Danielle Smith Urges Ottawa to Use Notwithstanding Clause
Background
Canadian law has recognized that offences involving media depicting minors in a sexual nature constitute a unique and grave social harm. Much of this harm is attributable to the rise of technology because of the increased ease of locating and sharing child pornography. Because of this, the Criminal Code contains provisions where, if a person is found guilty of possessing or accessing child pornography, and the Crown proceeds by way of an indictable offence, they are subject to a mandatory minimum sentence of 1 year’s imprisonment. If the Crown proceeds summarily, the required minimum sentence is 6 months. This means that, no matter the offender’s background or the circumstances of the offence, the offender must serve a prison sentence if found guilty.
On October 31, 2025, in the case of Québec (Procureur général) c. Senneville, 2025 SCC 33, the Supreme Court of Canada struck down the mandatory minimum sentences of incarceration associated with these offences. The Supreme Court upheld the Quebec Court of Appeal’s ruling that the mandatory minimums were unconstitutional and contrary to section 12 of the Canadian Charter of Rights and Freedoms. Section 12 of the Charter guarantees every person’s right to be free from cruel and unusual treatment or punishment. When the Supreme Court “strikes down” a law for being unconstitutional, the law becomes of “no force or effect”, meaning that it is no longer law, and parliament must amend the law to reflect the Court’s decision. In this case, the Court found that sections 163.1(4)(a) and 163.1(4.1)(a) of the Criminal Code, which mandate the minimum sentences for possessing and accessing child pornography, are of no force and effect due to disproportionality and the ability to infringe on a person’s section 12 Charter rights.
The Supreme Court, in its decision, did not focus on the offenders and their respective punishments. Instead, it focused on the constitutionality of the mandatory minimum sentences imposed on those convicted of possessing and accessing child pornography in reasonably foreseeable scenarios where a mandatory sentence of 1 year incarceration infringes on the accused’s section 12 Charter rights.
This decision has already generated significant controversy. The Premier of Alberta, Danielle Smith, has urged the Federal Government to implement their own use of the notwithstanding clause to mirror her provincial government’s use of it to forcibly end the province-wide teacher strike.
Sentencing Principles of Canadian Law and Section 12 of the Charter
It is well-founded in Canadian law that sentencing a convicted offender is a careful exercise that must consider the offender’s individual circumstances. In the case at hand, Senneville, supra, the Supreme Court states at paragraph 1: “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?’”. Proportionality is a sentencing principle that is entrenched in all criminal proceedings, and the sentencing Judge is to consider the unique circumstances of each specific case. The Supreme Court used the concept of proportionality by analyzing a hypothetical, unique scenario with reasonably foreseeable circumstances where a mandatory minimum sentence of 1 year incarceration would be grossly disproportionate for a person found guilty of possessing or accessing child pornography.
The Test For Gross Disproportionality
When deciding whether a law imposing mandatory minimum sentences complies with section 12 of the Charter, the Supreme Court must use a two-stage test.
First, the Court must determine a fit and proportionate sentence for the offender and “possibly other reasonably foreseeable offenders” (Senneville, supra, para 39). The purpose is to make sure that the sentence imposed reflects the gravity of the offence and moral blameworthiness of the offender without going beyond what is proportionate.
Second, when the Court looks at a law which imposes mandatory minimum sentences and whether it infringes on section 12 of the Charter, it must remember that section 12 “is meant to protect human dignity and respect the inherent worth of individuals” (Senneville, supra, para 40). The Court goes on to say that a grossly disproportionate sentence cannot respect the offender’s human dignity because it denies their intrinsic worth. Therefore, when applying the second stage of the test, the Court must compare the sentence that was determined to be proportionate in the first stage and review whether the mandatory minimum imposed by law is grossly disproportionate to it. To meet this high bar, the required minimum must be “so excessive as to outrage standards of decency”, (Senneville, supra, para 41). This standard is not assessed based on what the Court believes Canadian societal views are, but rather on the values and objectives that underlie the recognized Canadian sentencing principles and the Charter.
Applying The Test – The Hypothetical Scenario
It is important to remember that the Supreme Court in this case was not concerned with whether the convicted individuals’ sentences were at issue. Instead, the Court was focused on whether the law imposing mandatory minimum sentences was constitutional. This is the basis for applying the test outlined above.
How does this all fit together? To break it down, the Supreme Court needs to determine whether, in other reasonably foreseeable scenarios, imposing a mandatory minimum sentence of 1 year incarceration would be grossly disproportionate and thus breach a person’s section 12 Charter rights. To do so, the Supreme Court must look at a hypothetical scenario that is reasonably foreseeable, and judge whether a person in that scenario receiving this punishment would be grossly disproportionate.
The scenario that the Supreme Court conceptualized at paragraphs 83-85 was:
- A male 18-year-old receives a “sext” on his cell phone from his friend of the same age, originally from the friend’s girlfriend. The girlfriend is 17 years old.
- The “sext” is a photo which constitutes the definition of child pornography.
- The 18-year-old decides to keep the image on his cell phone.
- This scenario assumes that the 18-year-old looked at the photo and has no criminal record.
- Using these facts, the 18-year-old has committed the offence of possessing child pornography.
Because of the minimum mandatory sentences, if the 18-year-old is found guilty, he must receive a sentence that includes incarceration.
First Stage of the Test – What is the Proportional Sentence
The Court recognized that “sexting” amongst teenagers is common, well-known, and documented. Interestingly, it was the Crown that brought this scenario to the Supreme Court for analysis, not the convicted individuals. The Supreme Court held that in this fact scenario, the 18-year-old committed the offence of possessing child pornography and contributed to a serious violation of the privacy and dignity of the 17-year-old. However, because of the age of this hypothetical offender, the act of accessing and possessing a photo he did not request, and the lack of a criminal record, there are significant mitigating factors. The Crown, who provided this fact scenario to the Supreme Court, argued that the 18-year-old in this situation ought to receive an unconditional term of imprisonment without any elaboration. The Supreme Court disagreed and held that this argument was incoherent, lacked structure, and undermined the recognized Canadian sentencing principle of proportionality.
The Supreme Court reminds us in this case that sentencing Judges have discretion over what constitutes a proper, just, and proportional sentence. To do so, Judges must be allowed to consider and give significant weight to factors that reduce an offender’s moral blameworthiness, rather than focusing solely on the crime’s inherent wrongfulness.
The Court stated that the circumstances in the hypothetical scenario were on the very low end of moral blameworthiness. Thus, a fit and just sentence for the 18-year-old would likely be a conditional discharge with strict probationary conditions.
Second Stage of the Test – Is the Mandatory Minimum Sentence Grossly Disproportionate
Per the Criminal Code, the minimum sentence the 18-year-old would receive is one year’s imprisonment if the Crown proceeds by indictment. Thus, the Supreme Court found that when a fit sentence would be a conditional discharge, the imposition of a minimum punishment requiring the offender to serve 1 year in jail is grossly disproportionate. Therefore, the punishment for the 18-year-old in this hypothetical scenario would breach his Charter section 12 rights. As such, the Supreme Court concluded that the minimum sentences set out in section 163.1(4)(a) and 163.1(4.1)(a) of the Criminal Code are of no force or effect and were struck down in accordance with section 52(1) of the Constitution Act, 1982.
Controversy of the Decision – Danielle Smith and Use of the Notwithstanding Clause
This decision, which stands for the respect and inherent dignity of Canadians, has already stirred significant controversy.
Premier of Alberta, Danielle Smith’s, use of the notwithstanding clause per section 33 of the Charter amid the Alberta teachers’ strike coincided with the Supreme Court’s decision to find that the mandatory minimum sentences for possession and accessing child pornography were unconstitutional. Smith urged the Federal Government to reject the Supreme Court’s finding and to implement their own use of the notwithstanding clause, which has amplified the nationwide debate on the strain between judicial and governmental power. The judicial branch acts as a safeguard to ensure that the law imposed by the government does not breach Canadian’s Charter rights. For Smith to call upon the Federal Government to follow her lead in enacting the notwithstanding clause to push aside the findings of the Supreme Court is a direct challenge to the legitimacy of the Courts. If the federal government responds by enacting the notwithstanding clause per Smith’s direction, it will directly undermine the very system in place used to protect Canadians by limiting governmental overreach.
Conclusion
This decision coincides with the sentencing principles entrenched in Canadian Common Law and the Criminal Code. It is well recognized that sentencing Judges are not to impose sentences based solely on the crime for which a person has been found guilty. It is the role of Judges to consider all the sentencing principles recognized in Canada, including the significant principle of proportionality. In this decision, the Supreme Court stated that it is not the Court’s job to make decisions based on the values held by some Canadians, such as Danielle Smith. Instead, the Courts make their decisions based on the values and objectives that are entrenched in Canadian recognized sentencing principles and the Charter.
At Roulston Urquhart Criminal Defence, we recognize that every case is unique. A person’s individual circumstances are highly relevant in all aspects of representing anyone accused of a crime. This includes how we conceptualize the best strategy for your Defence, and in the rare case that a client is found guilty, arguing for the most proportional and just sentence that reduces the consequences an accused person may face based on their unique situation.
