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Joseph Neuberger, Alper Yilmaz
Neuberger & Partners LLP
In Quebec (Attorney General) v. Senneville, 2025 SCC 33, the Supreme Court of Canada struck down the one-year mandatory minimum sentences for accessing and possessing child pornography under s. 163.1(4)(a) and (4.1)(a) of the Criminal Code. In a 5–4 split, the Majority held that these provisions violated section 12 of the Charter because they could lead to grossly disproportionate sentences in reasonably foreseeable cases.
The dissenting judges sought to narrow the use of reasonably foreseeable scenarios, insisting on a closer connection between the hypothetical and the facts before the court. The majority, by contrast, reaffirmed that the section 12 analysis does not require factual proximity between the reasonably foreseeable scenario and the case at hand.
The hypothetical before the Court involved an 18-year-old who, without solicitation, receives an intimate image from a 17-year-old partner. The majority observed that, in the age of digital communication, such a scenario is not far-fetched, yet under the impugned provisions it would attract a one-year mandatory minimum sentence.
The majority emphasized that reasonably foreseeable scenarios are essential to effective constitutional review, ensuring that laws operate justly across their full range of application. This approach, they noted, also bears on the dynamics of plea bargaining, which unfolds in the shadow of the law and is shaped by the sentences that legislation makes possible.
The Court’s decision in Senneville is a welcome affirmation of judicial discretion as the cornerstone of fair sentencing. Mandatory minimums can distort that process, forcing courts to impose punishments that do not reflect an offender’s true moral culpability. By striking down these provisions, the Supreme Court has preserved the flexibility judges need to impose proportionate sentences grounded in the facts of each case.
Judges must maintain discretion to craft meaningful sentences that take into account the facts of the case. Crucially, Senneville does not recalibrate the seriousness with which Canadian courts are to approach child pornography offences. The Court was careful to draw a bright line between constitutional proportionality and substantive sentencing guidance. As the Majority emphasized at paragraph 37, the decision “has no effect on the scope of the guidance provided in Friesen or on the fact that crimes related to child pornography … are serious crimes that often justify severe penalties.”
Friesen instructs sentencing judges to give primacy to denunciation and deterrence, to recognize the profound and enduring harm caused to victims, and to reject outdated ranges that no longer reflect contemporary understandings of that harm. The Court expressly cautioned against anchoring sentences to historical norms that understate the gravity of these offences.
Post-Friesen, sentences for possession, accessing, and distribution of child pornography frequently extend well beyond custodial thresholds, particularly where aggravating factors are present: large or extreme collections, active searching, distribution, evidence of escalation, breach of trust, or a risk of hands-on offending. Multi-year penitentiary sentences are neither unusual nor controversial in serious cases. Senneville leaves that reality entirely intact.
Going forward, sentencing courts are left with a clear mandate. Friesen continues to define the gravity of child pornography offences and the central role of denunciation and deterrence. Senneville ensures that this guidance operates within a constitutional framework that preserves proportionality across the full spectrum of cases.
