Source: The Conversation – Canada – By Meg D. Lonergan, Contract Instructor and Doctoral Candidate, Legal Studies, Carleton University
The Supreme Court of Canada’s decision in the Attorney General of Québec v. Senneville struck down one-year mandatory minimum sentences for accessing or possessing child pornography. Immediately, politicians and commentators denounced the ruling.
Conservative Leader Pierre Poilievre, Ontario Premier Doug Ford and Alberta Premier Danielle Smith have urged Ottawa to invoke Section 33, also known as the notwithstanding clause, of the Charter of Rights and Freedoms. The clause allows Parliament or provincial legislatures to override certain Charter rights for five years.
Their alarm fits a broader pattern of constitutional populism in which politicians move to sidestep court rulings and Charter protections whenever they obstruct political objectives — whether that’s targeting the unhoused, trans rights, labour rights or now criminal sentencing.
One media commentator accused the Supreme Court of trying to “help” sex offenders, while Manitoba Premier Wab Kinew declared offenders should be “buried underneath prisons.” His reaction echoes last year’s episode in which he apologized for his caucus’s move to expel Mark Wasyliw — a criminal defence lawyer and NDP member of provincial parliament — after Wasyliw’s colleague, Gerri Wiebe, represented convicted sex offender Peter Nygard.
What the court actually did
In her seminal 1984 essay “Thinking Sex,” queer theorist and scholar Gayle Rubin observed that few political tactics are as effective at generating moral panic as invoking the need to “protect children.”
That remains true today, in part because voices across the political spectrum are vulnerable to the same knee-jerk, sensationalized responses whenever sexual harm involving children is at issue.
While the furious response to Senneville shows Canada in the grip of a new moral panic, the Supreme Court’s decision to strike down mandatory minimums for child pornography offences reflects constitutional fidelity — not leniency.
The Canadian Charter of Rights and Freedoms must apply to everyone if it’s to have any meaning at all. Section 12 of the Charter, in fact, guarantees that everyone has the right not to be subjected to cruel or unusual punishment.
Generally, mandatory minimums are constitutionally suspect, since they remove judicial discretion in sentencing based on the evidence and the specific situation at hand, and infringe upon the legal doctrine of stare decisis that requires precedence be followed.
In Senneville, the court held that mandatory minimums violate Section 12 Charter rights because they prevent judges from imposing proportionate, individualized sentences based on the facts of the case. The court also noted that Section 12 acknowledges innate human dignity and the inherent worth of individuals.
Proportionality, the Supreme Court emphasized, is a constitutional limit on state punishment, not a discretionary preference. At no point did the court diminish the gravity of child exploitation; on the contrary, it devoted an entire section in its ruling to detailing the profound harm caused by these offences.
This is consistent with the similar R. v. Friesen ruling in 2020, when the Supreme Court reaffirmed that the seriousness of child pornography does not erase the need for principled, proportionate sentencing. To cast this careful reasoning as “helping” sex offenders is not only wrong, it distorts the role of sentencing in a constitutional democracy and diminishes justice and rehabilitation in favour of punishment for its own sake.
A ‘flimsy’ hypothetical isn’t flimsy at all
An overlooked part of the majority decision in Senneville is that the appellants (the Attorney General of Québec) did not argue that, if the mandatory minimums were found to infringe the Charter’s Section 12, those minimums could be saved by Section 1.
Section 1 of the Charter guarantees that rights and freedoms are protected, but allows for “reasonable limits” that can be demonstrably justified in a free and democratic society.
This section gives governments the power to override Charter rights and freedoms when they can justify limiting them — most often in the name of protecting the rights and freedoms of others. Historically, this is what has made obscenity and hate speech laws constitutionally valid.
Many commentators claimed the Supreme Court relied on a “flimsy” and “far-fetched” hypothetical of an 18-year-old who receives an intimate image of a 17-year-old girl from a friend as one example of why the mandatory minimum sentences violate Section 12 of the Charter.
But there is nothing flimsy about this scenario. Canadian criminal justice scholars ranging from Alexa Dodge to Lara Karaian and Dillon Brady have shown that peer-based image-sharing among youth is common, and that criminal law routinely miscasts such behaviour through the lens of child porn, casting ordinary sexual expression as exploitation.
Karaian, in particular, shows how moral panic over “sexting” has long cast teenagers — especially girls — as simultaneously lacking agency and being responsible. This framing has helped create a legal landscape in which consensual, near-age image sharing is reinterpreted as criminal behaviour.
Familiar outrage
Since their introduction in 1993, Canada’s child-pornography laws have been criticized as overly broad.
One of the first tests came in the Eli Langer case, when police raided a Toronto art gallery and seized works — an early alarm bell about the law’s sweeping reach and capacity to criminalize artistic expression unconnected to exploitation.
The Supreme Court confronted these issues directly in the 2001 case R. v. Sharpe _[2001], ruling that existing child-pornography laws ensnared materials that posed no realistic risk of harm, including fictional writings and drawings. The court also carved out narrow exceptions to prevent criminalizing constitutionally protected expression.
Read more:
Why Canada’s Supreme Court isn’t likely to go rogue like its U.S. counterpart
Canadian law professor Brenda Cossman observed that moral panic around child pornography shields the law “from any and all criticism” to the point that: “Nothing can be said. And if it is, the speaker is denounced as a pedophile.”
The Senneville case reflects the realities of life, not some abstraction — and definitely not the carceral mindset that sees harsh punishment as moral and treats empathy as a weakness.
To normalize overriding Charter rights using the notwithstanding clause erodes not only public trust in judicial independence, but also the very rights and freedoms it enshrines.
The outrage of Poilievre, Smith, Ford and Kinew serves to assert their own moral authority and to repeat a familiar message: only incarceration protects the innocent. But if Canada is serious about keeping children safe, it must also invest in the social services, education and community supports that prevent harm.
As the Supreme Court itself reminded us in its ruling: “Criminal justice responses alone cannot solve the problem of sexual violence against children.”
The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.
– ref. Reality check: The Supreme Court actually did the right thing in its child pornography ruling – https://theconversation.com/reality-check-the-supreme-court-actually-did-the-right-thing-in-its-child-pornography-ruling-270014
