Supreme Court says mandatory minimum sentences for possession, access to child porn unconstitutional

Richard Wagner, Chief Justice of Canada, during a ceremony at the Supreme Court of Canada in Ottawa, on Monday, Nov. 28, 2022. Photo by Sean Kilpatrick /The Canadian Press

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OTTAWA — Canada’s top court has struck down the one-year mandatory minimum sentence for the possession and access of child pornography.

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The Supreme Court of Canada delivered its decision on Friday.

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The case, which was heard by a nine-judge panel, involved a challenge to the sentencing rules brought forward by two men in Quebec who pleaded guilty to the offences.

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They challenged the mandatory minimum sentences in the lower courts on the basis that they violated the Charter-protected right that guards against cruel and unusual punishment.

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The Crown then appealed to the Supreme Court.

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The top court dismissed that appeal and declared the mandatory minimum sentences for the two child porn offences as unconstitutional in a 5-4 decision.

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The finding comes as the governing Liberals vow to crack down further on sentencing and bail conditions for serious, violent and sexual offences.

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The new bill did not contain any changes to mandatory minimum sentences.

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Fraser has promised further legislation in the coming months that would specifically tackle sexual abuse and other “horrific crimes” targeting children.

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Since 2015, the Supreme Court has struck down a series of mandatory minimum sentencing laws, declaring them incompatible with the Charter of Rights protection against cruel and unusual punishment.

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The most recent cases came in a duo of 2023 decisions called Hills and Bertrand Marchand in which the top court found that mandatory minimum sentences for discharging a non-restricted firearm into a house and child luring were unconstitutional because there were hypothetical scenarios in which the four-year and one-year (respectively) minimum terms were excessive.

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“The Court concluded in both cases that the objectives of denunciation and deterrence cannot justify a mandatory minimum sentence that applies to an offence that captures a wide spectrum of conduct with different levels of moral culpability and that would have a deleterious effect on young offenders who have high prospects for rehabilitation,” reads a research note by the Library of Parliament.

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More to come …

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-With files from Christopher Nardi

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National Post

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