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Joseph A. Neuberger, Michael P. Bury, and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
On July 10, 2026, the Supreme Court of Canada released its decision in Quebec (Attorney General) v. Denis, 2026 SCC 25 — a case that turned not only on what actually happened to the man before the court, but on what could happen to a person who doesn’t exist. If that sounds strange, you’re not alone. The use of “reasonable hypotheticals” is one of the most counterintuitive features of Canadian constitutional law, and this case is a perfect window into how it works, why courts do it, and why judges themselves disagree about it.
01 • WHAT HAPPENED IN THIS CASE?
In 2018, police in Laval, Quebec ran a sting operation targeting people seeking to buy sex from children. Officers posted fake escort ads on websites known for offering the sexual services of minors. These same sting operations are common police operations in Ontario leading to charges of sex assault, sexual interference, communicating to obtain sexual services of a person under 18 and invitation to sexual touching.
Mario Denis answered one of the ads. Over several conversations, an undercover officer told him — four times — that the “escort” was 16 years old. He showed up at the motel anyway, paid in cash, and was arrested.
He was convicted under section 286.1(2) of the Criminal Code: obtaining or communicating to obtain sexual services from a person under 18 for consideration. That offence carries a mandatory minimum sentence of six months in jail. A mandatory minimum means exactly what it sounds like — no matter the circumstances, the judge cannot go lower.
Here is the interesting aspect. Every court that looked at the case agreed that six months was a perfectly fair sentence for Mr. Denis himself. And yet the Quebec Court of Appeal struck the mandatory minimum down as unconstitutional. How? Because of an imaginary person — the reasonable hypothetical that is used in constitutional challenges to sentencing legislation. This type of challenge was upheld in Ontario, and Joseph Neuberger struck down a similar provision in a related case.
02 • THE IMAGINARY OFFENDER
Section 12 of the Charter of Rights and Freedoms protects everyone against “cruel and unusual” punishment. The Supreme Court has long held that a punishment crosses that line when it is “grossly disproportionate” — not merely harsh or excessive, but so severe that it would outrage standards of decency and shock the conscience of Canadians. It’s a deliberately demanding test.
When someone challenges a mandatory minimum, the court asks two questions. First, would the minimum be grossly disproportionate for the actual offender in the courtroom? Second — and this is the unusual part — would it be grossly disproportionate for other offenders the law could reasonably foreseeably capture?
Mr. Denis’s lawyers proposed several hypothetical scenarios. The one that persuaded the Court of Appeal involved an 18-year-old who texts a friend who is a minor, knowing she sells sex; they agree to have sex for money. The Court of Appeal concluded that jailing that young man for six months, no exceptions, would be grossly disproportionate — and since the law would apply to him just as it applied to Mr. Denis, the mandatory minimum had to fall for everyone.
03 • WHY ON EARTH WOULD COURTS DO THIS?
It seems odd to strike down a law based on facts that never happened. But there’s a serious logic behind it, and the Supreme Court has defended the practice for decades, most famously in R. v. Nur (2015).
The core idea is this: a law is either constitutional, or it isn’t. A mandatory minimum doesn’t bend to fit the person in front of the judge — that’s its whole point. So, if the law would inevitably impose a cruel and unusual punishment on someone who realistically could come before the courts, the defect is in the law itself, not in any particular prosecution.
There are practical reasons too. If courts could only assess a law against the offender actually charged, an unconstitutional law could sit on the books for years, waiting for the “perfect” sympathetic defendant to come along — someone with the resources and the stamina to fight a constitutional battle all the way to the Supreme Court. Vulnerable, marginalized people (often the very people most likely to be caught at the low end of an offence) are the least likely to mount such challenges. As the dissenting judge in Denis put it, the point of the hypothetical exercise is to preserve effective constitutional review and “avoid leaving bad laws on the books indefinitely.”
There are guardrails, though. The hypothetical can’t be far-fetched or fanciful. It must describe a situation that could realistically arise, grounded in common sense, judicial experience, and often real reported cases. And as the majority in Denis emphasized, it can’t be padded with sympathetic but legally irrelevant details designed to tug at the heartstrings.
04 • SO, WHAT DID THE SUPREME COURT DECIDE?
The Court split 7–2 and upheld the mandatory minimum.
The majority, written by Justices Côté and O’Bonsawin, accepted that the hypothetical 18-year-old was reasonably foreseeable — but first cleaned it up. They stripped out the detail that the young man had secret romantic feelings for the girl, calling it irrelevant to his blameworthiness and a bid for sympathy. They also firmly rejected the phrase “sex worker” to describe a child, holding that such language trivializes what is really a form of exploitation a child cannot consent to.
It should be noted that a person who is 16 years old is legally capable of consenting to sexual activity but not legally capable of consenting to selling sexual services until the age of 18. While a 16-year-old is not considered a “child” related to sexual activity in regular circumstances, that person is considered a “child” when the sexual activity is being purchased.
Working with the purged scenario, the majority reasoned that a fit sentence for that young offender would be five months in jail — one month less than the mandatory minimum. A one-month gap, they held, comes nowhere near “grossly disproportionate.” The offence, in their view, always involves a high degree of moral blameworthiness: it requires the deliberate choice to buy sexual access to someone the offender knows is a child. The minimum sentence stands.
The dissent, written by Justice Karakatsanis, built a different hypothetical: a young first-time offender who sets out to hire an adult, agrees to meet a minor when the opportunity is presented, and then changes his mind and never shows up. For that person, she reasoned, a fit sentence would involve no jail at all — a strict conditional sentence served in the community. Forcing a judge to imprison that young man for six months, she wrote, would be a gross injustice, especially given how damaging prison can be for young people. She would have struck the minimum down.
05 • WHY THIS MATTERS BEYOND ONE CASE
Denis shows both the power and the friction of the hypothetical method. Two sets of judges, applying the same legal framework, built different imaginary offenders and reached opposite conclusions about the same law. The majority worried about hypotheticals being engineered for maximum sympathy; the dissent worried about ignoring realistic people the law will actually catch.
The dissent also floated a bigger question for the future: instead of striking down a mandatory minimum entirely whenever it fails for one hypothetical person, should courts be allowed to craft a narrower fix — a “safety valve” exempting only the rare cases where the minimum would be cruel? That idea would require the Court to revisit its own 2008 precedent, and the majority pointedly declined the invitation.
For now, the takeaway for the rest of us is this: when Parliament writes a one-size-fits-all punishment, courts test whether that single size fits everyone the law could plausibly reach — including people who exist only on paper. It’s not judicial imagination run wild. It’s a stress test, designed to make sure no real person is ever the first to discover, from inside a jail cell, that a law was unconstitutional all along.
This post discusses Quebec (Attorney General) v. Denis, 2026 SCC 25. It is general commentary, not legal advice.
