paras. 63‑66).
[40] To properly understand the second stage of the analysis, it is important to remember that s. 12 of the Charter “is meant to protect human dignity and respect the inherent worth of individuals” (Quebec (Attorney General) v. 9147‑0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 51; see Hills, at para. 32). Human dignity cannot be respected through the imposition of a grossly disproportionate sentence, because it would have the effect of denying the intrinsic worth of the individual on whom it is imposed (see Bissonnette, at para. 59; Hills, at para. 32).
[41] The second stage of the analysis therefore requires a comparison between the sentence that was determined at the first stage and the mandatory minimum sentence. This involves assessing the extent of the disparity between these two sentences and determining whether that disparity is such that it meets the constitutional standard of gross disproportionality. It has been consistently emphasized that this standard is a particularly high bar (Lloyd, at para. 24; Bissonnette, at para. 70; Hills, at paras. 109 and 115). The comparative analysis must establish that the sentence is “so excessive as to outrage standards of decency” (Bertrand Marchand, at para. 109, quoting Hills, at para. 109). Put another way, the sentence must shock the conscience or be abhorrent or intolerable (Hills, at paras. 109‑10). This is assessed not on the basis of what a court believes to be the views of Canadian society, but rather “through the values and objectives that underlie our sentencing and Charter jurisprudence” (para. 110).
[42] To guide the courts in this comparative analysis, Hills stressed the importance of considering “three crucial components”: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (para. 122). These components were thoroughly explained by Martin J. (at paras. 122‑46) and will be applied below to the impugned minimum sentences.
[43] But before proceeding further, a clarification is warranted. My colleagues state that “once the court has selected a reasonable hypothetical scenario, the scope and reach of the offence are of little relevance” (para. 257). Respectfully, this statement is out of step with the case law of this Court noting that “[t]he scope and reach of the offence remains a major feature in the gross disproportionality analysis” (Hills, at para. 125). This principle was reiterated in Hilbach (at para. 52) and Bertrand Marchand (at para. 104) and follows from previous decisions on s. 12 of the Charter, including Lloyd (at para. 24), Nur (at para. 82) and Smith (at p. 1078).
[44] It is essential to consider these three components in the same manner to ensure that a contextual and exhaustive analysis is conducted. The first two components focus on the proportionality of the sentence; the first, relating to the scope and reach of the offence, is used to assess variations in the gravity of conduct and in the degree of culpability, while the second, relating to the effects of the penalty, is used to assess the severity of the sentence and to determine whether its “effect . . . is to inflict mental pain and suffering on an offender such that the offender’s dignity is undermined” (Hills, at para. 133). The third component consists in determining whether the sentence is excessive in light of the legislative objectives of sentencing for the offence in question, having regard to “the legitimate purposes of punishment and the adequacy of possible alternatives” (para. 138, quoting Smith, at pp. 1099‑1100). Each of these three components therefore plays a distinct and necessary role in the analysis. If little importance is given to the first component, it will not be possible to fully grasp the variations in the gravity of conduct and in the degree of culpability for the offence in question.
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VI. Conclusion
[118] For these reasons, I would dismiss the appeal. The minimum sentences set out in s. 163.1(4)(a) and (4.1)(a) of the Criminal Code are contrary to s. 12 of the Charter and are not saved by s. 1. They should be declared of no force or effect, with immediate effect, in accordance with s. 52(1) of the Constitution Act, 1982. . Quebec (Attorney General) v. Senneville [mandatory minimum sentencing]
In Quebec (Attorney General) v. Senneville (SCC, 2025) the Supreme Court of Canada dismissed a criminal Crown sentencing appeal, this brought against a Quebec CA decision that held "the minimum sentence [SS: one year] provided for in s.163.1(4)(a) unconstitutional" ['Possession of child pornography'].
Here the court summarizes the case:I. Introduction
[1] Canadian judges recognize that sentencing is a delicate exercise. Each sentence imposed is the result of an individualized process that seeks to answer the complex question: “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code?” (R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 36, quoting R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 80 (emphasis in original)). This complexity is inherent in sentencing law and is also at the heart of our jurisprudence on the right not to be subjected to any cruel and unusual treatment or punishment (s. 12 of the Canadian Charter of Rights and Freedoms). The resolution of this appeal once again requires a nuanced approach.
[2] The appellants challenge the declarations of unconstitutionality made by the majority of the Quebec Court of Appeal with respect to the mandatory minimum sentences of one year’s imprisonment provided for upon conviction for the offences of possession of child pornography (s. 163.1(4)(a) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”)) and accessing child pornography (s. 163.1(4.1)(a)).[1] Before this Court, the argument centred exclusively on the constitutionality of these minimum sentences by reference to situations other than those of the respondents.
[3] This appeal provides an opportunity to reiterate the importance of the possibility for the courts to consider reasonably foreseeable scenarios in the analysis under s. 12 of the Charter. This possibility can avoid invalid laws remaining in force indefinitely, prevent them from having indirect effects in the context of plea bargaining and promote legal certainty and real access to justice. In short, as this Court has consistently repeated, recourse to reasonably foreseeable scenarios is an essential tool for ensuring effective constitutional review.
[4] 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.
[5] 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 CanLII 64 (SCC), [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.
[6] 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.
[7] 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. The appeal should therefore be dismissed.
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