Canada’s judges have become “completely divorced from reality” in the reasoning they use to bat down mandatory minimum sentences for serious crimes, says Christine Van Geyn, interim executive director of the Canadian Constitution Foundation.
Tension around this issue reached a breaking point in October 2025 when the Supreme Court of Canada issued its ruling in the Senneville case. The court struck down the one-year mandatory minimum sentence that Parliament had passed for possession of child sexual abuse material. The judges’ reasoning was not that the men before the court didn’t deserve serious punishment, but that a hypothetical teenager sharing a sexting image might theoretically fall under the same provision. Public outrage followed.
But this pattern of the court using these imagined scenarios goes back decades. It’s the topic of a recent MLI commentary – “(Un)reasonable hypotheticals” – by Van Geyn and Lakehead University law professor Ryan Alford. To discuss these issues, they join Inside Policy Talks.
On the episode, they tell host Mark Mancini, a Thompson Rivers University law professor and MLI senior fellow, that a particularly outlandish “reasonable hypothetical” used by the Supreme Court in its 2015 Nur ruling served as an inflection point.
It moved Canada into the “world of speculation” when it comes to concocting these hypotheticals, says Van Geyn. The court imagined a situation where a responsible firearms owner who stores an unloaded gun and ammunition in close proximity could face the three-year mandatory minimum sentence for a serious firearms offence.
“The scenario they picked shows us exactly how unhinged from reality they became” she says.
Alford observed that the court’s trajectory on these rulings raises some bigger issues.
“They’re now saying, ‘Okay, well, let’s treat the accused as if they are essentially members of an equity-seeking group,’” says Alford. “The reasonable hypothetical offender is in this pool now of people who we’re supposed to think about and have sympathy for.”
“Even more problematically,” adds Alford, “it’s the notion that (the courts) now have this freewheeling basis to say the Constitution means whatever they say it means.”
