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The Supreme Court’s ruling against mandatory-minimum jail sentences for some child-pornography crimes has garnered disagreement from Canadian politicians including Conservative leader Pierre Poilievre and Premiers Doug Ford and Wab Kinew.Sean Kilpatrick/The Canadian Press
The Supreme Court of Canada’s controversial ruling against mandatory-minimum jail sentences for some child-pornography crimes has shone a harsh spotlight on how the top court weighs the law in such cases.
The 5-4 decision on Oct. 31 – with Chief Justice Richard Wagner co-writing the dissent – led a range of political leaders across the country to lambaste the ruling.
Federal Conservative Leader Pierre Poilievre, as well as Ontario Premier Doug Ford, said the federal government should use the Constitution’s Charter of Rights and Freedom’s notwithstanding clause to override the court judgment.
Wab Kinew, NDP Premier of Manitoba, spoke aggressively of how such offenders should be punished: “They should bury you under the prison.”
Justice Minister Sean Fraser last Tuesday said the notwithstanding clause was not necessary. “We are going to fix the gap,” he said to reporters.
Robyn Urback: The Supreme Court used a far-fetched hypothetical to axe minimum sentences for child pornography
Earlier: Ottawa calls on Supreme Court to clarify the law around use of Charter’s notwithstanding clause
The clause allows governments to override some sections of the Charter to shield laws from legal challenges. Since the late 2010s, some conservative-led provinces have actively used the clause in various laws; Ottawa has never used it.
The case at the top court was rooted in the conviction of two men in Quebec for possessing hundreds of images of child pornography, some of which showed brutal sexual abuse of young children.
The key legal issue, however, was whether a mandatory-minimum punishment of one year in jail for possessing or accessing child porn was constitutionally sound.
The Supreme Court narrowly declared that it was not.
The ruling reveals a continuing philosophical divide at the country’s top court about mandatory minimums and the tool the court uses to determine whether they are unconstitutional. It also represents a relatively rare example of the Chief Justice joining a dissenting opinion.
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Chief Justice of Canada Richard Wagner in June, 2025. Mr. Wagner, who co-wrote the dissent, was unable to convince another colleague to vote with him, resulting in the 5-4 decision.Sean Kilpatrick/The Canadian Press
Ruling the minimum unconstitutional is based on Section 12 of the Charter, which protects Canadians from cruel and unusual punishment inflicted by the state and can be overridden by the notwithstanding clause.
But the decision didn’t focus on the convicted offenders in Quebec and rested on a reasonably foreseeable hypothetical scenario used by the Supreme Court. The majority envisioned an 18-year-old who receives an image that could be considered child porn from a friend, a picture of that friend’s 17-year-old girlfriend.
The Supreme Court majority concluded that one year in jail in such a situation would be cruel and unusual and declared the minimum unconstitutional.
Use of such imagined examples came to the fore a decade ago in a case call Nur, in a decision written by then-chief justice Beverley McLachlin. In that 2015 case, minimum jail sentences of several years for some gun crimes were considered reasonable in the circumstances but not so in imagined scenarios and thus the minimum was unconstitutional.
Since then, the same thing has happened to other, but not all, minimums that have been tested at the Supreme Court.
This approach has always stoked some skepticism but this time, given the nature of the crimes involved, the ruling has garnered much more criticism than usual.
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Chief Justice Wagner, who co-wrote the Oct. 31 dissent with Justice Suzanne Côté, was unable to persuade at least one more of his colleagues to sign on to his opinion.
Before he rose to his current role, Chief Justice Wagner was in dissent in the 2015 Nur case – siding with Parliament to uphold the minimums – and was likewise in dissent in the 2016 Lloyd case, where a minimum for drug trafficking was ruled unconstitutional.
As Chief Justice, he has been part of majorities that ruled against other minimums, but he has also strongly emphasized the importance of strict punishment in crimes against children, such as in the 2019 Friesen decision he co-wrote.
In the latest ruling, Chief Justice Wagner’s dissent attempted to stake out a reduced emphasis on hypotheticals, excluding scenarios that are “far-fetched, fanciful, unrealistic, outlandish.”
He stated that more severe sentences for child porn express “society’s deep and rightful indignation,” and the Supreme Court should have been deferential to Parliament’s choice to enact the minimums.
The Decibel: The fight over the notwithstanding clause
Even as the court ruled against the minimum punishment, lawyer Angela Marinos said the ruling doesn’t mean that the top court is soft on child porn.
“The general public seems to think the Supreme Court said, ‘Let’s be lenient.’ It didn’t do that,” said Ms. Marinos, a former federal litigator and now chief general counsel at the Raoul Wallenberg Centre for Human Rights. The group was an intervener in the child-porn case that sought to highlight harms to children.
In the majority judgment, Justice Mary Moreau called child porn a scourge and wrote that lower-court rulings must reflect Parliament’s increased maximum sentences for such crimes and the primary goals of denunciation and deterrence.
Parliament first enacted a minimum punishment of 45 days in jail for indictable child-porn possession in 2005, under Paul Martin’s Liberal government. Stephen Harper’s Conservatives increased it to six months in 2012 and one year in 2015. The maximum is 10 years.
Kent Roach, a law professor at the University of Toronto, said the use of hypotheticals is well established and the court majority had the weight of precedent on its side.
He noted that the top court, as it has previously, provided guidance to Parliament on minimum punishments that could be Charter compliant. In 2016, the court, which prizes judicial discretion, called this a safety valve for outliers.
“Parliament has not taken up that hint,” said Prof. Roach.
Andrew Coyne: Parliament could easily draft a Charter-friendly mandatory-minimum law. So why reach for the notwithstanding clause?
According to the federal Department of Justice, lower courts have ruled against minimums more than 260 times over a number of years. Appellate courts, which includes the Supreme Court, have done so 62 times.
Ottawa likely has to take some sort of action, said Colton Fehr, an assistant law professor at the University of Saskatchewan. He has a forthcoming book on these issues. With the latest court ruling, he said the use of wide-ranging hypotheticals “seems absolutely solidified.”
Lisa Helps, a Vancouver defence lawyer who has been involved in similar child-porn cases, noted that the minimum is in part symbolic: Recent sentences levied in courts in British Columbia for possession of child porn are typically upward of two years, well above the minimum.
And while the top court struck down the minimum for possessing child porn, one-year-in-jail minimums remain in place for making and distributing such material.
Ms. Helps said it’s unlikely that the Supreme Court would rule those unconstitutional.
