SUPREME COURT OF CANADA Appeal Heard: January 20, 2025 Judgment Rendered: October 31, 2025 Docket: 40882 Between: Attorney General of Quebec and His Majesty The King Appellants and Louis-Pier Senneville and Mathieu Naud Respondents - and - Raoul Wallenberg Centre for Human Rights, Criminal Lawyers' Association (Ontario), Canadian Civil Liberties Association, Canadian Centre for Child Protection Inc. and Association québécoise des avocats et avocates de la défense Interveners Official English Translation Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ. Reasons for Judgment: (paras. 1 to 118) Moreau J. (Karakatsanis, Martin, Kasirer and Jamal JJ. concurring) Joint Dissenting Reasons: (paras. 119 to 265) Wagner C.J. and Côté J. (Rowe and O'Bonsawin JJ. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . Attorney General of Quebec and His Majesty The King Appellants v. Louis-Pier Senneville and Mathieu Naud Respondents and Raoul Wallenberg Centre for Human Rights, Criminal Lawyers' Association (Ontario), Canadian Civil Liberties Association, Canadian Centre for Child Protection Inc. and Association québécoise des avocats et avocates de la défense Interveners Indexed as: Quebec (Attorney General) v. Senneville 2025 SCC 33 File No.: 40882. 2025: January 20; 2025: October 31. Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ. on appeal from the court of appeal for quebec Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Sentencing — Mandatory minimum sentence — Child pornography — Accused persons pleading guilty to possession of child pornography and accessing child pornography — Accused persons challenging constitutionality of mandatory minimum sentence of one year's imprisonment prescribed for these offences as indictable offences — Whether mandatory minimum sentences constitute cruel and unusual punishment — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C‑46, s. 163.1(4) (a), (4.1) (a). S pleaded guilty to one count of possession of child pornography and to one count of accessing child pornography, offences set out in s. 163.1(4)(a) and s. 163.1(4.1)(a), respectively, of the Criminal Code . In a separate case, N pleaded guilty to one count of possession of child pornography. At the sentencing proceedings stage, they both challenged the constitutionality of the minimum sentences facing them. The judge who sentenced S and N found that the mandatory minimum sentences of one year's imprisonment associated with the offences of possession of child pornography and accessing child pornography were grossly disproportionate in comparison with the appropriate sentences for S for those offences and for N for the offence of possession of child pornography. He declared that those minimum sentences were of no force or effect against S and N and that they were unconstitutional under s. 12 of the Charter . The Court of Appeal also found that the minimum sentences violated s. 12 of the Charter , by reason, however, of their reasonably foreseeable application to offenders other than S and N, and that they were of no force or effect under s. 52 of the Constitution Act, 1982 . Held (Wagner C.J. and Côté, Rowe and O'Bonsawin dissenting): The appeal should be dismissed. Per Karakastanis, Martin, Kasirer, Jamal and Moreau JJ.: A mandatory minimum sentence does not necessarily violate s. 12 of the Charter . However, when the application of a mandatory minimum sentence is broad and covers a wide range of circumstances , the sentence is constitutionally vulnerable because it leaves no choice but to impose a grossly disproportionate sentence on certain offenders. In the instant appeal, by assessing a reasonably foreseeable scenario, the minimum sentences set out in s. 163.1(4) (a) and (4.1) (a) of the Criminal Code are contrary to s. 12 of the Charter and are not saved by s. 1 . They are declared of no force or effect in accordance with s. 52(1) of the Constitution Act, 1982 . In order to determine whether a mandatory minimum sentence complies with s. 12 of the Charter , a two‑stage contextual and comparative analysis is required. The first stage consists in determining a fit and proportionate sentence for the offender in question and possibly other reasonably foreseeable offenders. This analysis must be carried out having regard to the sentencing objectives and principles established by the Criminal Code , whose central tenet is proportionality. The second stage of the analysis requires a comparison between the sentence that was determined at the first stage and the mandatory minimum sentence, which involves assessing the extent of the disparity between these two sentences and determining whether that disparity is such that it meets the constitutional standard of gross disproportionality. To guide the courts in this analysis, it is important to consider the following three crucial components: (1) the scope and reach of the offence, (2) the effects of the penalty on the offender and (3) the penalty, including the balance struck by its objectives. Each of these three components plays a distinct and necessary role in the analysis. The possibility of using reasonably foreseeable scenarios in the analysis under s. 12 of the Charter is essential to the rule of law. Constitutional certainty for all, independent of one's ability to bring a legal proceeding, is paramount to the Charter and is essential to ensure true access to justice. The use of reasonably foreseeable scenarios is indispensable to effective constitutional review, because the objective is to ensure that it applies to all citizens, and not only to the person in a position to challenge the validity of a law. R. v. Nur , 2015 SCC 15 , [2015] 1 S.C.R. 773, confirmed the importance of reasonably foreseeable scenarios in the s. 12 analysis. It unequivocally rejected the argument that reasonably foreseeable scenarios should be abandoned and that the primary or exclusive focus ought to be on the offender before the court. The case law has characterized what constitutes a reasonably foreseeable scenario. It must first be established that the circumstances of the offence under consideration are captured by the minimum conduct caught by the offence. Then, the representative offender must have personal characteristics that are reasonably foreseeable. Characteristics like age, poverty, race, Indigeneity, mental health issues and addiction should not be excluded from consideration. A reasonably foreseeable scenario need not be common or likely . The best way to distinguish the circumstances of the commission of the offence that are reasonable from those that are not is to look to the virtues of the adversarial process. The parties' submissions ensure that the process is fair and transparent. When the Crown and the defence agree on the foreseeable scenario the court should use to undertake the analysis, this is a strong indication that the foreseeable scenario is reasonable. Requiring a certain connection between the facts of a case and a reasonably foreseeable scenario would frustrate the possibility of assessing the constitutionality of a minimum sentence in light of certain reasonably foreseeable scenarios, including those that reflect conduct at the low end of the gravity scale and that nevertheless trigger the application of the mandatory minimum sentence. The circumstances will not be reasonably foreseeable if they are fanciful, outlandish, far‑fetched, merely speculative or marginally imaginable. For the purposes of the instant appeal, the reasonably foreseeable scenario chosen is that in which an 18‑year‑old receives on his cell phone, from his friend of the same age, a "sext" originally from the friend's girlfriend, who is 17 years old. This individual keeps the image on his cell phone and looks at the photograph during a brief period of time, knowing that it constitutes child pornography. In the age of digital communication, it is not far‑fetched that an 18‑year‑old receives from a friend an image corresponding to the definition of child pornography. The fact that the representative offender is 18 years old and has no criminal record is also foreseeable. Concerning the first stage of the constitutional analysis, although the acts committed by the representative offender are serious and deserve to be denounced, they fall at the lowest end of the gravity scale for the crimes of accessing and possession of child pornography. Furthermore, the offender's youth and the absence of a criminal record invite restraint. Concerning the second stage, imposing a sentence of one year's imprisonment on the young 18‑year‑old representative offender when a fit sentence would be a conditional discharge with strict probationary terms would be grossly disproportionate. The application of the offence of possession of child pornography covers a very wide range of circumstances and they can be transposed, with the necessary adaptations, to the crime of accessing child pornography. The harm that a sentence of one year's imprisonment causes to a representative offender should not be underestimated; imprisonment risks being very harmful to the representative offender without promoting his awareness and his rehabilitation. Furthermore, although the impugned mandatory minimum sentences contribute to the prioritization of the objectives of denunciation and deterrence, they also have the effect of removing judges' discretion to impose sentences other than imprisonment in the appropriate circumstances. The fact that the crimes of accessing and possession of child pornography are hybrid offences supports the position that the impugned mandatory minimum sentences go beyond what is necessary to attain Parliament's objectives. Per Wagner C.J. and Côté , Rowe and O'Bonsawin JJ. (dissenting): The appeal should be allowed. It has not been shown that the minimum sentences provided for in s. 163.1(4) (a) and (4.1) (a) of the Criminal Code constitute cruel and unusual punishment within the meaning of s. 12 of the Charter . The impugned provisions are constitutionally valid and operative. The censure of society and the law must be reflected consistently and rigorously in the sentences imposed on offenders who are guilty of sexual offences against minors. Through the imposition of more severe sentences, the justice system expresses society's deep and rightful indignation. A fit and proportionate sentence is one that is consistent with the teachings of R. v. Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424, and that gives effect to Parliament's intention that sexual offences against children be punished more heavily. Section 12 of the Charter grants the right not to be subjected to any cruel and unusual treatment or punishment by the state. This protection against cruel and unusual punishment has two prongs. The first prong is concerned with the severity of the punishment. The second prong is concerned instead with the method of punishment. The first prong of s. 12 is normally used to analyze the constitutionality of a minimum sentence. There are two ways to challenge the constitutionality of a minimum sentence. First, the challenge may be based on the circumstances of the offender before the court. Second, the challenge may be based on the circumstances of an offender in a reasonable hypothetical scenario. The challenge may also combine the two approaches. Where the constitutional challenge is based on the circumstances of a representative offender in a hypothetical scenario, the court will conduct a three‑stage inquiry. First, the court will select a reasonable hypothetical scenario as the basis for its analysis. Second, the court will consider what a fit and proportionate sentence would be for the representative offender in the reasonable hypothetical scenario selected, having regard to the objectives and principles of sentencing established by the Criminal Code ( ss. 718 et seq.). Third, the court will consider whether the impugned minimum sentence requires the imposition of a sentence that is grossly disproportionate to the fit and proportionate sentence. The Court's jurisprudence is cautious in delineating what is meant by a "reasonable hypothetical scenario". There are limits on the range of hypothetical scenarios that can in fact be characterized as reasonable. These limits are fundamental and help to maintain the integrity of the justice system and public confidence in the administration of justice. A reasonable scenario is not one that is far‑fetched, fanciful, unrealistic, outlandish, based on mere speculation or extreme, nor is it a remote scenario. A remote hypothetical scenario is a scenario that cannot be considered to determine the constitutionality of a legislative provision. The court must look at the connection between the case before it, on the one hand, and the hypothetical scenario proposed by one of the parties to the proceedings, on the other. That connection must be sufficient from both a factual and a legal standpoint. One must not postulate and imagine a hypothetical situation that is too far from the actual facts of the case at hand. The claimant must propose a hypothetical scenario based on the same offence as the one of which the offender before the court has been found guilty, either by taking the situation before the court as the starting point but changing certain features of it, or by taking an actual reported case as the starting point and adapting it until it has more than a remote connection with the case. It is possible to change certain characteristics of the offender in the reasonable hypothetical scenario, including Indigeneity, provided that the scenario still has more than a remote connection with the case. Here, the five hypothetical scenarios considered by the Court of Appeal have only a remote connection with the cases before the Court. The same is true of the sixth hypothetical scenario proposed by S and N in their additional submissions to the Court of Appeal. Some examples are also too extreme. Accordingly, the constitutional challenge must fail from the outset, and there is no need to move on to the next stages of the s. 12 test, that is, determining the fit and proportionate sentence and assessing whether the minimum sentence is grossly disproportionate to that fit and proportionate sentence. Nevertheless, it is important to reiterate that the objectives of denunciation and deterrence must take priority in the case of child pornography offences. Sentencing judges must not overemphasize denunciation and deterrence to the detriment of proportionality. At the same time, one also cannot ignore the changing mores of society, which necessarily influence the understanding of what is proportionate and, consequently, of the fit and appropriate sentence. In this regard, the country's appellate courts are expected to set new directions in their respective jurisdictions to reflect changing societal and judicial knowledge and attitudes about such offences and those who commit them. In addition, the constitutional standard of a "grossly disproportionate" sentence is a demanding standard that requires the exercise of normative judgment. A sentence that is merely excessive does not cross the constitutional line; it must be so excessive as to be incompatible with human dignity. A sentence that is merely disproportionate also does not cross the constitutional line; it must be so grossly disproportionate that Canadians would find it abhorrent or intolerable A sentence that is merely unfit does not cross the constitutional line either; the severity of the sentence imposed must be such as to shock the conscience of Canadians in order to cross the constitutional line. When a court engages in normative reasoning to determine whether a sentence for child pornography is so long that it becomes grossly disproportionate, the court must necessarily bear in mind the profound wrongfulness and harmfulness of these crimes. These heinous offences call for strong condemnation; the court owes greater deference to Parliament's decision to enact the mandatory minimum. Cases Cited By Moreau J. Applied: R. v. Hills , 2023 SCC 2 ; R. v. Nur , 2015 SCC 15 , [2015] 1 S.C.R. 773; R. v. Bertrand Marchand , 2023 SCC 26 ; explained: R. v. Goltz , [1991] 3 S.C.R. 485; considered : R. v. Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424; referred to: R. v. Parranto , 2021 SCC 46 , [2021] 3 S.C.R. 366; R. v. Gladue , [1999] 1 S.C.R. 688; R. v. Smith , [1987] 1 S.C.R. 1045; R. v. Lloyd , 2016 SCC 13 , [2016] 1 S.C.R. 130; R. v. Hilbach , 2023 SCC 3 ; R. v. John , 2018 ONCA 702 , 142 O.R. (3d) 670; R. v. Gangoo-Bassant , 2018 QCCQ 11080 ; R. v. Duclos , 2019 QCCQ 5680 ; R. v. Daudelin , 2021 QCCA 784 ; R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253; R. v. Régnier , 2018 QCCA 306 ; R. v. Bykovets , 2024 SCC 6 ; R. v. Sheppard , 2025 SCC 29 ; R. v. Pike , 2024 ONCA 608 , 173 O.R. (3d) 241; R. v. 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Sullivan , 2022 SCC 19 , [2022] 1 S.C.R. 460. Statutes and Regulations Cited Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service , S.C. 2011, c. 4. Act to amend the Criminal Code and the Customs Tariff (child pornography and corrupting morals) , S.C. 1993, c. 46, s. 2. Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material) , S.C. 2024, c. 23. Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act , S.C. 2005, c. 32. Canadian Charter of Rights and Freedoms , ss. 1, 12 . Constitution Act, 1982 , s. 52. Criminal Code , R.S.C. 1985, c. C‑46, ss. 4(3), 21 to 24 , 161(1) (a), (d), 163 , 163.1 , (1) "child pornography", 718 et seq., 718.01, 718.1, 718.2(d), (e), 719(3), 742.1(b). Criminal Law Amendment Act, 2001 , S.C. 2002, c. 13, s. 5. Safe Streets and Communities Act , S.C. 2012, c. 1, s. 17. Tougher Penalties for Child Predators Act , S.C. 2015, c. 23, s. 7. Treaties and Other International Instruments Convention on the Rights of the Child , Can. T.S. 1992 No. 3, Articles 19, 34 . Authors Cited Benedet, Janine. "Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences" (2019), 44 Queen's L.J. 284. Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children: Report of the Committee on Sexual Offences Against Children and Youths . Ottawa: Minister of Supply and Services Canada, 1984. Canada. Special Committee on Pornography and Prostitution. Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution . Ottawa: Minister of Supply and Services Canada, 1985. Canada. Department of Justice Canada. " Exemptions from mandatory minimum penalties: recent developments in selected countries , by Yvon Dandurand, with Ruben Timmerman and Tracee Mathison‑Midgley, Ottawa, 2017. Daly, Paul, et autres"The Effect of Declarations of Unconstitutionality in Canada" (2022), 42 N.J.C.L. 25. Dauda, Carol, and Danielle McNabb. "Getting to Proportionality: The Trouble with Sentencing for Possession of Child Pornography in Ontario" (2021), 37 Windsor Y.B. Access Just. 278. Fehr, Colton. "Over the Hills : Section 12 of the Charter at 40" (2024), 102 Can. Bar Rev. 393. Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada , 5th ed. Supp. Toronto: Thomson Reuters, 2023 (updated 2025 , release 1). Joyal, Lisa, et al. Prosecuting and Defending Offences Against Children , 2nd ed. Toronto: Emond Montgomery, 2023. Kerr, Lisa, and Michael Perlin. "A New Justification for Section 12 Hypotheticals and Two Rules for Constructing Them" (2025), 5 S.C.L.R. (3d) 179 . Parent, Hugues, and Julie Desrosiers. Traité de droit criminel , t. III, La peine , 4th ed. Montréal: Thémis, 2024. Ruby, Clayton C. Sentencing , 10th ed. Toronto: LexisNexis, 2020. Vauclair, Martin, Tristan Desjardins and Pauline Lachance. Traité général de preuve et de procédure pénales 2025 , 32nd ed. Montréal: Yvon Blais, 2025. APPEAL from a judgment of the Quebec Court of Appeal (Vauclair, Ruel and Bachand JJ.A.), 2023 QCCA 731 ( sub nom . Procureur général du Québec v. Terroux ) , 430 C.C.C. (3d) 1, [2023] AZ‑51944041, [2023] J.Q. n o 5080 (Lexis), 2023 CarswellQue 14733 (WL) , confirming two decisions of Tremblay J.C.Q., 2020 QCCQ 1204 , [2020] AZ-51679158, [2020] J.Q. n o 1974 (Lexis), 2020 CarswellQue 2911 (WL), and 2020 QCCQ 1202 , [2020] AZ‑51679156, [2020] J.Q. n o 1982 (Lexis), 2020 CarswellQue 2910 (WL). Appeal dismissed, Wagner C.J. and Côté, Rowe and O'Bonsawin JJ. dissenting. Audrey‑Anne Blais , Sylvain Leboeuf and Julie Dassylva , for the appellant the Attorney General of Quebec . Maya Gold‑Gosselin and Joanny St‑Pierre , for the appellant His Majesty The King . Stéphanie Pelletier‑Quirion and Camille Langlois‑Émond , for the respondents. Angela Marinos , for the intervener Raoul Wallenberg Centre for Human Rights. Samara Secter and Cassandra Richards , for the intervener Criminal Lawyers' Association (Ontario) . Spencer Bass and Nader R. Hasan , for the intervener Canadian Civil Liberties Association. Samantha Hale and Amy Goudge , for the intervener the Canadian Centre for Child Protection Inc. Hugo Caissy , for the intervener Association québécoise des avocats et avocates de la défense. English version of the judgment of Karakatsanis, Martin, Kasirer, Jamal and Moreau JJ. delivered by Moreau J. — ## I. Introduction
I. Introduction
1Canadian judges recognize that sentencing is a delicate exercise. 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 ?" ( R. v. Parranto , 2021 SCC 46 , [2021] 3 S.C.R. 366, at para. 36 , quoting R. v. Gladue , [1999] 1 S.C.R. 688, at para. 80 (emphasis in original)). This complexity is inherent in sentencing law and is also at the heart of our jurisprudence on the right not to be subjected to any cruel and unusual treatment or punishment ( s. 12 of the Canadian Charter of Rights and Freedoms ). The resolution of this appeal once again requires a nuanced approach.
2The appellants challenge the declarations of unconstitutionality made by the majority of the Quebec Court of Appeal with respect to the mandatory minimum sentences of one year's imprisonment provided for upon conviction for the offences of possession of child pornography ( s. 163.1(4) (a) of the Criminal Code , R.S.C. 1985, c. C‑46 (" Cr. C. ")) and accessing child pornography ( s. 163.1(4.1) (a)). [1] Before this Court, the argument centred exclusively on the constitutionality of these minimum sentences by reference to situations other than those of the respondents.
3This appeal provides an opportunity to reiterate the importance of the possibility for the courts to consider reasonably foreseeable scenarios in the analysis under s. 12 of the Charter . This possibility can avoid invalid laws remaining in force indefinitely, prevent them from having indirect effects in the context of plea bargaining and promote legal certainty and real access to justice. In short, as this Court has consistently repeated, recourse to reasonably foreseeable scenarios is an essential tool for ensuring effective constitutional review.
4By assessing a reasonably foreseeable scenario put forward by the parties, I come to the conclusion that the minimum sentences set out in s. 163.1(4) (a) and (4.1) (a) violate the protection against cruel and unusual punishment guaranteed by s. 12 of the Charter . While the teachings of R. v. Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424, are fully applicable to child pornography offences, which often warrant the imposition of severe penalties, it must be recognized that these offences can be committed in different ways, under different circumstances and by different offenders.
5Our case law is categorical: a mandatory minimum sentence does not necessarily violate s. 12 of the Charter ( R. v. Hills , 2023 SCC 2 , at para. 38 ; R. v. Smith , [1987] 1 S.C.R. 1045, at p. 1077). However, when the application of a mandatory minimum sentence is broad and covers a wide range of circumstances, the sentence is "constitutionally vulnerable" ( R. v. Lloyd , 2016 SCC 13 , [2016] 1 S.C.R. 130, at para. 3 ; R. v. Hilbach , 2023 SCC 3 , at para. 52 ) because it leaves no choice but to impose a grossly disproportionate sentence on certain offenders.
6A thorough analysis reveals that this is the case for the mandatory minimum sentences contested in this appeal. The offences with which they are associated cover a very wide range of circumstances. They capture both the well‑organized offender who, over the years, has accumulated thousands of files showing prepubescent victims, and the young 18‑year‑old offender who, one day, keeps and views a file showing a 17‑year‑old victim that was sent to the offender without them having requested it.
[7] This last reasonably foreseeable scenario was at the centre of the debate before this Court. The facts of this scenario "are . . . captured by the minimum conduct caught by" ( R. v. Nur , 2015 SCC 15 , [2015] 1 S.C.R. 773, at para. 68 ; Hills , at paras. 79‑80 and 83 ) the offences of possession of child pornography and accessing child pornography. In the age of digital communication, this scenario is not uncommon, and no aspect of our jurisprudence justifies excluding it for the purposes of the analysis under s. 12 of the Charter . In light of the principles of sentencing, the appropriate sentence for such an offender could be a conditional discharge. The disparity between this non‑carceral penalty and the mandatory minimum sentences of one year's imprisonment easily meets the constitutional standard of gross disproportionality. The impugned minimum sentences thus violate s. 12 of the Charter , and the appellants did not argue that they can be saved by s. 1 . The appeal should therefore be dismissed. ## II. Background and Judicial History ### A. Court of Québec (Tremblay J.)
II. Background and Judicial History
[8] While the respondents' cases were separate, the decisions on their sentences were rendered the same day by the same judge.
A. Court of Québec (Tremblay J.)
9Louis‑Pier Senneville pleaded guilty to one count of possession of child pornography ( s. 163.1(4) (a) Cr. C. ) and to one count of accessing child pornography ( s. 163.1(4.1) (a)). He admitted having been in possession of 475 files, including 317 images of children constituting child pornography. Of those images, 90 percent were of young girls between 3 and 6 years of age, some showing victims being subjected to acts of penetration and sodomy committed by adults and minors. Mr. Senneville admitted that he had acquired these images through specialized sites and that he had possessed them for 8 months. He accessed these images for 13 months. Mr. Senneville is a former soldier who was 28 years old and had no criminal record at the time of the sentencing decision. The decision noted that he cooperated with the authorities and complied with strict release conditions. He had no [ translation ] "pedophilic or hebephilic sexual interests", and a specialized assessment in sexual offending showed that he was at low risk to reoffend ( 2020 QCCQ 1204 , at para. 41 ). The sentencing judge found that in addition to having admitted the facts alleged against him, Mr. Senneville was sincerely remorseful and was aware of the harm caused.
10Mathieu Naud pleaded guilty to one count of possession of child pornography ( s. 163.1(4) (a) Cr. C. ) and to one count of distribution of child pornography (s. 163.1(3)). He admitted having been in possession, for 13 months, of 531 images and 274 videos of child pornography, most of which were of children from 5 to 10 years of age being subjected to sexual abuse, such as fellatio and vaginal and anal penetration, by adults. Mr. Naud used specialized software to access that material, make it available and wipe out any traces of it. The sentencing judgment notes that Mr. Naud was in his thirties and had no criminal record, had low self‑confidence, a tendency to be avoidant, an inability to define his identity and a defeatist attitude. He said that he had been depressed for a long time and experienced suicidal ideation. He had had a string of [ translation ] "small jobs" without much motivation. [ translation ] "[H]is life revolved around his computer and his consumption to the point of intoxication. He consumed cannabis, hashish and alcohol. On his computer, he listened to music, informed himself, communicated a bit and accessed adult and child pornography" ( 2020 QCCQ 1202 , at para. 7 ). The sentencing judge noted that [ translation ] "the accused's depressive state and isolation marginalized him" (para. 38). In addition to Mr. Naud having admitted the facts alleged against him, the judge noted that Mr. Naud was very ashamed and had embarked on two types of group therapy.
11At the sentencing proceedings stage, both respondents challenged the constitutionality of the minimum sentences facing them.
12With respect to the crime of possession of child pornography, the sentencing judge found that the appropriate sentences for Mr. Senneville and Mr. Naud were 90 days' imprisonment to be served intermittently and 9 months' imprisonment, respectively. Given those findings, the judge determined that the mandatory minimum sentence of one year's imprisonment associated with the offence of possession of child pornography ( s. 163.1(4) (a) Cr. C. ) was grossly disproportionate in comparison with the appropriate sentences for the respondents. The constitutionality of this minimum sentence was not considered by reference to reasonably foreseeably scenarios.
[13] For the offence of accessing child pornography, the sentencing judge concluded that the appropriate sentence for Mr. Senneville was also 90 days' imprisonment to be served intermittently and that the mandatory minimum sentence of one year's imprisonment ( s. 163.1(4.1) (a) Cr. C. ) was grossly disproportionate in comparison with the appropriate sentence for the respondent. The judge also found that it was unnecessary to consider the constitutionality of that minimum sentence by reference to reasonably foreseeable scenarios. ### B. Quebec Court of Appeal, 2023 QCCA 731 (Vauclair, Ruel and Bachand JJ.A.)
B. Quebec Court of Appeal
14On appeal, the appellants challenged the fitness of the sentences imposed on the respondents as well as the judge's findings as to the constitutionality of the minimum sentences provided for in s. 163.1(4) (a) and (4.1) (a) Cr. C.
15The three Court of Appeal judges who heard the appeal each wrote their own reasons. #### (1) The Fitness of the Sentences Imposed
16In Mr. Senneville's case, a majority of the Court of Appeal (Ruel and Bachand JJ.A.) allowed the appeal in order to substitute a sentence of one year's imprisonment for the sentence of 90 days' imprisonment to be served intermittently. Bachand J.A., correctly in my opinion, noted that the sentence imposed was demonstrably unfit [ translation ] "principally because of the nature of the images involved and the teachings of Friesen " (para. 232 ).
17In Mr. Naud's case, a majority of the Court of Appeal (Vauclair and Bachand JJ.A.) dismissed the sentence appeal. #### (2) The Constitutionality of the Minimum Sentences
18Regarding the constitutionality of the minimum sentences set out in s. 163.1(4) (a) and (4.1) (a) Cr. C. , a majority of the Quebec Court of Appeal (Vauclair and Bachand JJ.A.) found that they violate s. 12 of the Charter by reason of their reasonably foreseeable application to offenders other than the respondents. ##### (a) Vauclair J.A.
19In his reasons, Vauclair J.A. referred to the analysis conducted in R. v. John , 2018 ONCA 702 , 142 O.R. (3d) 670 (at para. 148 , quoting John , at paras. 29‑31 and 38‑40 ), but he focused particularly on two reasonably foreseeable scenarios that, for present purposes, constitute reported cases. The first case discussed by Vauclair J.A. was R. v. Gangoo‑Bassant , 2018 QCCQ 11080 : [ translation ] Certainly, Gangoo‑Bassant remains the case that illustrates the point more clearly. A sincerely contrite 34‑year‑old father — with no criminal record, a stable job, for whom a specialized report showed no particular deviancy or difficulties — had, on a single occasion, sent a single photograph of child pornography that he possessed to just one person via a social network. According to the AGQ, this isolated and limited act warranted nothing but the minimum sentence of one year. With all due respect, this case, which is not hypothetical, unequivocally demonstrates the cruel and unusual nature of the minimum sentence. [Emphasis added; para. 154.]
20Vauclair J.A. then described R. v. Duclos , 2019 QCCQ 5680 , where the offender had been in possession of 103 photographs of prepubescent children, some of which showed [ translation ] "sexual acts (masturbation, fellatio and penetration) committed between them or with adult men" (para. 156, quoting Duclos , at para. 14 ). Among other things, the sentencing judge noted that the offender suffered from various mental disorders: [ translation ] "They showed that the accused has Asperger syndrome, generalized anxiety disorders with obsessive features, Tourette syndrome, and a mild intellectual disability by reason of his very low non‑verbal ability, his poor adaptive skills and developmental dyspraxia of a visuospatial nature" (para. 156, quoting Duclos , at para. 24 ). Vauclair J.A. then implicitly approved, particularly given the offender's vulnerability, the suspension by the judge of [ translation ] "the passing of sentence and imposed, inter alia , a period of three years' probation" (para. 156).
21It is apparent from Vauclair J.A.'s reasons that, in his view, those situations, which are distinct from those of the respondents, clearly demonstrate the unconstitutionality of the minimum sentences for the offences of possession of and accessing child pornography (para. 160). ##### (b) Bachand J.A.
22In his reasons, Bachand J.A. agreed with the Ontario Court of Appeal's analysis in John , which led him to declare the minimum sentence provided for in s. 163.1(4) (a) unconstitutional. Bachand J.A. also agreed with Vauclair J.A.'s analysis regarding the application of that minimum sentence to reasonably foreseeable cases (para. 231). Lastly, Bachand J.A., like his colleague Vauclair J.A., was of the opinion that the declaration of unconstitutionality [ translation ] "must extend to the minimum sentence provided for in section 163.1(4.1) (a) Cr. C. " (para. 232). ##### (c) Ruel J.A.
23Ruel J.A. dissented with respect to the constitutionality of the minimum sentences. He would not have examined reasonably foreseeable scenarios. According to him, because the appropriate sentences for Mr. Senneville and Mr. Naud were equivalent to the impugned mandatory minimum sentences, [ translation ] "this would put an end to the debate" (para. 206, citing R. v. Daudelin , 2021 QCCA 784 , at para. 78 ).
24Ruel J.A. nevertheless continued his analysis and, in his review of the applicable law, mentioned that [ translation ] "far‑fetched scenarios or scenarios that are only remotely related to the case in question must be excluded" (para. 213, citing Nur , at paras. 62 and 88 ). In his view, the reasonably foreseeable scenarios referred to by the respondents and considered by Vauclair J.A. could not [ translation ] "ground a constitutional challenge to the minimum sentences" (para. 216).
25For example, he wrote that Gangoo‑Bassant was [ translation ] "miles away from the facts of the present cases" and that there was no justification for "expanding this marginal scenario to found a general declaration of unconstitutionality for everyone and in all cases to come" (para. 217). Similarly, he considered it inappropriate to choose one of the reasonably foreseeable scenarios set out in John , that is, the one involving [ translation ] "a young man 18 years of age who receives a sext from a friend showing a nude 17‑year‑old young woman and who keeps the photo on his phone instead of deleting it" (para. 220, citing John , at para. 29 ). This was the case, he said, because that scenario [ translation ] "seems . . . extremely remote from the facts in the Senneville and Naud cases, unrealistic and unlikely to occur" (para. 220).
[26] In short, in the view of the dissenting judge, [ translation ] "it is not even necessary to proceed to the disproportionality analysis, based on the cases or hypotheticals presented by the respondents" (para. 221). Ruel J.A. therefore refrained from ruling on the constitutionality of the minimum sentences. ## III. Preliminary Comments ### A. Two Comments
III. Preliminary Comments
27I make two preliminary comments that I find important to highlight concerning the reasons that follow.
28First, this appeal is exclusively about analyzing the constitutionality of the mandatory minimum sentences. Indeed, in their joint factum, the appellants specify that their appeal concerns neither the sentences that were imposed on the respondents nor the cruel and unusual nature of the minimum sentences in relation to them (A.F., at para. 15). These reasons therefore do not address the appropriateness of the sentences imposed on the respondents, notably in light of the teachings of Friesen . Furthermore, given the parties' submissions, the constitutional analysis will be limited to offenders in reasonably foreseeable scenarios.
[29] Second, the appellants did not pursue the argument that the minimum sentences can be saved by s. 1 should they be contrary to s. 12 of the Charter . I therefore need not address this issue ( see Hills , at para. 170 ). ### B. The Serious Social Harm Caused By Child Pornography Offences and the Teachings of Friesen
B. The Serious Social Harm Caused By Child Pornography Offences and the Teachings of Friesen
30The ubiquity of the Internet and computer technologies in our lives has changed a good many things, sometimes for the better, sometimes for the worse. In the latter case, it cannot be ignored that new technologies "have accelerated the proliferation of child pornography because they make it easier to produce, distribute and access material in partial anonymity" ( R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253, at para. 114 , per Deschamps J., dissenting, citing Y. Akdeniz, Internet Child Pornography and the Law: National and International Responses (2008), at pp. 1‑8; see also Friesen , at para. 47 ; R. v. Régnier , 2018 QCCA 306 , at para. 57 ). Incidents of child pornography reported by the police have increased ( Friesen , at para. 46 ), and there is no doubt that crimes related to child pornography today present "serious and pressing social harm" ( R. v. Bykovets , 2024 SCC 6 , at para. 11 ), sexual offences against children being "among the most profoundly immoral acts an individual can commit" ( R. v. Sheppard , 2025 SCC 29 , at para. 1 ).
31Regarding, more specifically, the offence of possession of child pornography, Tulloch C.J. detailed the harm caused by this offence ( R. v. Pike , 2024 ONCA 608 , 173 O.R. (3d) 241, at paras. 144‑56 ). I agree with his comments, some of which I will refer to.
32People who possess child pornography — just like those who access it — participate in the serious violation of children's dignity, in that they perpetuate "the exploitation originating from the production of the images" and infringe "their right not to have the permanent record of their abuse and exploitation viewed by adults" ( Pike , at para. 147 , citing R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45, at paras. 92 , 158 and 169, and A. Rogers"The Dignitary Harm of Child Pornography — From Producers to Possessors", in C. Byrne Hessick, ed., Refining Child Pornography Law: Crime, Language, and Social Consequences (2016), 165, at pp. 177‑80; see also Friesen , at para. 51 ). The possession and accessing of child pornography feed the vicious circle of its production, because its production "is fueled by the market for it, and the market in turn is fueled by those who seek to possess it" ( Sharpe , at para. 92 ). Child pornography denies "children's humanity", autonomy and dignity and propagates "the false view that children are appropriate sexual partners and that they are sexual objects to be used for the sexual gratification of adults" (para. 183, per L'Heureux‑Dubé, Gonthier and Bastarache JJ.; see also Pike , at para. 155 ). It trivializes and encourages the sexual exploitation of children, and is particularly harmful for this reason, whether or not it depicts real children ( Sharpe , at para. 38 ; Pike , at para. 169 ). It is disturbing to note that child pornography can now be generated on a very large scale using artificial intelligence (see, e.g., R. v. Larouche , 2023 QCCQ 1853 , at paras. 68‑70 ) and that the production of deepfakes is "a present and growing danger for children worldwide" (I.F., Canadian Centre for Child Protection Inc., at para. 17; see also A.F., at para. 105).
33People who possess child pornography and who access it also participate in the "extreme violation" of the privacy interests of the children it depicts ( Sharpe , at para. 241 , per L'Heureux‑Dubé, Gonthier and Bastarache JJ.). The criminalization of possession of child pornography is intended, among other things, to bring an end to this violation of children's privacy by incentivizing the destruction of "pornographic representations which already exist" ( ibid. ). However, those who choose to possess such material frustrate that objective and, as stated by Tulloch C.J., they act instead as receivers of stolen goods, acquiring "stolen recordings whose production and distribution children cannot consent to, thus robbing children of control over to whom, and in what context, to disclose their abuse and exploitation" ( Pike , at para. 148 ). Moreover, people who possess child pornography and who access that content "make the challenging path of recovery for children much steeper by transforming the initial exploitation and violence of the production into a continuing violation" (para. 149). Victims of child pornography have varying life trajectories and recover at their own pace from the crimes committed against them, but all of them are condemned to spend the rest of their lives "with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone" ( Sharpe , at para. 92 ; see also R. v. Snowden , 2023 ONCA 768 , 432 C.C.C. (3d) 52, at para. 93 ).
34The crimes of possession of and accessing child pornography thus cause serious social harm and victimize "the most vulnerable members of our society" ( Friesen , at para. 1 ). The guidance provided in Friesen is fully applicable to these crimes. In that case, this Court noted that it is important that "sentences for sexual offences against children correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes" (para. 107 ; see also R. v. Bertrand Marchand , 2023 SCC 26 , at para. 31 ; R. v. R.P.A. , 2025 ABCA 300 , at para. 104 ). As I explain later, the sentences imposed for the offences of possession of and accessing child pornography must reflect the fact that Parliament has increased the maximum sentences for these crimes and indicated that the objectives of denunciation and deterrence must be given primary consideration for such offences (s. 718.01 Cr. C. ). This provision has the effect of limiting the discretion of sentencing judges, although they can give "significant weight" ( Friesen , at para. 104 ) to other objectives, including "restorative sentencing goals" (see Gladue , at para. 43 ) such as rehabilitation ( Bertrand Marchand , at para. 28 , citing R. v. Rayo , 2018 QCCA 824 , at paras. 102‑8 ).
35Proportionality, whose constitutional dimension is enshrined in s. 12 of the Charter ( R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206, at para. 41 ; R. v. Bissonnette , 2022 SCC 23 , [2022] 1 S.C.R. 597, at para. 52 ), nevertheless remains the central tenet of sentencing. "[W]hatever weight a judge may wish to accord to the objectives [listed in s. 718 ], the resulting sentence must respect the fundamental principle of proportionality" ( Nasogaluak , at para. 40 (emphasis in original); see also R. v. J.W. , 2025 SCC 16 , at para. 42 ). As the principle of proportionality requires only consideration of the gravity of the offence and the degree of responsibility of the offender, it performs a limiting function with respect to the objectives of sentencing. It therefore has the effect of limiting the pursuit of other objectives ( Nasogaluak , at para. 42 ). In other words, these other objectives do not render a sentence more proportional or less proportional; rather, proportionality imposes a limit on their pursuit.
36It must also be remembered that "criminal justice responses alone cannot solve the problem of sexual violence against children" ( Friesen , at para. 45 ). The protection of children is one [ translation ] "of the essential and perennial values" of our society ( R. v. L. (J.‑J.) (1998) , 126 C.C.C. (3d) 235, at p. 250; Friesen , at para. 42 ), but it would be unwise to believe that the infliction of punishment, which occurs after the harm is done, can on its own protect children from the dangers of child pornography. The Criminal Code also provides that "[t]he fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives , to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives" ( s. 718 ). In light of that indication from Parliament, Vauclair J.A. was entirely correct in observing the following in V.L. v. R. , 2023 QCCA 449 : [ translation ] . . . it is doubtful that the role of the courts is to eradicate any kind of criminal conduct . . . . Setting an unrealistic and unattainable objective can only undermine public confidence in the administration of justice. It must be remembered that the courts are first and foremost only a link in the chain of interventions meant to protect society. Once again, the courts participate, along with crime prevention initiatives , in maintaining a just, peaceful and safe society. Their role, if it must be identified, is to impose just sanctions . [Emphasis in original; para. 41.]
[37] I agree with my colleagues that child pornography is a scourge that is profoundly wrongful and harmful towards children. However, I conclude this section by noting this Court's recognition that there is no incongruity between emphasizing the severe harms and wrongfulness associated with sexual offences against children and finding that minimum sentences are unconstitutional (see Bertrand Marchand , at para. 167 ). The finding that the mandatory minimum sentences challenged in this appeal cover a wide range of circumstances and in some cases require the imposition of cruel and unusual punishment is at the heart of the constitutional debate before us. It has no effect on the scope of the guidance provided in Friesen or on the fact that crimes related to child pornography, like other sexual offences against children, are serious crimes that often justify severe penalties. ## IV. The Applicable Principles ### A. The Two‑Stage Inquiry for Determining Whether a Mandatory Minimum Sentence Complies With Section 12 of the Charter
IV. The Applicable Principles
[38] The law surrounding the interaction between mandatory minimum sentences and s. 12 of the Charter has been the subject of much discussion in recent decisions of this Court. In order to determine whether a mandatory minimum sentence complies with s. 12 of the Charter , a two‑stage contextual and comparative analysis is required.
A. The Two‑Stage Inquiry for Determining Whether a Mandatory Minimum Sentence Complies With Section 12 of the Charter
39The first stage consists in determining a fit and proportionate sentence for the offender in question "and possibly other reasonably foreseeable offenders" ( Bertrand Marchand , at para. 104 ; see also Hills , at para. 40 ). This requires "careful adherence to established sentencing principles" ( Bertrand Marchand , at para. 122 ). The analysis must therefore be carried out having regard to the sentencing objectives and principles established by the Criminal Code , whose central tenet is proportionality ( s. 718.1 Cr. C .; Hills , at paras. 56‑61 ). This fundamental principle performs a limiting function ( Hills , at para. 57 ; Bissonnette , at para. 51 ; Nasogaluak , at para. 42 ). It seeks to ensure that the sentence reflects — without, however, going beyond — the gravity of the offence and the moral blameworthiness of the offender ( Nasogaluak , at para. 42 ; R. v. Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433 , at para. 37 ). As stated by LeBel J."[i]n the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other" ( Ipeelee , at para. 37 ). In this sense"there is no proportionate sentence that only takes into account the offence and ignores the offender" ( Hills , at para. 61 ). Judges must, at the first stage of the s. 12 analysis, exercise their discretion and determine with precision the sentence that is appropriate either for the offender before them or for an offender in a reasonably foreseeable scenario (paras. 63‑66).
40To properly understand the second stage of the analysis, it is important to remember that s. 12 of the Charter "is meant to protect human dignity and respect the inherent worth of individuals" ( Quebec (Attorney General) v. 9147‑0732 Québec inc. , 2020 SCC 32 , [2020] 3 S.C.R. 426, at para. 51 ; see Hills , at para. 32 ). Human dignity cannot be respected through the imposition of a grossly disproportionate sentence, because it would have the effect of denying the intrinsic worth of the individual on whom it is imposed (see Bissonnette , at para. 59 ; Hills , at para. 32 ).
41The second stage of the analysis therefore requires a comparison between the sentence that was determined at the first stage and the mandatory minimum sentence. This involves assessing the extent of the disparity between these two sentences and determining whether that disparity is such that it meets the constitutional standard of gross disproportionality. It has been consistently emphasized that this standard is a particularly high bar ( Lloyd , at para. 24 ; Bissonnette , at para. 70 ; Hills , at paras. 109 and 115 ). The comparative analysis must establish that the sentence is "so excessive as to outrage standards of decency" ( Bertrand Marchand , at para. 109 , quoting Hills , at para. 109 ). Put another way, the sentence must shock the conscience or be abhorrent or intolerable ( Hills , at paras. 109‑10 ). This is assessed not on the basis of what a court believes to be the views of Canadian society, but rather "through the values and objectives that underlie our sentencing and Charter jurisprudence" (para. 110).
42To guide the courts in this comparative analysis, Hills stressed the importance of considering "three crucial components": (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (para. 122). These components were thoroughly explained by Martin J. (at paras. 122‑46) and will be applied below to the impugned minimum sentences.
43But before proceeding further, a clarification is warranted. My colleagues state that "once the court has selected a reasonable hypothetical scenario, the scope and reach of the offence are of little relevance" (para. 257). Respectfully, this statement is out of step with the case law of this Court noting that "[t]he scope and reach of the offence remains a major feature in the gross disproportionality analysis" ( Hills , at para. 125 ). This principle was reiterated in Hilbach (at para. 52 ) and Bertrand Marchand (at para. 104 ) and follows from previous decisions on s. 12 of the Charter , including Lloyd (at para. 24 ), Nur (at para. 82 ) and Smith (at p. 1078).
44It is essential to consider these three components in the same manner to ensure that a contextual and exhaustive analysis is conducted. The first two components focus on the proportionality of the sentence; the first, relating to the scope and reach of the offence, is used to assess variations in the gravity of conduct and in the degree of culpability, while the second, relating to the effects of the penalty, is used to assess the severity of the sentence and to determine whether its "effect . . . is to inflict mental pain and suffering on an offender such that the offender's dignity is undermined" ( Hills , at para. 133 ). The third component consists in determining whether the sentence is excessive in light of the legislative objectives of sentencing for the offence in question, having regard to "the legitimate purposes of punishment and the adequacy of possible alternatives" (para. 138, quoting Smith , at pp. 1099‑1100). Each of these three components therefore plays a distinct and necessary role in the analysis. If little importance is given to the first component, it will not be possible to fully grasp the variations in the gravity of conduct and in the degree of culpability for the offence in question.
[45] The two stages of the analysis are therefore well established. In the following section, I will address the aspect of our case law at the heart of my disagreement with my colleagues, namely, the framework for the use of reasonably foreseeable scenarios. ### B. The Use of Reasonably Foreseeable Scenarios #### (1) The Importance of Effective Constitutional Review
B. The Use of Reasonably Foreseeable Scenarios
46The possibility of using reasonably foreseeable scenarios in the analysis under s. 12 of the Charter is essential to the rule of law. When a mandatory minimum sentence is challenged on the basis that it is unconstitutional because of its effects on third parties, the proceedings take on a dimension that extends beyond the interests of the offender concerned: it is then "the nature of the law, not the status of the accused, that is in issue" ( R. v. Big M Drug Mart Ltd. , [1985] 1 S.C.R. 295, at p. 314, quoted in Nur , at para. 51 ). Section 52 of the Constitution Act, 1982 does not create a personal remedy: a person can challenge the validity of a legislative provision even if their own rights have not been violated ( Nur , at para. 51 , quoting Big M Drug Mart Ltd. , at p. 314; R. v. Morgentaler , [1988] 1 S.C.R. 30; R. v. Wholesale Travel Group Inc. , [1991] 3 S.C.R. 154; R. v. Heywood , [1994] 3 S.C.R. 761; R. v. Mills , [1999] 3 S.C.R. 668; R. v. Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96, at paras. 58‑66 ; see also Ontario (Attorney General) v. G , 2020 SCC 38 , [2020] 3 S.C.R. 629, at para. 96 ; P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 59:6). Thus"[a] claimant who otherwise has standing can generally seek a declaration of invalidity under s. 52 on the grounds that a law has unconstitutional effects either in his own case or on third parties" ( Ferguson , at para. 59 , citing Big M , P. Sankoff"Constitutional Exemptions: Myth or Reality?" (1999‑2000), 11 N.J.C.L. 411, at pp. 432‑34, and M. Rosenberg and S. Perrault"Ifs and Buts in Charter Adjudication: The Unruly Emergence of Constitutional Exemptions in Canada" (2002), 16 S.C.L.R. (2d) 375, at pp. 380‑82) .
47Without recourse to reasonably foreseeable scenarios, the judiciary's capacity to ensure effective constitutional review would be undermined. Among other things"bad laws might remain on the books indefinitely" ( Nur , at para. 51 ), exposing each and every individual to the consequences of the application of unconstitutional laws. Yet the rule of law requires, inter alia , that no one "be sentenced under an invalid statute" ( Lloyd , at para. 16 ; see also Hills , at para. 73 ). These principles were vigorously affirmed by McLachlin C.J. in Nur : Refusing to consider reasonably foreseeable impacts of an impugned law would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order. The protection of individuals' rights demands constitutional review that looks not only to the situation of the offender before the court, but beyond that to the reasonably foreseeable reach of the law. Testing the law against reasonably foreseeable applications will prevent people from suffering cruel and unusual punishment in the interim until the mandatory minimum is found to be unconstitutional in a particular case. Refusing to consider an impugned law's impact on third parties would also undermine the prospect of bringing certainty to the constitutionality of legislation, condemning constitutional jurisprudence to a wilderness of single instances. Citizens, the police and government are entitled — and indeed obliged — to know what the criminal law is and whether it is constitutional. Looking at whether the mandatory minimum has an unconstitutional impact on others avoids the chilling effect of unconstitutional laws remaining on the statute books. [Emphasis added; paras. 63‑64.]
48The position adopted by this Court reflects the principle that the rule of law, enshrined in s. 52(1) of the Constitution Act, 1982 , cannot depend on the expectation that each individual faced with an unconstitutional law will have the resources or the will needed to challenge its validity. This position also promotes certainty and avoids "impair[ing] the right of citizens to know what the law is in advance and govern their conduct accordingly — a fundamental tenet of the rule of law" ( Ferguson , at para. 72 ; see also R. v. Sullivan , 2022 SCC 19 , [2022] 1 S.C.R. 460, at para. 71 ). However, beyond the rule of law, constitutional certainty for all"independent of one's ability to bring a legal proceeding, is paramount to the Charter " and is essential to ensure true access to justice (P. Daly et al."The Effect of Declarations of Unconstitutionality in Canada" (2022), 42 N.J.C.L. 25, at p. 44). The Court has repeatedly emphasized the inextricable link between the rule of law and access to justice ( Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) , 2014 SCC 59 , [2014] 3 S.C.R. 31, at para. 39 ). Neither principle can exist without the other, as otherwise "the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice" ( B.C.G.E.U. v. British Columbia (Attorney General) , [1988] 2 S.C.R. 214, at p. 230). The use of reasonably foreseeable scenarios is therefore indispensable to effective constitutional review, because the objective is to ensure that it applies to all citizens, and not only to the person in a position to challenge the validity of a law.
49This is especially so given that the presence of unconstitutional minimum sentences can influence the dynamics of plea bargaining. There can be an "almost irresistible" incentive for an accused to enter a guilty plea in order to avoid a long mandatory minimum sentence ( Nur , at para. 96 ). For this reason, these sentences " [are] shaping outcomes in ways that are not only insulated from judicial review but entirely invisible to the court" (L. Kerr and M. Perlin"A New Justification for Section 12 Hypotheticals and Two Rules for Constructing Them" (2025), 5 S.C.L.R. (3d) 179, at p. 191) . This additional observation illustrates the importance of using reasonably foreseeable scenarios to assess the constitutionality of mandatory minimum sentences "rather than leaving them on the books" (p. 192).
50Our case law also seeks to prevent a multiplicity of identical legal challenges within the same jurisdiction, an objective that encourages the effective use of judicial resources ( Hills , at para. 73 ). When a court empowered to make formal declarations of inoperability under s. 52(1) of the Constitution Act, 1982 (see Lloyd , at para. 15 ) declares that a minimum sentence is unconstitutional"[t]he doctrine of stare decisis extends the effect of that judgment beyond the parties to the case, erga omnes within the province at least — subject to the limits of the doctrine itself" ( Sullivan , at para. 55 ). It follows that, as Vauclair J.A. noted in Griffith v. R. , 2023 QCCA 301 , when a court empowered to make such a declaration [ translation ] " can rule on the constitutionality of a mandatory minimum sentence, it should do so, since declining to decide an issue 'would . . . cost other courts and justice system participants additional resources in the longer term'" (para. 64, quoting R. v. Poulin , 2019 SCC 47 , [2019] 3 S.C.R. 566, at para. 24 (emphasis in original deleted), and citing Hills , at para. 73 ; see also R. v. E.O. , 2019 YKCA 9 , 374 C.C.C. (3d) 338, at para. 38 ).
51In short, Nur confirmed the importance of reasonably foreseeable scenarios in the s. 12 analysis. It unequivocally rejected "the argument that reasonable hypotheticals should be abandoned and that the primary or exclusive focus ought to be on the offender before the court" ( Hills , at para. 71 , citing Nur , at paras. 48‑64 , and C. Fehr"Tying Down the Tracks: Severity, Method, and the Text of Section 12 of the Charter " (2021), 25 Can. Crim. L.R. 235, at p. 240). Hills affirmed this principle. Bertrand Marchand is the most recent reiteration of this.
52In this appeal, neither the parties nor the courts below called into question the use of reasonably foreseeable scenarios in the s. 12 analysis. Yet my colleagues, like Ruel J.A., propose an interpretation of the law that would have the effect of considerably limiting their use. As I will explain, in my respectful view, this approach is not consistent with the jurisprudence of this Court. #### (2) Clarifying the Terminology
53The terms "scenario" and "hypothetical" have been used interchangeably by this Court.
54I suggest giving preference to the expression "reasonably foreseeable scenario". Even though the term "hypothetical" is not in itself erroneous, setting it aside could better reflect the idea that the exercise involves determining "the reasonable reach of a law[, which] is essentially a question of statutory interpretation" ( Nur , at para. 61 ; see also R. v. Morrison , 2019 SCC 15 , [2019] 2 S.C.R. 3, at paras. 170‑71 , per Karakatsanis J., concurring). The identification of a reasonably foreseeable scenario must never turn into fanciful speculation. It must instead result from a meticulous interpretative exercise that is grounded in "judicial experience and common sense" ( Nur , at para. 62 ). #### (3) The Characteristics of a Reasonably Foreseeable Scenario
55When the analysis is conducted with the assistance of a situation other than that of the offender challenging the constitutionality of a minimum sentence, it can be difficult to decide on a particular scenario. Useful guidance has, however, been provided by this Court: (i) The hypothetical must be reasonably foreseeable; (ii) Reported cases may be considered in the analysis; (iii) The hypothetical must be reasonable in view of the range of conduct in the offence in question; (iv) Personal characteristics may be considered as long as they are not tailored to create remote or far‑fetched examples; and (v) Reasonable hypotheticals are best tested through the adversarial process. ( Hills , at para. 77 )
56Given the view of the law proposed by my colleagues, it appears necessary to review the way in which our case law has characterized what constitutes a reasonably foreseeable scenario. In the context of an analysis under s. 12 of the Charter , the term "scenario" encompasses both the circumstances of the commission of the offence and the personal characteristics of the accused. These two elements must be reasonably foreseeable. I will examine each of them in turn. ##### (a) The Circumstances of the Offence Must Be Reasonably Foreseeable
57It must be established that the circumstances of the offence under consideration "are . . . captured by the minimum conduct caught by the offence" ( Nur , at para. 68 ; see also Hills , at paras. 79‑80 and 83 ). The range of conduct caught by the offence with which the minimum sentence is associated is determinative, because it is permissible to identify circumstances of the commission of the offence that are at the low end of the gravity scale and that, accordingly"test" the constitutionality of the minimum sentence associated with it ( Hills , at para. 82 ; Nur , at para. 103 ). The circumstances underlying the scenario identified will not be reasonably foreseeable if they are fanciful, outlandish, far‑fetched, merely speculative or marginally imaginable ( R. v. Goltz , [1991] 3 S.C.R. 485, at p. 505‑6; Nur , at para. 54 ; Hills , at paras. 78, 83 and 92 ). All of these qualifiers used over the years call upon the ability of judges to interpret the law and to assess the scope of an offence using their common sense and judicial experience ( Nur , at para. 62 ).
58From this perspective, the consideration of reported cases often proves useful, because they "illustrate the range of real‑life conduct captured by the offence. . . . Not only is the situation in a reported case reasonably foreseeable, it has happened" ( Nur , at para. 72 ; see also Hills , at para. 81 ). The best way to distinguish the circumstances of the commission of the offence that are reasonable from those that are not is to look to the virtues of the adversarial process ( Hills , at para. 93 ). The parties' submissions also ensure that the process is fair and transparent ( ibid. ). When the Crown and the defence agree on the foreseeable scenario the court should use to undertake the analysis, this is a strong indication that the foreseeable scenario is reasonable. ##### (b) The Representative Offender Must Have Personal Characteristics That Are Reasonably Foreseeable
59In keeping with Nur , Lloyd and R. v. Boudreault , 2018 SCC 58 , [2018] 3 S.C.R. 599, Hills confirmed that "characteristics that are reasonably foreseeable for offenders in Canadian courtrooms" may be taken into account ( Hills , at para. 84 ). Characteristics like "age, poverty, race, Indigeneity, mental health issues and addiction" should thus not be excluded from the analysis ( ibid. , at para. 85 ). In addition, it is possible to use actual reported cases to construct a scenario ( Nur , at para. 72 ).
60That being said, the personal characteristics used for the s. 12 analysis must "present a reasonably foreseeable offender" ( Hills , at para. 91 (emphasis deleted), citing Nur , at para. 75 ). A court must be cautious about personal characteristics that are "so uniquely tailored to the particular case as to be remote" ( Hills , at para. 91 ), as this could lead to the creation of fanciful scenarios. These qualifiers must be read in accordance with the guidance from our case law, which establishes that a reasonably foreseeable scenario need not be "common" or "likely" ( Nur , at para. 76 ; Hills , at paras. 78 and 92 ). ##### (c) The Expression "Remote" ("n'ayant qu'un faible rapport avec l'espèce")
61The dissenting judge of the Court of Appeal refused to consider the reasonably foreseeable scenarios submitted by the respondents for the purposes of the s. 12 analysis. He deemed all of them too remote (" n'ayant qu'un faible rapport avec l'espèce "). My colleagues follow Ruel J.A.'s approach and propose a connection test between the case before the court and the reasonably foreseeable scenario. This approach is based on the expression "remote" used in R. v. Goltz , [1991] 3 S.C.R. 485.
62Our disagreement originates in a phrase in the French version of Goltz (" sur le fondement d'exemples extrêmes ou n'ayant qu'un faible rapport avec l'espèce ") that has been repeated on several occasions. Gonthier J., writing for the majority in Goltz , described a "reasonable hypothetical" as follows: A reasonable hypothetical example is one which is not far-fetched or only marginally imaginable as a live possibility. While the Court is unavoidably required to consider factual patterns other than that presented by the particular case before it, this is not a licence to invalidate statutes on the basis of remote or extreme examples . [Emphasis added; pp. 515‑16.]
63The underlined passage in this excerpt from Goltz was repeated in R. v. Morrisey , 2000 SCC 39 , [2000] 2 S.C.R. 90, at para. 30 , then in Nur , where McLachlin C.J. stated the following: The reasonable foreseeability test is not confined to situations that are likely to arise in the general day‑to‑day application of the law. Rather, it asks what situations may reasonably arise. It excludes only situations that are "fanciful or remote" — situations that are "far-fetched" or only "marginally imaginable". [Emphasis added; para. 76.]
64This phrase also appears in Hills (paras. 77‑79 ) and Hilbach (paras. 87‑88 ).
65Despite its continuous presence in our case law, I note that the exact meaning of the French expression " faible rapport avec l'espèce " has never been discussed. In the English version of Goltz , as reproduced above, the expression " n'ayant qu'un faible rapport avec l'espèce " was translated as "remote". That this English word was used to translate the French expression " n'ayant qu'un faible rapport avec l'espèce " should not be interpreted as introducing a test requiring a connection between the scenario and the case. Indeed, based on the context in which it was used in Goltz , this English expression means that the scenario must not be speculative, far‑fetched, fanciful or outlandish. As for the French expression " n'ayant qu'un faible rapport avec l'espèce ", it must be read in the same manner, as meaning that the scenario identified is too far‑fetched.
66In the above‑quoted excerpt from Goltz (pp. 515‑16), the expression "on the basis of remote or extreme examples" is used just after the sentence stating that "[a] reasonable hypothetical example is one which is not far-fetched or only marginally imaginable as a live possibility". In the context of the sentence preceding it, the word "remote" is used in the sense of "speculative" or "fanciful" — not in the sense of "too distant from the facts of the case". This is evidenced by the fact that, in the French version of the judgment, the word "remote" was translated as " n'ayant qu'un faible rapport avec l'espèce ". This expression literally means "having only a weak connection with the case", which has nothing to do with the facts of the case to be adjudicated, but instead with the plausibility of the scenario. This is also the understanding that emerges from Goltz : "Remote examples may include situations where someone is caught with a weapon in a technically illegal manner" (p. 515). This passage clearly suggests that what is described is an implausible scenario (someone who is charged with an offence based on the most technical interpretation of the offence provisions), not a scenario that is unrelated to the facts of the case.
67Similarly, in the above‑quoted excerpt from Nur , the ambiguous passage from Goltz was quoted in a paragraph stating that a reasonably foreseeable scenario need not be "common" or "likely" (para. 76). Reading those two sentences together clearly shows that the word "remote" as used in Nur (and by extension in Goltz ) means "speculative""marginally imaginable" or "far‑fetched" — not "unrelated to the facts of the case".
68Respectfully, the interpretation of Goltz advanced by my colleagues is also inconsistent with Hills . The factual proximity test they propose undermines this Court's direction that the incorporation of the notion of "minimum conduct" helps to determine what constitutes a reasonably foreseeable scenario: the "aim is to identify foreseeable circumstances of the offence that bring the least culpable conduct within the scope of the offence" ( Hills , at para. 80 ). Even if a scenario that reflects the minimum conduct does not share many features with the case before the court, it can constitute a reasonably foreseeable scenario. My colleagues' test would prevent courts from conducting a proper review of the constitutionality of mandatory minimum sentences.
69Three additional reasons support the rejection of the position taken by my colleagues.
70First, considering the effect of mandatory minimum sentences by reference to reasonably foreseeable scenarios is essential to effective constitutional review. Requiring a certain connection between the facts of a case and a reasonably foreseeable scenario would frustrate the possibility of assessing the constitutionality of a minimum sentence in light of certain reasonably foreseeable scenarios, including those that reflect conduct at the low end of the gravity scale and that nevertheless trigger the application of the mandatory minimum sentence. This would undermine the Court's instruction to select "a range of . . . conduct to which the mandatory minimum sentence . . . applies" when assessing its constitutionality ( Nur , at para. 83 ).
71Second, the position adopted by my colleagues is contradicted by the reasonably foreseeable scenarios that this Court very recently considered. For example, the reasonably foreseeable scenarios used to assess the mandatory minimum sentence for child luring in Bertrand Marchand were: - The representative offender is a first‑year high school teacher in her late 20s with no criminal record. The offender has been diagnosed with bipolar disorder. One evening, she texts her 15‑year‑old student, who is struggling with mental health issues, to see how he is doing. The conversation turns sexual. Over the next two months, the offender sends the student a series of sexual messages. However, the relationship does not go beyond text messages (para. 136). - The representative offender is an 18‑year‑old who is in a romantic and sexual relationship with a 17‑year‑old. In one text message, the offender asks her to send him an explicit photo. She does, and the offender sends back an explicit photo of himself. This exchange occurs on one occasion only (para. 148).
72The specific facts of the offences committed by Mr. Bertrand Marchand were very different from these scenarios ( Bertrand Marchand , at paras. 17‑19 ). Mr. Bertrand Marchand was nine years older than the young girl he lured, and the offences were committed over a period of 10 months and were described as "systematic" and "calculated". My colleagues do not explain why the scenarios at issue in Bertrand Marchand would satisfy the connection test they now propose. This illustrates why their test would dramatically curtail the ability of courts to conduct effective constitutional review, the very result that was rejected in Nur and Hills .
73Another example can be taken from Hills . Mr. Hills had fired several rounds from a hunting rifle into a residential home, knowing that or being reckless as to whether it was occupied. He charged with using a firearm while committing the offence of criminal harassment ( Hills , at para. 5 ). The reasonably foreseeable scenario this Court chose to assess the constitutionality of the minimum sentence for discharging a firearm recklessly (which was the offence charged) was a person who fires a gun "into the air in a rural area" ( Hills , at para. 92 ). This scenario is very far from the facts of Mr. Hills's case, but it was chosen because it reflected the minimum conduct caught by the offence.
74The scenarios chosen by this Court in Hills and Bertrand Marchand confirm that my colleagues are isolating the word "remote" from the rest of our case law. Our jurisprudence has consistently emphasized that scenarios need not be common or likely. The scenarios in Hills and Bertrand Marchand illustrate that a scenario can have very few features in common with the case before the court and can nonetheless remain a valid reasonably foreseeable scenario.
75In short, the s. 12 analysis does not require factual proximity between the reasonably foreseeable scenario and the case at hand.
76In their reasons, my colleagues maintain that they are simply clarifying the law on s. 12 (para. 201). In my view, the test that they introduce constitutes a significant departure from our precedents. As I will explain, this Court should not adopt that new test.
77The doctrine of stare decisis , or of precedent, is essential to the legitimacy of the courts, in that it "furthers basic rule of law values such as consistency, certainty, fairness, predictability, and the appearance of impartiality" ( Canada (Attorney General) v. Power , 2024 SCC 26 , at para. 48 , quoting R. v. Henry , 2005 SCC 76 , [2005] 3 S.C.R. 609, at para. 53 ). As this Court noted in Power , stare decisis is not absolute, but there are strong reasons for binding precedents "to be respected until they are properly overruled" (para. 48, quoting Henry , at para. 53 ).
78Here, there is no compelling reason to depart from the precedent established by the Court's jurisprudence on reasonably foreseeable scenarios, and no party has asked us to do so. My colleagues offer no evidence that this jurisprudence has been unworkable or has produced unjust results in practice. As I will explain, the courts have distinguished workable ways to identify a reasonably foreseeable scenario that is not far‑fetched, speculative or outlandish, without resorting to a proximity requirement.
79Third, their constitutional analysis poses a significant risk for the review of mandatory minimum sentences in the case of Indigenous offenders. Limiting the analysis to personal characteristics that are not too far from the case before the court might prevent the proper assessment of how mandatory minimum sentences affect Indigenous offenders. The Court has repeatedly emphasized that Indigeneity must be considered in sentencing analyses (see Gladue ; Ipeelee ; R. v. Sharma , 2022 SCC 39 ).
80Yet the Court emphasized in Hills that Indigeneity is a relevant personal characteristic for reasonably foreseeable scenarios, particularly in view of the fact "that Indigeneity is an offender characteristic that has a proven nexus with systemic factors contributing to criminal behaviour" ( Hills , at para. 85 ). If my colleagues' approach were to be adopted, and if the case before the court happened to have no Indigenous offender, the courts would be deprived of the ability to use a reasonably foreseeable scenario involving an Indigenous offender to examine the constitutionality of the mandatory minimum sentence. This would curtail effective constitutional review in a manner inconsistent with this Court's direction in Hills . ##### (d) The Expression "Extreme Examples"
[81] My colleagues also observe that certain foreseeable scenarios cannot be reasonable because they constitute examples that are "too extreme" (para. 219). They propose, among other things, to exclude scenarios involving offenders with certain types of disabilities. Respectfully, I disagree. Such proposals risk perpetuating the "othering" of persons with disabilities by treating their characteristics as extreme rather than recognizing that they are part of the spectrum of conditions that can reasonably affect individuals — including those who come before courts for sentencing. Their approach could prevent courts from properly taking into account characteristics like mental health issues when examining the constitutionality of mandatory minimum sentences. This would be inconsistent with the Court's direction in Hills (at para. 85) and in Boudreault (at paras. 56‑57 ) that characteristics like mental health issues are relevant to the s. 12 analysis. ## V. Application ### A. The Reasonably Foreseeable Scenario Chosen
V. Application
[82] It is not disputed that the mandatory minimum sentences of one year's imprisonment provided for in s. 163.1(4) (a) and (4.1) (a) Cr. C. do not impose punishment that is grossly disproportionate in relation to the respondents. Before this Court, the parties focused their arguments on one particular reasonably foreseeable scenario.
A. The Reasonably Foreseeable Scenario Chosen
83One reasonably foreseeable scenario in particular was addressed by the parties in their factums and during the hearing before the Court. It was also examined by the three appellate judges and is described in numerous decisions of lower courts from across the country: - An 18‑year‑old receives on his cell phone, from his friend of the same age, a "sext" originally from the friend's girlfriend, who is 17 years old. The "sext" in question is a photograph of that 17‑year‑old. This 18‑year‑old does not delete it from his cell phone immediately.
84Assuming, for the purposes of this appeal, that the 18‑year‑old ("representative offender") also looked at the photograph during a brief period of time while knowing that it constituted child pornography within the meaning of the Criminal Code .
85The representative offender consequently committed the offences of possession of child pornography (s. 163.1(4)(a) Cr. C. ) and accessing child pornography (s. 163.1(4.1)(a)).
86This scenario may be used for the analysis under s. 12 of the Charter . First, the circumstances of the commission of the crimes are foreseeable. The phenomenon of "sexting" among teenagers has been widely documented. In the age of digital communication, it is not far‑fetched that an 18‑year‑old receives from a friend an image that corresponds to the definition of child pornography. The offence can be committed through a wide variety of means or methods, and at one end of the spectrum of offending, there are offenders who, one day, passively receive and keep material.
[87] Importantly, it is the appellants who brought the contours of this scenario to the Court's attention (A.F., at para. 89), and the Attorney General of Quebec's representative confirmed at the hearing that this scenario was being advanced as one on which the Court could base its analysis. The scenario "illustrates" the minimum conduct caught by the offences of possession and accessing. It has been identified in lower court decisions from across the country as a scenario that might render a minimum sentence disproportionate. Furthermore, the facts of this scenario "are . . . captured by the minimum conduct caught by" ( Nur , at para. 68 ) these offences: the scenario involves the possession of one image, whereas the definition of possession in s. 163.1(4) Cr. C. does not require more than one image. ### B. The First Stage: The Appropriate Sentence for the Representative Offender
B. The First Stage: The Appropriate Sentence for the Representative Offender
88The 18‑year‑old representative offender accessed child pornography and deliberately kept it on his cell phone. In doing so, he contributed to the serious violation of the privacy and dignity of the 17‑year‑old victim. He must be made aware of the seriousness of his actions and of the harm they cause. Nevertheless, the appellants concede that the appropriate sentence for the representative offender is not a sentence of one year's imprisonment.
89The appellants argue, without elaborating, that [ translation ] "this representative offender should be given an unconditional term of imprisonment" (A.F., at para. 93). The same point of view was expressed by the respondents and by the Quebec Director of Criminal and Penal Prosecutions in the lower courts. For the following reasons, this assertion is not convincing.
90First, it neglects the teaching of Hills according to which it is important to determine with precision the appropriate sentence (paras. 63‑65). Given a premise as imprecise as that the appropriate sentence is an unconditional term of imprisonment, it is not possible to properly assess whether the disparity between the fit sentence and the mandatory minimum sentence rises to the level of gross disproportionality.
91Second, postulating the inevitability of an unconditional term of imprisonment for the representative offender undermines the principles of sentencing.
92Certainly, for offences involving the abuse of children, including crimes related to child pornography, the objectives of denunciation and deterrence must be given "primary consideration" (s. 718.01 Cr. C. ; Friesen , at para. 104 ). In keeping with this Court's decision in Friesen , the sentence imposed must denounce the crime.
93While complying with these requirements, sentencing judges retain "discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in child pornography sentencing" ( Friesen , at para. 104 ). This discretion takes on special significance when the offender is a young adult.
94Martin J.'s comments in Bertrand Marchand , where the impugned mandatory minimum sentence was for the offence of child luring, are entirely applicable to the representative offender: . . . the criminalized conduct in this case indicates a lack of guidance or adult mentorship more than it does the offender's criminal intent (para. 161). Rehabilitation and individual deterrence are important objectives in sentencing youthful first‑time adult offenders, particularly where criminalized conduct is more indicative of youthful folly, inexperience, or ignorance of the law than criminal intent. [para. 162] (See also Hills , at para. 161 .)
95An offender's youth is generally a mitigating factor, and "when sentencing youthful first‑time adult offenders, judges must practice restraint, prioritize rehabilitation and account for immaturity and reduced moral culpability" ( R. v. A.L. , 2025 ONCA 9 , 100 C.R. (7th) 176, at para. 76 ; see also R. v. Wesley , 2025 ONCA 51 , 175 O.R. (3d) 166, at para. 56 , quoting R. v. Habib , 2024 ONCA 830 , 99 C.R. (7th) 110, at para. 93 ).
96The principle of restraint, embodied in s. 718.2(d) and (e) Cr. C. ( R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, at para. 100 ), is of increased importance in the case of a youthful first‑time offender. In such a case, non‑carceral sentences can appropriately promote denunciation and deterrence while also prioritizing rehabilitation ( Hills , at para. 161 ; Bertrand Marchand , at para. 162 ).
97The appellants' argument disregards those considerations and implies that, for certain crimes, regardless of the circumstances and the characteristics of the offender, the severity of a sentence is a fixed and immutable element. This is inconsistent with the principle of individualization. It would establish de facto mandatory minimum sentences, irrespective of the regime created by Parliament.
98I note that, like the appellants, the respondents did not suggest a specific sentence for the representative offender and instead merely stated that it is clear that the minimum sentence of one year's imprisonment would be grossly disproportionate. The intervener Canadian Civil Liberties Association noted that a conditional discharge (with, for example, probation conditions relating to treatment and no Internet access) would also be available and might be considered appropriate for the representative offender.
[99] Although the acts committed by the representative offender are serious and deserve to be denounced, they fall at the lowest end of the gravity scale for the crimes of accessing and possession of child pornography. Furthermore, the offender's youth and the absence of a criminal record invite restraint. For the representative offender, the fit sentence would be a conditional discharge with strict probationary terms (C. Dauda and D. McNabb"Getting to Proportionality: The Trouble with Sentencing for Possession of Child Pornography in Ontario" (2021), 37 Windsor Y.B. Access Just. 278, at pp. 302‑9; see also Marien Frenette v. R. , 2024 QCCA 207 , at para. 71 ; Bérubé-Gagnon v. R. , 2020 QCCA 1382 , at para. 27 ; R. v. Brisson , 2014 QCCA 1655 , at para. 9 ; Casavant v. R. , 2025 QCCA 20 , at para. 45 ; R. v. Houle , 2023 QCCA 99 , at para. 66 ; Nadeau v. R. , 2020 QCCA 445 , at para. 31 ; Harbour v. R. , 2017 QCCA 204 , at para. 37 ; Charbonneau v. R. , 2016 QCCA 1567 , at para. 32 ). ### C. The Second Stage: The Threshold of Gross Disproportionality Is Met
C. The Second Stage: The Threshold of Gross Disproportionality Is Met
100Imposing a sentence of one year's imprisonment on the young 18‑year‑old representative offender when a fit sentence would be a conditional discharge with strict probationary terms would constitute cruel and unusual punishment. As the Ontario Court of Appeal pointed out in John (at para. 39), which was based on a similar scenario to the one before us: I am of the view that the application of the mandatory minimum sentence to the offender in the third hypothetical is grossly disproportionate. Most members of the community would consider a six‑month term of imprisonment (the former mandatory minimum) applied to a young man or woman with no criminal record for inadvertently keeping a sexted image for a short time simply shocking. [Emphasis added.] ( John , at para. 39 (emphasis added))
101I agree with this observation. As is demonstrated by these cases, the grossly disproportionate nature of the impugned minimum sentences is clear. Consideration of the "three crucial components" confirms this. #### (1) The Reach of the Offence With Which the Mandatory Minimum Sentence Is Associated
102Parliament is free to create mandatory minimum sentences, but these sentences are constitutionally vulnerable when they are associated with crimes that encompass a wide range of conduct. The broader the range of conduct covered by the offence, the less we can be assured that the minimum sentence will always be proportionate ( Nur , at para. 82 ; Hills , at para. 125 ).
103There is no question that the crime "of possession of child pornography is extremely broad" ( R. v. Swaby , 2018 BCCA 416 , 367 C.C.C. (3d) 439, at para. 97 ). First, given the definition of "child pornography" in s. 163.1(1) Cr. C. , the crime of possession of child pornography captures images of real or fictional children, sexual content and content that may be deemed "educational" ( Sharpe , at paras. 35‑59 and 72‑75 ; R. v. Katigbak , 2011 SCC 48 , [2011] 3 S.C.R. 326, at para. 39 ).
104Second, and most importantly, there are a "wide variety of circumstances in which the possession offence can be committed" ( Pike , at para. 175 ). Indeed, this crime captures both the well‑organized offender who methodically accumulates a large quantity of child pornography showing the most extreme images of abuse committed against children, and the offender who, one day, passively receives and keeps a single image showing a 17‑year‑old.
105These observations are sufficient to understand that the application of the offence of possession of child pornography covers a very wide range of circumstances. They can be transposed, with the necessary adaptations, to the crime of accessing child pornography. #### (2) The Effects of the Penalty on the Offender
106The harm that a sentence of one year's imprisonment causes to a representative offender should not be underestimated. The experience of prison is likely to be particularly harmful to a young offender. Imprisonment carries real risks for the representative offender: "incarceration deprives an individual of most decision‑making authority and can interfere with the formation of life skills, healthy relationships, and education or career development" ( R. v. Suter , 2018 SCC 34 , [2018] 2 S.C.R. 496, at para. 48 ; see also Hills , at paras. 136‑37 ). Imprisonment risks being very harmful to the representative offender without promoting his awareness and his rehabilitation.
107Even though the representative offender chosen does not have mental health issues, I note that, in a number of real cases that have come before the courts, it has been found that prison would have caused severe harm to the offenders (see, e.g., Duclos , at para. 24 ; Delage , at para. 31 ; R. v. X. , at para. 70 ; R. v. M.L ., 2020 MBPC 30 , at para. 107 ; R. v. B.M.S. , 2016 NSCA 35 , 373 N.S.R. (2d) 298, at para. 47 ; Courchesne v. R. , 2024 QCCA 960 , at para. 78 ; R. v. A.L. , 2025 ONCA 9 , at paras. 77‑78 ; R. v. Wesley , 2025 ONCA 51 , at paras. 59‑62 ).
108The mandatory application of a minimum sentence of imprisonment for criminal conduct for which the fit sentence is not imprisonment is a strong indicator of its unconstitutionality given the right protected by s. 12 of the Charter ( Hills , at para. 134 ). #### (3) The Sanction and Its Objectives
109In 2005, Parliament passed the Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act , S.C. 2005, c. 32, and introduced mandatory minimum sentences for the offences of possession and accessing of child pornography. These minimum sentences were increased twice since then (see R. v. Régnier , 2018 QCCA 306 , at para. 55 ; Morrisey , at para. 31 ) and are currently set at one year's imprisonment for those offences when prosecuted by indictment.
110These initiatives demonstrate Parliament's intention to ensure that crimes related to child pornography lead to sentences that emphasize denunciation and deterrence. This choice is consistent with s. 718.01 Cr. C. , which specifies that "primary consideration" shall be given to the objectives of denunciation and deterrence for offences that involve the abuse of a person under 18 years of age.
111This Court has acknowledged the paradigm shift initiated by Parliament. In Friesen , it stated that sentences imposed for sexual offences against children must "correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes" (para. 107).
112In this context, the impugned mandatory minimum sentences go beyond what is necessary to attain their objectives. Parliament's other initiatives and the state of the case law since Friesen show that the denunciation and deterrence of these offences can be ensured without the imposition of a minimum sentence of one year's imprisonment. As I noted earlier, Parliament has provided for strict ancillary orders ( ss. 161 , 163.1(5) and (6) and 719(3) Cr. C. ), and the recent amendments to the Criminal Code further reinforce that approach. Moreover, there is no doubt that the courts have followed the guidance provided by Friesen in relation to the specific offences of possession and accessing of child pornography (see, e.g., Régnier , at para. 55 ; Courchesne v. R. , 2024 QCCA 960 , at para. 56 ).
113While it can be assumed that the impugned mandatory minimum sentences contribute to the prioritization of these objectives, they also have the effect of removing judges' discretion to impose sentences other than imprisonment in the appropriate circumstances. As explained above, the principle of restraint and the objective of rehabilitation can coexist with the Friesen framework in the sentencing of young adults.
114As they presently stand, the impugned minimum sentences lead, in all cases where the offence is prosecuted by indictment, to the imposition of sentences of imprisonment of at least one year. They thus prevent the imposition of conditional discharges in all such cases. As stated by Wagner C.J. (as he then was) in R. v. Boudreault , 2018 SCC 58 , [2018] 3 S.C.R. 599, the conditional discharge is a "flexible and broadly remedial sentencing tool" that allows courts to "craft a just and appropriate sentence without resorting to a formal conviction" (para. 3). It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community, and the promotion of a sense of responsibility through the use of, for example, community service orders, treatment programs and restitution. It also avoids the collateral consequences of a formal conviction, such as immigration consequences and employment limitations. [Ibid.]
115The impugned minimum sentences also prevent the imposition of intermittent sentences, which are, in many instances, better suited to assist in rehabilitating an offender (see Bertrand Marchand , at para. 165 ; Friesen , at para. 107 ). In addition, they prevent the imposition of conditional sentences (see s. 742.1(b) Cr. C. , which states that a conditional sentence is not available if the "minimum punishment for the offence is imprisonment for a term of two years or more", leaving open the possibility that conditional sentences may otherwise be available for offences with shorter mandatory minimums). As was pointed out in Bertrand Marchand , a conditional sentence "would allow a judge to craft a supervision program that addresses the risk factors specific to the young adult" (para. 165).
116Finally, accessing and possession of child pornography are hybrid offences. Sections 163.1(4) (b) and 163(4.1)(b) Cr. C. specify that these offences may be prosecuted summarily and, on conviction, lead to a minimum sentence of six months' imprisonment. The fact that Parliament has chosen to create hybrid offences with minimum sentences of only six months in the summary conviction option, rather than one year in the indictable option, supports the position that the impugned mandatory minimum sentences of one year go beyond what is necessary to attain Parliament's sentencing objectives for these crimes. #### (4) Conclusion Regarding the Second Stage of the Analysis
[117] Considering the reach of offences with which the mandatory minimum sentences are associated, the objectives of these sanctions and their effects on offenders, a sentence of one year's imprisonment imposed on the 18‑year‑old representative offender when the fit sentence is a conditional discharge with strict probationary terms is grossly disproportionate. The threshold of s. 12 of the Charter is met. ## VI. Conclusion
VI. Conclusion
[118] For these reasons, I would dismiss the appeal. The minimum sentences set out in s. 163.1(4) (a) and (4.1) (a) of the Criminal Code are contrary to s. 12 of the Charter and are not saved by s. 1 . In keeping with s. 52(1) of the Constitution Act, 1982 , they are of no force or effect. --- English version of the reasons of Wagner C.J. and Côté, Rowe and O'Bonsawin JJ. delivered by The Chief Justice and Côté J. — ## I. Overview
Dissenting Reasons: I. Overview
119Child pornography has unquestionably become a scourge both nationally and internationally. It destroys countless innocent lives. Each pornographic photograph, video or audio recording that involves a child is an act of exploitation that will leave the child with deep and lasting scars.
120Whether it depicts real or fictional children, child pornography normalizes the exploitation of minors and trivializes their objectification. By promoting the dissemination and acceptance of sexualized representations of children, the consumption of child pornography — in all its forms — encourages attitudes and behaviour that lead to irreversible harm.
121The message sent by this Court's decision in R. v. Friesen , 2020 SCC 9 , [2020] 1 S.C.R. 424, could not be any clearer: the sentencing process must convey the profound wrongfulness and harmfulness of offences against children. As this Court noted again recently"[s]exual offences against children are among the most profoundly immoral acts an individual can commit" ( R. v. Sheppard , 2025 SCC 29 , at para. 1 ). The censure of society and the law must be reflected consistently and rigorously in the sentences imposed on offenders who are guilty of sexual offences against minors. These sentences take into account the collective harm caused by such acts and the penological objectives of denunciation and deterrence, which are of paramount importance in such cases. Through the imposition of more severe sentences, the justice system expresses society's deep and rightful indignation. A fit and proportionate sentence is one that is consistent with the teachings of Friesen and that gives effect to Parliament's intention that sexual offences against children be punished more heavily.
122The recent legislative changes enacted by Parliament include increasing the maximum sentences for child pornography offences and, in the case of the offences of possession and accessing, deciding to also increase the minimum sentences, which since 2015 have been set at one year's imprisonment ( Tougher Penalties for Child Predators Act , S.C. 2015, c. 23, s. 7).
123The respondents, Louis‑Pier Senneville and Mathieu Naud, who were convicted of various child pornography offences, rely on s. 12 of the Canadian Charter of Rights and Freedoms to challenge the constitutionality of the mandatory minimum sentences of one year's imprisonment provided for in the Criminal Code , R.S.C. 1985, c. C‑46 (" Cr. C. "), for the offences of possession of child pornography and accessing child pornography when prosecuted by indictment ( s. 163.1(4) (a) and (4.1) (a)).
124The respondents were successful in the courts below. The Quebec Court of Appeal declared the impugned provisions to be of no force or effect against all persons under s. 52(1) of the Constitution Act, 1982 . A majority of the Quebec Court of Appeal found that the impugned provisions infringed the rights of representative offenders in reasonable hypothetical scenarios. It is this finding more specifically that the appellants are appealing to this Court.
125We would allow the appeal and set aside the Quebec Court of Appeal's declaration that the impugned provisions are of no force or effect against all persons. It has not been shown that the minimum sentences provided for in s. 163.1(4) (a) and (4.1) (a) Cr. C. constitute cruel and unusual punishment within the meaning of s. 12 . The impugned provisions are therefore constitutionally valid and operative.
126When a constitutional challenge under s. 12 is based on a hypothetical scenario, as here, the hypothetical scenario chosen must still be "reasonable". R. v. Goltz , [1991] 3 S.C.R. 485, established that, to be "reasonable", the hypothetical scenario cannot be an extreme example and must have more than a remote connection with the case. This requires that it have a sufficient factual and legal connection with the case before the court. If a hypothetical scenario is not sufficiently related to the case in question, the court cannot consider it to determine the constitutionality of the impugned provision. Thus, while this Court can "consider factual patterns other than that presented by the . . . case [before the Court], this is not a licence to invalidate statutes on the basis of remote . . . examples" (p. 515). This requirement remains relevant to this day. Indeed, it plays an essential role in maintaining the integrity of the justice system and public confidence in the administration of justice.
[127] Among all the hypothetical scenarios considered in the course of an adversarial process, none has a sufficient factual and legal connection with the two cases before us. Some are also too extreme. Consequently, none of them is a reasonable hypothetical scenario that can be considered to determine the constitutionality of the impugned provisions. This suffices to end the s. 12 analysis. We do not have to determine what a fit and proportionate sentence would be for the representative offender in a hypothetical scenario or to decide whether the impugned minimum sentences require the imposition of grossly disproportionate punishment. ## II. Background and Judicial History ### A. Senneville Case, 2020 QCCQ 1204
Dissenting Reasons: II. Background and Judicial History
[128] The respondent Senneville entered two guilty pleas: the first on a count of possession of child pornography ( s. 163.1(4) (a) Cr. C. ) and the second on a count of accessing child pornography ( s. 163.1(4.1) (a)). In both instances, the offence was prosecuted by indictment.
Dissenting Reasons: A. Senneville Case
129On the count of possession, the respondent Senneville admitted having possessed 475 files, including 317 images of children corresponding to the definition of "child pornography" in the Criminal Code ( s. 163.1(1) ). Of those 317 images, 90 percent were of young girls between 3 and 6 years of age having sexual relations with adults and minors. The sexual relations depicted involved penetration and sodomy. There were no videos. The respondent Senneville admitted that he had acquired the material in question on specialized sites by means of Internet searches. He also admitted that he had possessed that material for a period of 8 months.
130On the count of accessing, he admitted having accessed the above‑described child pornography material over a period of 13 months. He viewed the material primarily on his cell phone.
131The respondent Senneville is a former soldier. He served in the Canadian Armed Forces for 10 years before being expelled following his guilty pleas. He had no criminal record and was 28 years old at the time of sentencing. He had cooperated with the authorities and complied with strict release conditions. Having grown up in a family environment that was strict, conflictual and not very warm, he had narcissistic and obsessive‑compulsive traits. His risk of reoffending was categorized as low or even very low, with an absence of paraphilia. The respondent Senneville was trying to rebuild his life with the support of his spouse, his family and his friends. He had always been an asset to society and was taking steps to remain one. Further, he had asked for help and was open to the idea of receiving more. He said that he was more emotionally stable since having therapy sessions and that he had participated in an anger management clinic. The respondent Senneville was neither isolated nor lacking in social skills. He was sincerely remorseful and had realized the harm caused. He had no drinking or drug problem. The court proceedings had had a deterrent effect on him.
132At the sentencing stage, the respondent Senneville brought a motion before the judge seeking to have the minimum sentences for the offences of possession of child pornography ( s. 163.1(4) (a) Cr. C. ) and accessing child pornography ( s. 163.1(4.1) (a)), when prosecuted by indictment, declared to be of no force or effect against him. He argued both that the two minimum sentences infringed his rights and that they infringed the rights of an offender in a hypothetical scenario.
133The judge granted the motion. Finding that the two provisions infringed the respondent's s. 12 rights and that the infringements were not justified under s. 1 of the Charter , the judge declared the two provisions to be of no force or effect against the respondent Senneville.
134The judge reached that result by focusing exclusively on the circumstances of the offender before him. He held that the two minimum sentences infringed the rights of the respondent Senneville directly. The sentencing judge did not analyze the question of whether the minimum sentences infringed the rights of offenders in a hypothetical scenario.
[135] The judge therefore imposed sentences of imprisonment without regard for the minimum sentences declared to be of no force or effect against the respondent Senneville. On the count of possession of child pornography, the judge imposed a 90‑day term of imprisonment to be served intermittently and 2 years' probation. On the count of accessing child pornography, the judge imposed another 90‑day term of imprisonment to be served intermittently and 2 years' probation, to be served concurrently with the sentence for the possession count. ### B. Naud Case, 2020 QCCQ 1202
Dissenting Reasons: B. Naud Case
136The respondent Naud entered two guilty pleas: the first on a count of possession of child pornography ( s. 163.1(4) (a) Cr. C. ) and the second on a count of distribution of child pornography (s. 163.1(3)).
137On the count of possession, the respondent Naud admitted having possessed 531 image files and 274 videos of child pornography. Most of the material depicted children from 5 to 10 years of age being subjected to sexual abuse, such as fellatio and vaginal and anal penetration, by adults. He had used specialized software to access that material, make it available and wipe out any traces of it. He had shared his material nearly every day for a period of 8 months.
138On the count of distribution, the respondent Naud admitted to having made the above‑described child pornography material available online through sharing software nearly every day for a period of 8 months. He had used specialized software to make files available and wipe out all traces of his activities.
139The respondent Naud was a man in his thirties with no criminal record. He had low self‑esteem and a difficult family history. The respondent Naud had no diploma or degree and no occupational qualifications. He had held several small, unstable jobs. He had difficulties managing his emotions, little meaningful social contact and spent most of his time alone at home. His life revolved around his computer. He consumed cannabis, hashish and alcohol. He had been depressed for a long time and experienced suicidal ideation. He was very ashamed. He had embarked on two types of group therapy. At the time of the offence, he was in his thirties.
140At the sentencing stage, the respondent Naud brought a motion before the judge seeking to have the minimum sentence for the offence of possession of child pornography, when prosecuted by indictment, declared to be of no force or effect against him. He argued both that the minimum sentence infringed his rights and that it infringed the rights of an offender in a hypothetical scenario.
141The judge granted the motion. Finding that the provision infringed the respondent's s. 12 rights and that the infringement was not justified under s. 1 , the judge declared the provision to be of no force or effect against the respondent Naud.
142The judge reached that result by focusing exclusively on the circumstances of the offender before him. The judge held that the minimum sentence infringed the rights of the respondent Naud. The sentencing judge did not analyze the question of whether the minimum sentence infringed the rights of offenders in a hypothetical scenario.
143On the count of possession of child pornography, leaving aside the minimum sentence declared to be of no force or effect against the respondent Naud, the judge imposed a nine‑month term of imprisonment and 24 months' probation, with supervision and conditions.
144On the count of distribution of child pornography, because he was bound by the minimum sentence provided for in s. 163.1(3) Cr. C. , the judge imposed an 11‑month term of imprisonment. That minimum sentence was not challenged. The judge ordered the sentences for the two counts to be served concurrently.
[145] Finally, the judge also ordered 24 months' probation, with supervision and conditions, and made a 4‑year prohibition order under s. 161(1) (a) and (d) Cr. C. ### C. Quebec Court of Appeal, 2023 QCCA 731
Dissenting Reasons: C. Quebec Court of Appeal
146The Attorney General of Quebec and the Crown appealed the decisions rendered in the cases of the respondents Senneville and Naud.
147In the respondent Senneville's case, the appellants challenged the declarations that s. 163.1(4) (a) and s. 163.1(4.1) (a) Cr. C. were of no force or effect against the respondent. The appellants also challenged the sentences imposed on the respondent Senneville.
148In the respondent Naud's case, the appellants challenged the declaration that s. 163.1(4) (a) Cr. C. was of no force or effect against the respondent. They also challenged the sentence imposed on the respondent Naud.
149A majority of the Quebec Court of Appeal held that the minimum sentences in s. 163.1(4) (a) and (4.1) (a) are inconsistent with s. 12 of the Charter and are not saved by s. 1 because they infringe the constitutional rights of offenders in a number of reasonable hypothetical scenarios described in the majority's reasons. The majority therefore declared the minimum sentences in those provisions to be of no force or effect against all persons under s. 52(1) of the Constitution Act, 1982 .
150In the respondent Senneville's case, a majority of the Quebec Court of Appeal set aside the imposed sentences of 90 days' imprisonment to be served intermittently, finding them to be demonstrably unfit. The majority substituted sentences of one year's imprisonment on each count, to be served concurrently. In the respondent Naud's case, a majority of the Quebec Court of Appeal dismissed the sentence appeal.
[151] In summary, the Quebec Court of Appeal's judgment concluded as follows: the minimum sentences in s. 163.1(4) (a) and (4.1) (a) Cr. C. are of no force or effect against all persons; the terms of 90 days' imprisonment to be served intermittently that had been imposed on the respondent Senneville are replaced by sentences of one year's imprisonment; and the sentence imposed on the respondent Naud is maintained. ## III. Issues
Dissenting Reasons: III. Issues
152The appellants state in their appeal factum that the appeal is not about whether the impugned provisions infringe the s. 12 rights of the respondents Senneville and Naud. They add that they accept that "the appropriate sentences for the respondents were lower than the impugned minimum sentences".
153The appellants are challenging the conclusion of a majority of the Quebec Court of Appeal to the effect that s. 163.1(4) (a) and s. 163.1(4.1) (a) Cr. C. are of no force or effect against all persons, and the use of certain hypothetical scenarios for the purposes of that conclusion. In other words, the issue is whether those minimum sentences are of no force or effect against all persons under s. 52(1) of the Constitution Act, 1982 .
154These reasons are divided into two parts: (A) we look at how the criminalization of child pornography in Canada has evolved; and (B) we consider the constitutionality of the minimum sentences at issue in this appeal.
[155] In our view, the respondents' constitutional challenge cannot succeed. The appeal record contains no hypothetical scenario that can be considered to determine the constitutionality of the impugned provisions. ## IV. Analysis ### A. Criminalization of Child Pornography in Canada
Dissenting Reasons: IV. Analysis
[156] Before we move on to the sentencing stage, it is important to clearly understand the basis for the suppression of child pornography. To this end, we will present (1) the legislative history of the child pornography provisions of the Criminal Code and (2) the scope of the child pornography offences. #### (1) Legislative History of the Child Pornography Provisions
Dissenting Reasons: A. Criminalization of Child Pornography in Canada
157The legislative evolution of the Criminal Code 's child pornography provisions can be divided into four main phases: (a) the phase preceding the enactment of s. 163.1 , when there were no provisions dealing specifically with child pornography; (b) the enactment of s. 163.1 in 1993; (c) the creation of the offence of accessing child pornography in 2002; and (d) the amendments to s. 163.1 made between 2005 and 2015. ##### (a) Period Preceding the Coming Into Force of Section 163.1 Cr. C.
158Canadian society has long been aware of the harm that child pornography causes to children and the community.
159Even before there were specific provisions dealing with it in the Criminal Code , the conduct now prohibited by s. 163.1 fell within the scope of other offences, like the offences of possession and distribution of "obscene" materials, which were prohibited by s. 163 Cr. C.
160In the mid‑1980s, two reports recommended that Parliament reform the Criminal Code and increase protection for children by enacting specific "child pornography" provisions. The first report was published in 1984 by the Committee on Sexual Offences Against Children and Youths. The second was published in 1985 by the Special Committee on Pornography and Prostitution.
161In addition to those concerns within the country, Canada in 1991 ratified the United Nations Convention on the Rights of the Child , Can. T.S. 1992 No. 3. That document reflected the consensus of the international community that children deserve special and effective protection from all forms of sexual exploitation and sexual abuse (Articles 19 and 34 ). ##### (b) Enactment of Section 163.1 Cr. C. in 1993
162In the wake of those developments, Parliament added s. 163.1 to the Criminal Code in 1993. At the time, this provision prohibited the making, publication, importing, distribution, sale and simple possession of child pornography ( Act to amend the Criminal Code and the Customs Tariff (child pornography and corrupting morals) , S.C. 1993, c. 46, s. 2). The 1993 Act did not provide for any mandatory minimum sentences. ##### (c) Enactment of the Offence of Accessing Child Pornography in 2002
163In the 1990s and early 2000s, the increase in the availability and use of computers and the Internet exacerbated the scourge of child pornography and jeopardized the dignity and safety of children even further.
164Those technological advances created new ways of consuming child pornography without necessarily "possessing" it within the meaning of s. 163.1 . A person could intentionally view child pornography online without having to download it and thus without having to "possess" it.
165In 2002, Parliament filled this gap by creating the offence of accessing child pornography ( Criminal Law Amendment Act, 2001 , S.C. 2002, c. 13, s. 5). When prosecuted by indictment, the offence of accessing did not initially carry a mandatory minimum sentence. ##### (d) Legislative Amendments to Section 163.1 Cr. C. Between 2005 and 2015
166Parliament amended s. 163.1 three times between 2005 and 2015. Through those amendments, Parliament provided for more severe sentences to address the continuing increase in the number of child pornography offences and the serious harm caused by those offences.
167First of all, on July 20, 2005, Parliament passed the Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act , S.C. 2005, c. 32. For the offences of possession and accessing when prosecuted by indictment, Parliament introduced a mandatory minimum sentence of 45 days' imprisonment and increased the maximum sentences.
168Next, on March 13, 2012, Parliament passed the Safe Streets and Communities Act , S.C. 2012, c. 1. For the offences of possession and accessing when prosecuted by indictment, the minimum sentence was increased from 45 days to 90 days, and the maximum sentence was increased to 5 years. For the offence of possession when prosecuted on summary conviction, the minimum sentence was set at 14 days' imprisonment.
169Lastly, on June 18, 2015, Parliament enacted the Tougher Penalties for Child Predators Act . For the offences of possession and accessing when prosecuted by indictment, the minimum sentence was increased to one year. For the offence of possession when prosecuted on summary conviction, the minimum sentence was increased to 90 days, and for the offence of accessing when prosecuted on summary conviction, a minimum sentence of 90 days was introduced. More recently, in 2024, Parliament enacted the Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material) , S.C. 2024, c. 23, which received Royal Assent in 2024 and which came into force on October 10, 2025.
170In parallel with those legislative amendments, Parliament also passed the Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service , S.C. 2011, c. 4. Under this Act, Internet service providers are required to report child pornography to a designated organization when they are advised of it or become aware of it. ##### (e) Conclusion
171The last three decades have been marked by significant efforts made by Parliament to give the criminal justice systems the necessary tools to fight more effectively against the growing scourge of child pornography and to better protect children from that scourge. Parliament's repeated and ongoing legislative interventions express a clear intention: the fight against child pornography is of the utmost importance, and the sentences imposed for child pornography offences must reflect this. The courts must give effect to this legislative intention. #### (2) The Various Child Pornography Offences
172We will now look at the four distinct offences provided for in s. 163.1 Cr. C. : making, distributing, possessing and accessing child pornography.
173The expression "child pornography" found in s. 163.1(2) to (4.1) Cr. C. was defined in s. 163.1(1) ( Sharpe , at paras. 35‑59 and 72‑75 , per McLachlin C.J., and paras. 135 and 217‑21, per L'Heureux‑Dubé, Gonthier and Bastarache JJ.). The definition encompasses four categories of material.
174A number of defences, both judge‑made and statutory, are available to those charged with a child pornography offence (s. 163.1(5) and (6) Cr. C. ; R. v. Katigbak , 2011 SCC 48 , [2011] 3 S.C.R. 326, at para. 43 ; R. v. Barabash , 2015 SCC 29 , [2015] 2 S.C.R. 522; Sharpe ).
175Although they have a common purpose, the four offences in s. 163.1 Cr. C. are distinct. They have neither the same constituent elements nor the same objective gravity. Indeed, the offence of making child pornography is more serious than the offence of merely possessing it. This means that the range of conduct varies from one offence to another, which must inevitably affect the sentencing analysis.
176This constitutional challenge concerns these offences when prosecuted by indictment ( s. 163.1(4) (a) and (4.1) (a) Cr. C. ). We note from the outset that possession and accessing are "separate and distinct offences" ( R. v. Daudelin , 2021 QCCA 784 , at para. 21 ) with different elements and different objective gravity, a point we will return to. ##### (a) The Offence of Possession of Child Pornography (Section 163.1(4) Cr. C.)
177Section 4(3) Cr. C. defines the term "possession", and s. 163.1(4) described the hybrid offence of possession of child pornography: [2] 4 . . . Possession (3) For the purposes of this Act, (a) a person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. 163.1 . . . Possession of child pornography (4) Every person who possesses any child pornography is guilty of (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
178To be found guilty of the offence of possession, one must "knowingly acquire the underlying data files [for the images that constitute 'child pornography'] and store them in a place under one's control" ( R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253, at para. 2 ).
179A certain degree of control over the child pornography material is necessary for a finding of "possession" within the meaning of ss. 4(3) and 163.1(4) Cr. C. This Court has established that a momentary and unwitting receipt of child pornography does not constitute "possession" ( Morelli , at para. 16 ; R. v. Barabash , 2015 SCC 29 , [2015] 2 S.C.R. 522, at para. 63 ).
180Section 4(3) Cr. C. identifies two forms of culpable possession for the purposes of the prohibition against possessing child pornography: personal possession ( Morelli , at paras. 15‑16 ; R. v. K.R.J. , 2016 SCC 31 , [2016] 1 S.C.R. 906, at paras. 30‑31 ) and constructive possession ( Morelli , at paras. 17‑18 ; K.R.J. , at para. 30 ). ##### (b) The Offence of Accessing Child Pornography (Section 163.1(4.1) Cr. C.)
181The hybrid offence of accessing child pornography was set out in s. 163.1(4.1) and (4.2) Cr. C. in the following terms: [3] Accessing child pornography (4.1) Every person who accesses any child pornography is guilty of (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. Interpretation (4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
[182] The offence of accessing prohibits any person from intentionally viewing child pornography (e.g., looking at images on the Internet: Morelli , at paras. 14 and 25‑26 ; Joyal et al., at pp. 13‑15). Section 163.1(4.2) Cr. C. therefore establishes that a person who knowingly accesses child pornography (i.e., who causes it to be viewed by or transmitted to himself or herself) is guilty of the offence. ### B. The Protection Against Cruel and Unusual Punishment Guaranteed by Section 12 of the Charter
Dissenting Reasons: B. The Protection Against Cruel and Unusual Punishment Guaranteed by Section 12 of the Charter
183Parliament's objective of protecting children from the abuse and exploitation associated with child pornography also informs constitutional scrutiny of the impugned minimum sentences under s. 12 of the Charter .
184Section 12 grants the right not to be subjected to any cruel and unusual treatment or punishment by the state ( R. v. Bissonnette , 2022 SCC 23 , [2022] 1 S.C.R. 597, at para. 56 ; R. v. Hills , 2023 SCC 2 , at para. 30 ). This provision has two prongs. The first prong is concerned with the severity of the punishment. The second prong is concerned instead with the method of punishment ( Bissonnette , at para. 56 ). The first prong of s. 12 is normally used to analyze the constitutionality of a minimum sentence.
185Our jurisprudence recognizes two ways to challenge the constitutionality of a minimum sentence. First, the challenge may be based on the circumstances of the offender before the court ( Hills , at para. 38 ; R. v. Nur , 2015 SCC 15 , [2015] 1 S.C.R. 773, at para. 46 ). Second, the challenge may be based on the circumstances of an offender in a reasonable hypothetical scenario ( Hills , at para. 38 ; Nur , at para. 46 ). A constitutional challenge may also combine the two approaches ( Nur , at para. 46 ). However, for the reasons that follow, in the circumstances of these cases, the constitutional challenge cannot succeed.
186The court will conduct a three‑stage inquiry where, as here, the constitutional challenge is based on the circumstances of a representative offender in a hypothetical scenario. First, the court will select a reasonable hypothetical scenario as the basis for its analysis. Second, the court will consider what a fit and proportionate sentence would be for the representative offender in the reasonable hypothetical scenario selected, having regard to the objectives and principles of sentencing established by the Criminal Code ( ss. 718 et seq.). Third, the court will consider whether the impugned minimum sentence requires the imposition of a sentence that is grossly disproportionate to the fit and proportionate sentence. #### (1) First Stage: Selecting a Reasonable Hypothetical Scenario
187The first stage involves selecting a reasonable hypothetical scenario (see Hills , at paras. 76 et seq.). In keeping with the adversarial process, it is up to the claimant to satisfy the court that the proposed hypothetical scenario is reasonable ( R. v. Goltz , [1991] 3 S.C.R. 485, at p. 520; R. v. Plange , 2019 ONCA 646 , 440 C.R.R. (2d) 86, at paras. 31‑33 ; Hills , at para. 93 ).
188It is worth noting that, up to now, each time this Court has declared a minimum sentence unconstitutional, it has done so on the basis of a hypothetical scenario and not on the basis of the actual case before it. For that reason, we believe it is important to revisit the parameters of the reasonable hypothetical scenario.
189The first time a hypothetical scenario was used was in R. v. Smith , [1987] 1 S.C.R. 1045. That case concerned the seven‑year minimum sentence for importing drugs. Lamer J. constructed a hypothetical scenario of a person who imports a "joint" for personal use. The "joint" hypothetical in Smith is considered to be an example of a reasonable hypothetical scenario.
190Nevertheless, the use of hypothetical scenarios was seriously called into question during the decades that followed, and the Court did not declare any minimum sentence unconstitutional on the basis of a hypothetical scenario for approximately 25 years after Smith . The Court was clearly wary of the "potential for abuse" ( R. v. Goltz , [1991] 3 S.C.R. 485, at p. 516) of the use of hypothetical scenarios to invalidate legislation, and it developed limits around the ability to use them.
191More than 25 years after Smith , the validity of the use of hypothetical scenarios was re‑examined in Nur . Despite much criticism of them, the Court reaffirmed the use of hypothetical scenarios in the context of s. 12 challenges (paras. 48‑64). Nevertheless, the Court in Nur also acknowledged the potential for abuse that such use can create.
192More recently, this Court also declared mandatory minimum sentences unconstitutional on the basis of reasonably foreseeable scenarios in Hills (reckless discharge of firearms) and Bertrand Marchand (child luring). The fundamental limits on the use of hypothetical scenarios for constitutional purposes — including the rule that they must be "reasonable" — have never been called into question. ##### (a) "Reasonable" Nature of a Hypothetical Scenario
193A court must exercise caution when assessing the reasonableness of a proposed hypothetical scenario. The " reasonable hypothetical scenario" is a judicial construct that this Court has made use of since Smith to determine the constitutionality of minimum sentences. It must be used with care so as not to undermine public confidence in the administration of justice.
194These limits are fundamental. They help to maintain the integrity of the justice system and public confidence in the administration of justice. Without the respect and support of the community, courts will find it difficult to administer justice. Caution is therefore required.
195This Court has recognized that a reasonable hypothetical scenario is "an accepted and appropriate tool" ( Hills , at para. 67 ; see also paras. 68‑75). This "tool" helps to advance the Charter 's purpose, which is to ensure that everyone in Canada is governed by the rule of law and has the benefit of the protection of the Charter .
196However, our jurisprudence is cautious in delineating what is meant by a " reasonable hypothetical scenario". Since Goltz , this Court has carefully set boundaries around any claimant's ability to propose a hypothetical scenario to support a constitutional challenge to a minimum sentence. A reasonable hypothetical scenario is one that, taking into account the limits set out in our jurisprudence, is reasonable.
197Our colleague stresses the importance of the rule of law and access to justice in the application of the s. 12 test. While it is true that the rule of law is relevant to the analysis, any departure from the fundamental limits on hypothetical scenarios — limits that are important in their own right — comes at a cost for the integrity of the justice system and public confidence in the administration of justice.
198In Lloyd , McLachlin C.J. wrote that "no one [may] be sentenced under an invalid statute" (para. 16; see Hills , at para. 73 ). However, this principle is not the only one that must be considered. In our view, the principle of constitutional certainty — that is, the principle that the constitutionality of legislation must be certain and stable — must also be taken into account. It is important that the constitutionality of a statute not be dependent on any scenario that comes to mind.
199The limits on the " reasonable hypothetical scenario" are many. The question is often formulated in the negative: it is generally asked what a "reasonable hypothetical scenario" is not . Briefly, a reasonable hypothetical scenario is not one that is far‑fetched, fanciful, unrealistic, outlandish, based on mere speculation or extreme, nor is it a remote scenario.
200The last of these limits is at the heart of this appeal. It was the subject of disagreement between the majority and the dissent in the Quebec Court of Appeal's decision (C.A. reasons, at paras. 193‑232 and 59‑100). ##### (b) Continued Development and Clarification of Legal Principles
201This Court began making significant efforts to clarify the legal principles in Hills (para. 1 ). Without effecting any major methodological shift, the Court did provide greater clarity and more guidance on how to deal better with cases in which a party challenges the constitutionality of a minimum sentence provision under s. 12 (para. 49). For this purpose, the Court developed a framework and provided further guidance, direction and explanations (para. 3). Contrary to what our colleague maintains, we are not departing from the Court's precedents. Rather, these reasons continue the efforts at clarification and guidance that began in Hills .
202For the purposes of these cases, we will look more specifically at the rule against "remote" hypothetical scenarios and extreme examples. The limit on scenarios that are "remote" (" n'ayant qu'un faible rapport avec l'espèce ") ( Goltz , at p. 515) has been referred to extensively in the jurisprudence ( Morrisey , at para. 30 ; Wiles , at para. 5 ; Nur , at paras. 62, 68 and 76 ), including in the recent decision in Hills (paras. 78 and 91 ). However, this Court has not yet had an opportunity to clearly define its content or scope on appeal. ##### (c) Scenario That Is "Remote" ("n'ayant qu'un faible rapport avec l'espèce")
203A hypothetical scenario that is "remote" (" n'ayant qu'un faible rapport avec l'espèce ") is a scenario that cannot be considered to determine the constitutionality of a legislative provision. It is in this sense that we interpret and apply the expression " n'ayant qu'un faible rapport avec l'espèce " in these reasons.
204This limit originated in Gonthier J.'s majority reasons in Goltz . Gonthier J. recognized that a court can consider hypothetical scenarios that differ in some respects from the case of the offender before the court. However, he also recognized that there are limits to such a possibility. In particular, he stated the following: A reasonable hypothetical example is one which is not far-fetched or only marginally imaginable as a live possibility. While the Court is unavoidably required to consider factual patterns other than that presented by the particular case before it, this is not a licence to invalidate statutes on the basis of remote or extreme examples . . . . Remote examples may include situations where someone is caught with a weapon in a technically illegal manner. [Emphasis added; pp. 515‑16.]
205In our view, there is only one meaning to be given to the French expression " n'ayant qu'un faible rapport avec l'espèce ". It is the meaning that respects and gives full effect to Gonthier J.'s majority reasons in Goltz as a whole: a remote scenario is a scenario that has only a remote connection with the case before the court. The connection between the case before it, on the one hand, and the hypothetical scenario proposed by one of the parties, on the other, must be sufficient. ###### (i) Comparative Analysis of the Scenario and the Case in Question
206The rule against hypothetical scenarios that are "remote" (" n'ayant qu'un faible rapport avec l'espèce ") requires a comparative analysis of the case before the court and the proposed hypothetical scenario. The court must look at the connection between these two, from both a factual and a legal standpoint.
207A number of Quebec Court of Appeal decisions clearly illustrate the nature of the comparative analysis the court must undertake. For example, in Ayotte v. R. , 2019 QCCA 1241 , 56 C.R. (7th) 318, the Quebec Court of Appeal noted the importance of ensuring that the hypothetical scenarios "emanat[e] from the reality of the crime charged" (para. 57). In Procureur général du Québec v. C.M. , 2021 QCCA 543 , the court stated that the hypothetical scenarios must be "consistent with the actual facts of the case" (para. 70). In Joly v. R. , 2024 QCCA 1151 , the court emphasized that the scenarios proposed by the parties had to be "consistent with" the cases before it (para. 89).
208The provincial courts are also weighing in on the matter in their jurisprudence (see, e.g., R. v. Moquin , 2015 QCCQ 2705 , 338 C.R.R. (2d) 53, at paras. 45‑50 ; Directeur des poursuites criminelles et pénales v. Perron , 2018 QCCQ 7557 , at paras. 32‑49 ; R. v. Gagnon , 2018 QCCQ 9569 , at para. 46 ; R. v. Dawson , 2022 ONCJ 540 , at paras. 16‑24 ; R. v. Potvin-Morin , 2024 QCCQ 6439 , at paras. 52‑55 ). ###### (ii) Sufficient Factual and Legal Connection With the Case
209The connection between the proposed hypothetical scenario and the particular case in question must be sufficient from both a factual and a legal standpoint. The claimant must show a "sufficient factual connection" ( R. v. E.J.B. , 2018 ABCA 239 , 72 Alta. L.R. (6th) 29, at para. 46 ) and a "sufficient legal connection" between the case before the court and the hypothetical scenario ( Hills , at para. 82 ).
210As we said, the proposed hypothetical scenario must have a sufficient factual connection with the case. The burden of proof rests on the claimant. To discharge this burden, the claimant "should either take the case as its starting point, and change some characteristics of it, or take an actual reported case as its starting point and adapt from there" ( Hills , at para. 93 ). One must not postulate and imagine a hypothetical situation that is too far from the actual facts of the case at hand. It is possible to change the personal characteristics of the offender in the proposed hypothetical scenario, including Indigeneity, provided that the scenario still has more than a remote connection with the case (see Hills , at paras. 84‑87 ).
211Next, the proposed hypothetical scenario must have a sufficient legal connection with the case. The burden of proof rests on the claimant. To discharge this burden, the claimant must "marshal the specific sentencing considerations that are relevant to the hypothetical" ( Hills , at para. 93 ). The claimant must propose a hypothetical scenario based on the same offence as the one of which the offender before the court has been found guilty ( R. v. A. (S.) , 2014 ABCA 191 , 312 C.C.C. (3d) 383, at para. 40 ; R. v. L. (M.) , 2016 ONSC 7082 , 367 C.R.R. (2d) 268, at paras. 43‑52 ). This requirement is a necessary one — it ensures that the court's analysis is meaningful. ###### (iii) Suggested Approach
212A hypothetical scenario is to be "constructed with care" in a manner consistent with the adversarial process ( Hills , at paras. 76 and 93 ). We suggest either one of the following options for constructing a reasonable hypothetical scenario. The claimant may take the case before the court as its starting point and change some of the characteristics of the offender in the case. Alternatively, the claimant may take an actual reported case as a starting point and adapt from there, but must ensure that the new scenario bears more than a remote connection with the case before the court. ##### (d) Need for a Carefully Prepared and Complete Record
213As a general rule, this Court can consider a constitutional question from the standpoint of hypothetical scenarios in appropriate circumstances. To this end, the appeal record filed must be complete and contain thorough submissions addressing all of the stages of the s. 12 test (see Goltz , at pp. 520‑21; R. v. Villaroman , 2016 SCC 33 , [2016] 1 S.C.R. 1000, at para. 47 ). The failure to provide submissions on a particular stage of the s. 12 test may prevent this Court from conducting the constitutional analysis at that stage.
214Responsibility for proposing hypothetical scenarios lies with the claimant ( Goltz , at p. 520; Plange , at paras. 31‑33 ). Indeed, it was noted in Hills that "[i]t is up to the offender/claimant to propose a specific hypothetical scenario, argue it is reasonable, and make submissions on what a fit sentence would be for that representative offender" (para. 93). In these cases, the claimant must therefore propose a scenario that is a reasonable hypothetical scenario, argue that it is reasonable, and provide complete submissions on each stage of the s. 12 test.
215This Court may refuse to consider other hypothetical scenarios in the absence of sufficiently thorough submissions on those other scenarios. This is justified both for reasons of principle and for institutional reasons. From a principled standpoint, the court must ensure that its decision is made on the basis of a carefully prepared and complete record, particularly where the court's declaration could have the effect of striking down legislation. From an institutional standpoint, the adversarial process requires complete submissions from all the parties. ##### (e) Application to the Instant Cases
216We note, as a preliminary remark, that the first four hypothetical scenarios considered by the dissenting judge of the Court of Appeal were not treated as hypothetical scenarios by the trial judges in the cases of the respondents Senneville and Naud. Rather, they were the subjects of the lower courts' constitutional analyses based on the circumstances of the offenders before them.
217Nevertheless, this did not prevent the judges of the Court of Appeal from considering the constitutionality of the impugned provisions on the basis of five hypothetical scenarios and requesting additional submissions to examine a sixth hypothetical scenario. Following the Court of Appeal's decision, the respondents proposed this sixth scenario to this Court.
218A sixth hypothetical scenario was mentioned by the Court of Appeal without being examined at length. It is nonetheless possible for us to address it even without the benefit of analysis from below, given the additional submissions filed by the parties.
219The analysis that follows confirms that the constitutional challenge must fail. The five hypothetical scenarios considered by the Court of Appeal have only a remote connection with the cases before us. Some are also too extreme. The same is true of the sixth scenario, which has only a remote connection with the cases before us. ###### (i) First Hypothetical Scenario
220First, the dissenting judge considered the hypothetical scenario drawn from R. v. Gangoo‑Bassant , 2017 QCCQ 20157 , and 2018 QCCQ 11080 . The offender was a 34‑year‑old father with a stable job and no criminal record who, on a single occasion, forwarded one image of child pornography to one contact. He had possessed the image for some time before forwarding it.
221This hypothetical scenario has only a remote connection with the cases before us. The dissenting judge was correct to find that [ translation ] "[t]hat is a situation miles away from the facts of the present cases" (C.A. reasons, at para. 217). The connection between this hypothetical scenario and the two cases before us is insufficient. Senneville is a 28‑year‑old former soldier who admitted to having possessed 475 files, including 317 images constituting child pornography, for 8 months, and having accessed child pornography for 13 months. Naud is a man in his thirties who admitted to having possessed 531 image files and 274 videos of child pornography and having distributed them nearly daily for 8 months. The scenario drawn from Gangoo‑Bassant is different from the cases before us from both a factual and a legal standpoint. ###### (ii) Second Hypothetical Scenario
222Second, the dissenting judge considered the hypothetical scenario drawn from R. v. Delage , 2019 QCCQ 1125 . The offender was a 27‑year‑old man with relational and emotional deficits and a mild intellectual disability who had possessed a large quantity of child pornography.
223This hypothetical scenario, in addition to being extreme, has only a remote connection with the cases before us. The dissenting judge was correct in finding that [ translation ] "[t]hose facts are just as remote from the ones in the cases at issue" (C.A. reasons, at para. 218). Even if the connection between this hypothetical scenario and the cases before us is compared from a factual standpoint — both involve the possession of a large quantity of child pornography — the scenario is also extreme because of the offender's severe intellectual disability. ###### (iii) Third Hypothetical Scenario
224Third, the dissenting judge considered the hypothetical scenario drawn from R. v. Lavigne‑Thibodeau , 2019 QCCQ 3824 . The offender was a 21‑year‑old man with no criminal record who had low self‑esteem and was struggling with several issues. He had possessed 14 images of child pornography for a short period of time.
225This hypothetical scenario has only a remote connection with the cases before us. The dissenting judge was correct in noting that [ translation ] "the facts of th[at] cas[e] are also far removed from the cases at issue" (C.A. reasons, at para. 218). This scenario differs from the two cases before us in several respects. Neither Senneville nor Naud possessed only 14 images for a brief period. The scenario drawn from Lavigne‑Thibodeau thus has only a remote connection with the cases before us. ###### (iv) Fourth Hypothetical Scenario
226Fourth, the dissenting judge considered the hypothetical scenario drawn from R. v. Duclos , 2019 QCCQ 5680 . The offender was a single, childless 30‑year‑old man with no criminal record who suffered from Asperger syndrome, generalized anxiety disorders, Tourette syndrome and a mild intellectual disability. He had possessed 103 photographs of child pornography.
227This hypothetical scenario has only a remote connection with the cases before us, notably because of the offender's significant developmental delays. The dissenting judge was correct to find that [ translation ] "the facts of th[at] cas[e] are also far removed from the cases at issue" (C.A. reasons, at para. 218). In our view, this scenario is also too extreme because of the offender's developmental disabilities, which would potentially lead a court to conclude that it is not possible to properly denunciate the actions of such an offender. ###### (v) Fifth Hypothetical Scenario
228Fifth, the dissenting judge considered the hypothetical scenario on which the Ontario Court of Appeal had relied in R. v. John , 2018 ONCA 702 , 142 O.R. (3d) 670, to declare the former s. 163.1(4)(a) Cr. C. unconstitutional. That hypothetical scenario involves "a young man 18 years of age who receives a sext from a friend showing a nude 17‑year‑old young woman and who keeps the photo on his phone instead of deleting it" (para. 29 of John ).
229The connection between this hypothetical scenario and the two cases before us is at the heart of this appeal. However, the same was not true in Bertrand Marchand . In that decision concerning the offence of child luring, this Court used a hypothetical scenario based on an 18‑year‑old and a 17‑year‑old in a romantic and sexual relationship without there being any direct connection between that scenario and the specific facts of Mr. Bertrand Marchand's case.
230The hypothetical scenario considered by the Ontario Court of Appeal in John has only a remote connection with the cases before us. The dissenting judge was correct: [ translation ] "This possibility seems to us to be extremely remote from the facts in the Senneville and Naud cases, unrealistic and unlikely to occur" (C.A. reasons, at para. 220). In our view, the factual connection with the cases before us is insufficient. There are major differences between the situation described in the hypothetical scenario and the situations of Senneville and Naud: the number of images (one versus hundreds), the nature of the images (a nude photo of a 17‑year‑old that constitutes "child pornography" versus extremely graphic images and videos of abuse of prepubescent children), the period during which the material was possessed or accessed (briefly versus months or years), the method of acquisition (receiving the image unsolicited via a friend versus actively seeking out material on specialized sites), the motivation for accessing the material (passive reception versus active seeking), the ages of those depicted (a 17‑year‑old versus young children who are mostly between the ages of 3 and 10), and the age of the offender (18 versus 28 and a man in his thirties).
231At the hearing, counsel for the Attorney General of Quebec argued that the hypothetical scenario identified in John could be considered a reasonable hypothetical scenario in the present cases. For the reasons stated above, we disagree. For its part, the Crown maintained its position before this Court that the John scenario has only a remote connection with the cases before us. ###### (vi) Sixth Hypothetical Scenario
232In their additional submissions to the Quebec Court of Appeal, the respondents proposed the following hypothetical scenario, which, in practical terms, is a variation on Caron Barrette v. R. , 2018 QCCA 516 : [ translation ] The first scenario is inspired by Caron Barrette v. R. ( 2018 QCCA 516 ) and was formulated as follows: ". . . then in a romantic relationship that is prohibited, but known to and accepted by the parents, with a 14‑year‑old girl, is in possession of pornographic images of his partner, taken with her consent, and which their respective parents find when the relationship ends". We suggest that this scenario be combined with the situation of a 19‑year‑old young adult who has an intimate relationship with a 17‑year‑old teenager of which their parents are aware and who is in possession of intimate images taken by the teenager with her consent. The sexual nature of the images is also a consideration: in both cases, the definition of pornography would be met by images of partial nudity. (A.F., at para. 94; see also paras. 95‑96.)
233The judges of the Court of Appeal did not consider this scenario. The majority did not discuss it. As for the dissenting judge, he excluded Caron Barrette — as an actual reported case — without further examination.
234We would exclude the sixth proposed hypothetical scenario for two reasons. First, it would lead to an acquittal on the count of possession of child pornography. As mentioned, the majority reasons in Caron Barrette found that the offender's conduct had not been established beyond a reasonable doubt and accordingly set aside the guilty verdict. Second, regardless of the outcome in Caron Barrette , the sixth proposed hypothetical scenario has only a remote connection with the cases before us. The most important factual differences between the sixth proposed hypothetical scenario and the cases before us are the type and content of the images (intimate images of partial nudity of one's 17‑year‑old partner, taken with consent, versus photographs of children from 3 to 10 years of age being subjected to penetration and sodomy by adults), the offenders' ages and the circumstances of acquisition of the images (images of one's 17‑year‑old partner taken by the partner herself versus images sought out on specialized sites). ###### (vii) Conclusion
235In short, the five hypothetical scenarios considered by the Quebec Court of Appeal have only a remote connection with the cases before us, and the same is true of the sixth hypothetical scenario proposed by the respondents. The constitutional challenge must therefore fail. #### (2) Second Stage: Determining a Fit and Proportionate Sentence
236Because the appeal record does not allow us to proceed to the second stage of the s. 12 test, our reasons will be limited to the following two points: (a) the objectives of denunciation and deterrence must take priority; and (b) we invite provincial and territorial appellate courts to raise their guidelines for child pornography offences. ##### (a) Primacy of the Objectives of Denunciation and Deterrence (Section 718 Cr. C.)
237First, we reiterate "the primacy of denunciation and deterrence when sentencing offenders for sexual offences against children" ( Bertrand Marchand , at para. 167 ). In the case of crimes that involve the abuse of a person under 18 years of age, s. 718.01 Cr. C. requires that "primary consideration" be given to the objectives of denunciation and deterrence in the sentencing of those guilty of such crimes.
238Our colleague is correct in saying that proportionality must always be reflected in sentencing. Indeed, sentencing judges must not overemphasize denunciation and deterrence to the detriment of proportionality. At the same time, one also cannot ignore the changing mores of society, which necessarily influence the understanding of what is proportionate and, consequently, of the fit and appropriate sentence ( R. v. Parranto , 2021 SCC 46 , [2021] 3 S.C.R. 366, at paras. 36 and 52‑54 ). In this regard, the country's appellate courts are expected to set new directions in their respective jurisdictions to reflect changing societal and judicial knowledge and attitudes about such offences and those who commit them. ##### (b) Guidelines for Child Pornography Offences
239Second, we invite provincial and territorial appellate courts to raise their guidelines — sentencing ranges or starting points — for child pornography offences in keeping with the guidance from Friesen (see, e.g., R. v. Choudhury , 2021 ONCA 560 , at paras. 29‑33 ; R. v. Chalk , 2007 ONCA 815 , 88 O.R. (3d) 448, at paras. 17‑20 ; R. v. Midwinter , 2015 ONCA 150 , at para. 15 ).
240We note that certain appellate courts have revised their child pornography guidelines upwards. Our reasons will be confined to making observations; we take no position on the specific lengths of the guidelines or the appropriate content of the guidelines.
241In Quebec, Bouchard J.A. found in Régnier that the sentencing range set out in St‑Pierre v. R. , 2008 QCCA 894 , at para. 9 — which specified a range of six months to two years for possession — was no longer appropriate in light of the increase in the minimum sentences and the legislative changes since Friesen (para. 55 of Régnier ). As Bouchard J.A. noted in Régnier , the question of a new starting point was not before the court at that time (para. 56). The sentencing range for possession in Quebec therefore remains unclear.
242In a recent work, Professors H. Parent and J. Desrosiers have compiled sentencing ranges for possession (s. 163.1(4) Cr. C. ), making (s. 163.1(2)) and distribution (s. 163.1(3)) in the post- Friesen period (Traité de droit criminel , t. III, La peine , 4th ed., at pp. 720‑23 ).
243These authors identify a three‑part sentencing range for the offence of possession when prosecuted by indictment (s. 163.1(4)(a) Cr. C. ): sentences of a few months to 12 months at the lower end of the range, sentences of 12 months to 18 months in the middle of the range, and sentences of 18 months to 4 years at the upper end of the range. These ranges suggest starting points of 12 months for cases at the lower end of the range, 18 months for cases in the middle of the range, and 24 months for cases at the upper end of the range.
244In Ontario, the decisions in R. v. V. (M.) , 2023 ONCA 724 , 169 O.R. (3d) 321, and Pike indicate that the sentencing range from R. v. Kwok , at para. 5 — which specified a range of 90 days to 3 years of imprisonment for possession — is no longer the appropriate range in Ontario. In Pike , Tulloch C.J. found that "a minimum of [12 to 18 months] imprisonment is appropriate for offences falling at the lower end of the possession sentencing range" (para. 188). He also proposed a specific starting point of 18 months for possession offences.
245We acknowledge the efforts made by appellate courts that have updated their child pornography guidelines. Such an approach is consistent with the teachings of Friesen (paras. 108‑14 ). Sentencing ranges and starting points are not caps or mandatory minimums; rather, they are guidelines that help sentencing judges exercise their discretion consistently within a range of appropriate sentences in each province and territory (see R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089, at paras. 57‑63 ; R. v. M. (C.A.) , [1996] 1 S.C.R. 500, at para. 92 ). ##### (c) Conclusion
246The sentences imposed for child pornography must, first, reflect the primacy of the objectives of deterrence and denunciation and, second, convey the profound wrongfulness and harmfulness of sexual violence against children, as this Court stated in Friesen . Those requirements do not impose a specific starting point or sentencing range, but they do instruct courts to ensure that child pornography sentencing is consistent with the revised understanding of the harm caused by sexual offences against children (see Friesen , at paras. 107‑14 ).
247This means that the minimum sentences provided for in s. 163.1(4)(a) and (4.1)(a) Cr. C. are much more likely to withstand challenges under s. 12. First of all, at the sentencing stage, the courts will now be applying a more current and more accurate understanding of the harm caused by child pornography offences. Second, should a constitutional challenge be brought in the future, all proposed hypothetical scenarios will have to meet the requirements of the reasonable hypothetical scenario test before they can be used to challenge the constitutionality of these provisions. #### (3) Third Stage: Gross Disproportionality Between the Minimum Sentence and a Fit and Proportionate Sentence
248The appeal record does not allow us to proceed to this stage of the s. 12 test. However, we will make two comments. First, we will emphasize the fact that a penalty may be excessive, disproportionate and unfit without crossing the constitutional line. Second, we will explain that the constitutional line requires the exercise of normative judgment. ##### (a) The Constitutional Line Is a Stringent and Demanding Test
249The constitutional standard of a "grossly disproportionate" sentence is a demanding standard ( Hills , at para. 109 ). The bar is high and will be met only rarely ( Lloyd , at para. 24 ; Bissonnette , at para. 70 ; Hills , at para. 109 ).
250A sentence that is merely excessive does not cross the constitutional line ( Hills , at para. 47 ; R. v. Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96, at para. 14 ). More is needed. The sentence imposed must be "so excessive as to outrage standards of decency" ( Hills , at para. 47 , quoting Smith , at p. 1072). The sentence must be incompatible with human dignity.
251A sentence that is merely disproportionate also does not cross the constitutional line ( Hills , at para. 47 ). A higher threshold is necessary. The sentence imposed must be so grossly disproportionate that it would be abhorrent or intolerable to Canadians ( Hills , at para. 47 ; R. v. Brown , [1994] 3 S.C.R. 749, at para. 24 ).
252A sentence that is merely unfit does not cross the constitutional line either ( Hills , at para. 47 ). The bar is much higher. The severity of the sentence imposed must be such as to shock the conscience of Canadians in order to cross the constitutional line.
253Finally, the appellants argue that the s. 12 test — particularly at the stage that involves considering the impact of the sentence on the offender — should take into account [ translation ] "the potential of the offender to benefit from a reduced sentence in exchange for a guilty plea" (A.F., at para. 101). In other words, the appellants are asking this Court to consider the possibility of plea bargaining in the disproportionality analysis. The Court of Appeal rejected this argument (paras. 165‑71 ).
254We reject the appellants' argument. The comparative exercise between a minimum sentence and a fit and proportionate sentence should not take into account the possibility of the offender being granted a reduction in the sentence in exchange for a guilty plea. A minimum sentence is a legislative act of Parliament, and the constitutional analysis of its effects cannot depend on the discretion of the prosecution to offer a plea bargain. While a guilty plea may warrant a reduction in sentence in appropriate circumstances (see ss. 718.2(d) and 719(3) Cr. C. ), it is not a mitigating factor that should be factored into the s. 12 analysis. ##### (b) The Constitutional Line Requires the Exercise of Normative Judgment
255A court exercises normative judgment when it determines whether a sentence is "grossly disproportionate" ( Hills , at paras. 48 and 110 ). The court must weigh the views of Canadian society and the values and objectives that underlie our Charter and sentencing jurisprudence ( Hills , at para. 110 ).
256It is accepted that the broader the scope and reach of an offence, the more the minimum sentence for the offence is "potentially vulnerable to constitutional challenge" ( R. v. Morrison , 2019 SCC 15 , [2019] 2 S.C.R. 3, at para. 140 ; see also Hills , at para. 125 ; Nur , at para. 82 ).
257That being said, once the court has selected a reasonable hypothetical scenario, the scope and reach of the offence are of little relevance. The court must craft a fit and proportionate sentence for the representative offender in the hypothetical scenario ( Hills , at paras. 64‑65 ; R. v. Bertrand Marchand , 2023 SCC 26 , at paras. 103‑4 ), and it must do so with a specific focus on that representative offender's circumstances.
258First, the court must consider "the views of Canadian society" when it exercises its normative judgment ( Hills , at paras. 48 and 110 ). Society has a better understanding today of the wrongfulness and harmfulness of sexual violence against children. The harm of sexual offences against children was "consistently underestimated" in the past ( Friesen , at para. 5 ; see also para. 50 ). Canadian society today understands that sexual offences against children cause "profound harm" ( Friesen , at paras. 1 and 50 ). This understanding of societal views must be reflected when courts exercise normative judgment. Indeed, courts must have regard to "contemporary Canadian standards" when determining whether a sentence is grossly disproportionate, while also having regard to "fundamental values enshrined in the Charter " ( R. v. Smith , at p. 1072, citing R. v. Miller (1976), 70 Cr. App. R. 315 (CA), and R. v. Lyons , [1987] 2 S.C.R. 309, at pp. 369‑70 ).
259Second, the court must consider the values and objectives underlying our Charter and sentencing jurisprudence when it exercises its normative judgment ( Hills , at para. 110 ). With regard to child pornography offences, this means that the court must give effect to the message in Friesen and to the primacy of the penological objectives of denunciation and deterrence in s. 718.01 Cr. C. : courts must be guided by Friesen and s. 718.01 when they exercise their normative judgment ( Hills , at para. 138 ).
260Thus, when a court engages in normative reasoning to determine whether a sentence for child pornography is so long that it becomes grossly disproportionate ( Hills , at para. 48 ), the court must necessarily bear in mind the profound wrongfulness and harmfulness of these crimes. These heinous offences call for strong condemnation; the court owes greater deference to Parliament's decision to enact the mandatory minimum.
261This means, in practice, that it may be more difficult for a party to establish that the constitutional line ( grossly disproportionate) has been crossed when it comes to child pornography offences. In light of Friesen and s. 718.01, child pornography sentencing has evolved substantially. A sentence that was considered "grossly disproportionate" in the past may not meet that standard today, given the evolution of sentencing practices for child pornography offences since Friesen . The evolving nature of sentencing practices for child pornography offences is a factor that courts must take into account when they consider whether the minimum sentences for such offences are grossly disproportionate. #### (4) Conclusion
262The respondents have not shown that s. 12 is infringed by s. 163.1(4)(a) and (4.1)(a) Cr. C. The majority erred in declaring these provisions to be of no force or effect against all persons.
263The minimum sentences provided for in s. 163.1(4)(a) and (4.1)(a) Cr. C. are therefore constitutionally valid and operative, in keeping with the "presumption of constitutionality" ( R. v. Boulanger , 2022 SCC 2 , [2022] 1 S.C.R. 9, at para. 55 ; R. v. Sappier , 2006 SCC 54 , [2006] 2 S.C.R. 686, at para. 71 ; M. v. H. , [1999] 2 S.C.R. 3, at para. 79 ; Quebec (Attorney General) v. Lacombe , 2010 SCC 38 , [2010] 2 S.C.R. 453, at para. 72 ).
[264] We express no opinion on whether there are reviewable errors tainting the specific sentences imposed on the respondents Senneville and Naud. As mentioned, the appellants stated that they were not appealing those sentences. We also express no opinion on whether the minimum sentences at issue in this appeal infringe the s. 12 rights of the respondents Senneville and Naud directly. ## V. Disposition
Dissenting Reasons: V. Disposition
265The appeal should be allowed. The conclusion of the majority of the Quebec Court of Appeal declaring the minimum sentences in s. 163.1(4)(a) and (4.1)(a) Cr. C. to be of no force or effect against all persons should be set aside. The impugned minimum sentences are constitutionally valid and operative. --- Appeal dismissed, Wagner C.J. and Côté , Rowe and O'Bonsawin JJ. dissenting . Solicitor for the appellant the Attorney General of Quebec: Ministère de la Justice du Québec, Québec. Solicitor for the appellant His Majesty The King: Director of Criminal and Penal Prosecutions, Montréal. Solicitors for the respondents: Pelletier‑Quirion Avocats, Québec. Solicitor for the intervener the Raoul Wallenberg Centre for Human Rights: Raoul Wallenberg Centre for Human Rights, Montréal. Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Addario Law Group, Toronto; Bayne Sellar Ertel Macrae, Ottawa. Solicitors for the intervener the Canadian Civil Liberties Association: Stockwoods, Toronto. Solicitors for the intervener the Canadian Centre for Child Protection Inc.: Lenczner Slaght, Toronto. Solicitor for the intervener Association québécoise des avocats et avocates de la défense: Hugo Caissy, avocat, Rimouski. [1] We are aware that legislative amendments came into force on October 10, 2025, following the enactment of the Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material) , S.C. 2024, c. 23. However, since those amendments are not applicable in this appeal, we will not refer to them in these reasons, except where explicitly stated. [2] We are aware that legislative amendments came into force on October 10, 2025, following the enactment of the Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse and exploitation material) , S.C. 2024, c. 23. These amendments changed the title of the offence and the wording of s. 163.1(4)(a) and (b). However, since those amendments are not applicable in this appeal, we reproduce the former wording of s. 163.1(4) in these reasons. [3] See fn. 2.
