By Ryan Alford and Christine Van Geyn
April 14, 2026
Introduction
On October 31, 2025, the Supreme Court of Canada [“SCC”] released the decision in Quebec (Attorney General) v. Senneville (Quebec (Attorney General) v. Senneville, [2025] S.C.C. 33 (S.C.C.)). The court had concluded that a sentence of one year in prison for possession of child sexual abuse materials could constitute cruel and unusual punishment, in violation of section 12 of the Canadian Charter of Rights and Freedoms.
This conclusion was not reached on the basis of the facts in front of the court, which involved adult men in possession of hundreds of the worst imaginable types of images and videos of violent child sexual abuse. Instead, the mandatory minimums were struck down on the basis of what the court called a “reasonably foreseeable” scenario: teenagers sexting and then sharing the images with friends.
Public and political outrage was swift. The opposition called for the use of the notwithstanding clause, and some Members of Parliament told emotional stories of their own childhood sexual abuse. The government responded with legislation and sharp comment. The public reeled. Many Canadians assume that sexual offences against children will result in meaningful periods of incarceration aimed at incapacitating offenders. They also understood such sentences are expressions of society’s denunciation of sexual crimes.
But this disconnect between public and political sentencing expectations and the reasoning of a cloistered judiciary is not new. The outcome in Senneville is merely the inevitable conclusion of a long line of cases dealing with cruel and unusual punishment, mandatory minimums, and an overly active judicial imagination.
A showdown now appears increasingly likely between Parliament – intent on re-establishing mandatory minimum sentences for sexual offences against children – and a judiciary unwilling to tolerate the loss of its discretion to impose sentences below these minimums.
This confrontation has been decades in the making. It began with the abandonment of the original meaning of the right not to be subjected to cruel and unusual punishment, which was designed to protect the public from the judiciary, not legislatures. After the adoption of the Charter, the SCC expanded its powers by emulating the approach taken by the Supreme Court of the United States.
R v. Nur was the inflection point of a trajectory that would see the SCC surpass its American analogue. It now appears to mark a point of no return, when the SCC committed to a style of constitutional review that abandoned the traditional limits of cases and controversies and embraced a power to strike down duly enacted laws constrained only by judicial imagination.
The reasonable hypothetical doctrine the SCC unshackled in Nur now allows trial courts across the country to strike down mandatory minimums based on imagined scenarios in which a given minimum would be grossly disproportionate. The elaboration of such scenarios has produced flights of judicial fancy that strain the credulity and the patience of the Canadian public. The logic of Nur has created an impasse, and a resolution is needed to preserve the separation of powers and maintain a credible, defensible justice system. It is time to reconsider the limits of the reasonable hypothetical doctrine. By understanding how we entered this jurisprudential quagmire, we might yet find a way out.
Restrictions on criminal sentences before the Charter
The use of the reasonable hypothetical doctrine to strike down mandatory minimums is particularly troubling when viewed in a historical context that predates the Charter. Over time, the right not to be subjected to cruel and unusual punishment, originally intended to protect citizens from judicial overreach, has been transformed by the judiciary into a tool to take power away from legislators. In effect, a restriction designed to curb the exercise of arbitrary power by the judiciary has become an unrestrained power to strike down duly enacted laws.
To show how the judiciary transformed the meaning of this right, we must recover the original meaning of the term “cruel and unusual punishment.” For centuries, this phrase had a clear and unambiguous meaning that had nothing to do with the length of penal sentences. That meaning took hold at the time of the Glorious Revolution, when it became one of the rights considered central to the constitutional settlement that would define all Westminster democracies. The SCC, choosing to imitate the judicial activism of the American judiciary, later subverted this right after the Charter came into force.
Cruel and unusual punishment limits the judiciary’s abuses
The prohibition on cruel and unusual punishment entered into the common law tradition in 1689, as a response to judges imposing arbitrary sentences contrary to statute. The need to address arbitrary sentences had become clear four years earlier, when English clergyman Titus Oates was convicted of perjury and sentenced to life imprisonment, along with the additional punishment of being whipped through the streets of London for five days each year.
The Justices of the Court of King’s Bench imposed this cruel and unusual sentence because they could not sentence Oates to death for his crime, as the Elizabethan Statute of Perjury did not allow such a punishment (the Perjury Statute 1563, 5 Eliz. I. c. 9.). At sentencing, the Justices decried that limitation. Accordingly, contemporary observers interpreted the flogging as an attempt to execute Oates despite having no power to impose capital punishment (Macauley 1849, 487). Lord Justice Jeffreys, who was infamous for presiding over the Bloody Assizes,[1] asserted that he had a plenary power to sentence those convicted, because in his view the Court of King’s Bench had inherited the powers of the Court of Star Chamber. Accordingly, Jeffreys noted at Oates’ sentencing that “it is left to the discretion of this Court, to inflict such Punishment as they think fit.” (R v. Oates (1685), 10 How. St. Tr. 1079, 1227). However, the Star Chamber had been abolished in 1641 because, as Parliament noted: its “Judges have not kept themselves to the points limited by the said statute . . . to inflict heavier punishments that by any law is warranted” (Act for the Abolition of the Court of Star Chamber 1641, 17 Car. I. 10, c. 34.).
From the beginning, at the framing of the Bill of Rights, 1689, the prohibition on cruel and unusual punishment constrained judges, not legislatures. This remained obvious when the earliest constitutional conventions transplanted it into North American constitutions. For example, the Massachusetts Constitution of 1780 states: “No magistrate or court of law shall . . . inflict cruel or unusual punishments.” It took over a century for American judges to invert its original meaning, turning themselves into those who could limit what had previously constrained them, namely, duly enacted legislation.
This reversal began in the Progressive Era, when the Supreme Court of the United States seized the opportunity to strike down purportedly disproportionate sentences, despite statutory authorization (Weems v. United States, 217 U.S. 349 (1910)). Chief Justice Edward Douglass White and Justice Oliver Wendell Holmes dissented from the first decision that found a punishment set by statute to be disproportionate, arguing that the constitutional right “cannot be extended so as to limit legislative discretion in prescribing punishment” (Weems v. United States, 217 U.S. 349 (1910)).
Cruel and unusual punishment was explicitly prohibited in Canada for the first time in 1960. However, as Chief Justice Lamer noted, claims alleging purportedly disproportionate sentences contrary to the Canadian Bill of Rights were “dismissed out of deference to Parliament’s wisdom in enacting the challenged legislation” (R v. Smith, [1987] 1 S.C.R. 1045 (S.C.C.)). More bluntly, the British Columbia Court of Appeal noted in 1975 that “the Court cannot substitute its opinion (if it is different) for Parliament’s” (R v. Miller, [1975] 24 C.C.C. (2d) 401 (B.C.C.A. 1975)).
Chief Justice Bora Laskin disagreed with this approach, pointing specifically to “judgments in the Supreme Court of the United States, which I would not discount as being irrelevant here” (Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680 (S.C.C.)). The path toward the reasonable hypothetical doctrine and the elimination of mandatory minimum sentences began with the rejection of Canada’s historically grounded understanding of the purpose of the right not to be subjected to cruel and unusual punishment, in favour of an American approach designed to turn judges into the final arbiter of sentencing policy.
The Charter’s Americanization of cruel and unusual punishment
Prior to the patriation of the Constitution in 1982, the Supreme Court of Canada had been described by Ian Bushnell as the “captive court,” but this description only makes sense if it is compared to the Supreme Court of the United States, especially from 1953 onward. As Chief Justice of that court, Earl Warren swept away precedents in favour of new principles, initiating a revolution in American jurisprudence. The discarding of the time-tested limitations on judicial power continued during the tenure of Chief Justice Warren Burger.
During the thirty years before patriation, the SCC could only gaze in wonder at the growing strength of its counterpart to the south. From 1970 to 1982, this awe was transformed into envy, as the judicial appointments of Pierre Trudeau’s government brought Justices to the SCC who could not help but covet what they saw. These appointments began with Bora Laskin’s. By patriation, he had been joined by six more Justices appointed by Trudeau. Only three years after the coming into force of the Charter, the rate at which the Supreme Court of Canada struck down legislation now matched that of the Supreme Court of the United States. According to one legal historian, “Pierre Elliott Trudeau undertook the main challenge to formalism on the Court . . . Trudeau-era appointees to the Court were expected to accept a role in law reform, to recognize a duty and a responsibility to interpret law in accordance with contemporary thought” (Bushnell 2010, 141).
It is not surprising that after patriation, the SCC’s approach to section 12’s prohibition on cruel and unusual punishment would begin to track the activist approach that had been adopted by the US Supreme Court (Trop v. Dulles, 356 U.S. 86, 100–01 (1958)).
It was within this context of Americanization that a doctrine known as the “reasonable hypothetical” emerged. Advocates on the bench described this doctrine as a modest and pragmatic approach to ensure that courts did not uphold laws whose application would violate section 12 merely because the offender was particularly blameworthy. “Reasonable hypotheticals” required the court to look beyond the particular offender before them, and to consider the constitutionality of a punishment if it were to be applied to another less blameworthy defendant.
From the outset, however, the use of reasonable hypotheticals was controversial. Over time, that unease has proven well-founded. What was once presented as a constrained analytical tool has, through a series of majority decisions, evolved into a speculative method of constitutional review. The result has been a steady expansion of judicial power in sentencing matters and a corresponding hollowing out of mandatory minimum penalties enacted by elected representatives.
The rise and expansion of the reasonable hypothetical doctrine
The birth of controversy: R v. Smith
The doctrine of the reasonable hypothetical entered Canadian constitutional law in R v. Smith (R v. Smith, [1987] 1 S.C.R. 1045 (S.C.C.)), a case that continues to cast a long shadow over section 12 jurisprudence. Smith concerned a seven-year mandatory minimum sentence for importing narcotics. The accused, Edward Dewey Smith, had returned to Canada from Bolivia with a large quantity of high-purity cocaine valued at over $100,000. He pleaded guilty and received an eight-year sentence. This was a sentence that was above the mandatory minimum, and one which no member of the SCC had suggested was grossly disproportionate. The constitutional challenge therefore did not turn on the actual facts of the case, but on a scenario the Court posited.
The majority assessed the validity of the mandatory minimum by reference to a hypothetical offender at the very low end of the spectrum of offences: a young person returning to Canada from a winter break in the United States with a single marijuana joint. Because the statutory definition of “importing” captured both the actual and the hypothetical cases, the majority reasoned that the seven-year mandatory minimum would apply equally in both scenarios. In the hypothetical circumstances that the SCC described, the majority concluded that the punishment would be grossly disproportionate, and would therefore violate section 12. As the majority memorably put it, a judge who imposed such a sentence “would certainly be considered by most Canadians to be a cruel and, all would hope, a very unusual judge.”
The majority’s reasoning inserted an influential notion into Canadian constitutional law: that legislation may be struck down not because of how it operates in the case before the court, but because of how it might operate in other reasonably foreseeable circumstances. That new doctrine was rationalized as a safeguard against injustice. A constitutional guarantee, the SCC reasoned, cannot depend on the happenstance of the particular offender who brings the challenge.
From the outset, this approach provoked serious concern from the bench. Writing in dissent, Justice McIntyre warned that the majority’s analysis had “an air of unreality.” The constitutional question, he emphasized, did not arise on the facts of the case before the SCC. By invalidating legislation because of how it might affect a hypothetical third party, the majority risked transforming section 12 analysis into an exercise detached from the realities of adjudication. In his dissenting view, individuals should be confined to arguing that their own punishment is cruel and unusual, not that it would be so for someone else in an imagined – and perhaps even fanciful – scenario.
Justice McIntyre’s dissent was not merely a disagreement about outcome. It articulated a deeper institutional concern that constitutional review grounded in hypotheticals, rather than lived judicial experience, would lack principled limits. If courts were free to imagine alternative applications of the law untethered from prosecutorial practice or the realities of sentencing, it would be difficult to draw a coherent line between legitimate constitutional scrutiny and speculative judicial policymaking.
Smith did more than introduce the reasonable hypothetical. It revealed, at the moment of the doctrine’s birth, a fundamental disagreement about the proper scope of judicial power in sentencing. The disagreement between restraint grounded in reality and abstraction justified in the name of constitutional principle has never been resolved. Instead, as later cases demonstrate, it has only widened.
Early attempts at restraint: R v. Goltz and R v. Morrisey
In the years following Smith, the SCC confronted the consequences of introducing constitutional review by reasonable hypothetical without articulating any clear limits on the powers of the judicial imagination. The result was a jurisprudence marked by unease. That unease found expression in a series of decisions that sought to erect guardrails around the doctrine.
The most explicit attempt came in R v. Goltz (R v. Goltz, [1991] 3 S.C.R. 485 (S.C.C.)). The case concerned a mandatory minimum sentence of seven days’ imprisonment and a $300 fine for the offence of driving while prohibited from operating a motor vehicle. The statutory scheme in Goltz captured a broad range of conduct, from wilful disregard of court orders to relatively inoffensive technical breaches.
When considering whether the mandatory minimum violated the prohibition on cruel and unusual punishment, the SCC was asked to consider a hypothetical scenario involving an elderly man who had accumulated penalty points for minor infractions such as excessively slow driving. In this scenario, the elderly man, while prohibited from driving, was forced by a medical emergency to drive his grandson from a remote fishing hut to the nearest hospital. If convicted, he would be subject to the mandatory minimum term of imprisonment, even on a first offence.
Despite the attempts to pluck their heartstrings, the majority declined to strike down the law on the basis of this emotive hypothetical scenario. In doing so, the SCC cautioned that section 12 analysis does not permit invalidating legislation on the basis of “remote or extreme examples.” The appropriate scope of the doctrine must be limited to “imaginable circumstances which could commonly arise in day-to-day life.”
This language reflected an effort to anchor reasonable hypotheticals in judicial experience and practical reality, rather than to release them into a realm of abstract possibilities. The majority distinguished Smith on the basis that it was genuinely foreseeable that such “small offenders” would be subjected to the harshness of the mandatory minimum. By contrast, the scenario advanced in Goltz was far too attenuated from the ordinary operation of the law to justify constitutional invalidation.
That said, Goltz also revealed the fragility of these constraints. The dissent took a markedly different approach, arguing that it was unnecessary to identify a particular hypothetical with precision. The dissenting Justices reasoned that it was inevitable the mandatory minimum would produce grossly disproportionate sentences in some cases. That inevitability, rather than demonstrable experience, was in their view sufficient. The tension exposed in Goltz persisted in R v. Morrisey (R v. Morrisey, [2000] 2 S.C.R. 90 (S.C.C.)), which again attempted to articulate limits on the use of reasonable hypotheticals.
Despite this guidance, the SCC did not (and perhaps could not) supply a principled basis for distinguishing between hypotheticals that were sufficiently grounded in reality and those that were not. The requirement that scenarios be grounded in “common sense” or have a “degree of generality” provided rhetorical reassurance, but did not produce doctrinal clarity. There was no bright line separating permissible forewarning from impermissible speculation.
In essence, Goltz and Morrisey did not make the law clearer or more consistent, but they did show commendable judicial self-awareness. The SCC recognized the danger inherent in the reasonable hypothetical approach and attempted to constrain its use. Notably, these cases confirm that the concerns later voiced in dissent were not novel objections raised by a minority resistant to constitutional scrutiny. They were concerns shared by majorities of the SCC at a stage when restraint was still a virtue.
That restraint would not endure. As the SCC’s subsequent jurisprudence reveals, the guardrails attempted in Goltz and Morrisey would first be ignored, then ultimately destroyed.
R v. Nur: The turning point
If Goltz and Morrisey represented an effort to impose some discipline on the use of the reasonable hypothetical doctrine, Nur (R v. Nur, [2015] 1 S.C.R. 773 (S.C.C.)) marked a decisive departure from their restraints. Nur now stands as the leading case on reasonable hypotheticals and section 12; it cemented the doctrine into the foundation of the constitutional jurisprudence that governs our regime of criminal sentencing. In Nur, the SCC did not merely apply the reasonable hypothetical framework. Rather, it redefined its scope in a way that fundamentally altered section 12 analysis, which set the stage for the problematic jurisprudence that followed.
The mandatory minimums at issue in Nur applied to certain firearms offences carrying significant prison terms. Notably, the SCC accepted that the mandatory minimum sentences were not grossly disproportionate for either of the accused in the cases being appealed. The constitutional violation identified by the majority arose not from the actual facts, but from hypothetical scenarios said to be reasonably foreseeable.
The majority described this approach as consistent with the SCC’s prior section 12 jurisprudence, and emphasized that reasonable hypotheticals were a “workable” and necessary tool of constitutional review. But in articulating how those hypotheticals were to be assessed, the SCC departed in material and particularly troubling ways from the limits previously emphasized in Goltz and Morrisey.
In particular, the majority rejected the notion that hypotheticals must reflect circumstances that arise frequently in the day-to-day application of the law. The inquiry, the SCC held, is not whether a hypothetical is likely, typical, or grounded in mainstream conduct, but whether it is merely not “remote or far-fetched.” By lowering the threshold in this way, the majority effectively replaced experientially grounded analysis with open-ended assessment of conceptual possibilities.
The hypothetical relied upon in Nur exemplifies this transition. The SCC posited the existence of a licensed and responsible firearm owner who stores an unloaded gun and ammunition in close proximity, mistakenly believing this to be lawful. Given that hypothetical offender’s minimal moral blameworthiness and the absence of harm, the majority concluded that a three-year mandatory minimum would be grossly disproportionate and “totally out of sync” [sic.] with sentencing norms.
The justices in the minority, Rothstein, Moldaver, and Wagner, JJ., rejected this reasoning in a forceful dissent. They emphasized that the hypothetical scenario articulated by the majority was unsupported by anything from the realms of judicial or prosecutorial experience. The dissent’s concern was not merely about the outcome, but about the methods adopted to arrive there. By untethering reasonable hypotheticals from the realities of the law’s actual operation, the majority replaced a pattern of restraint with an invitation to speculation. The dissent’s warning was explicit: once the requirement of experiential grounding is abandoned, there is little to prevent section 12 review from becoming an exercise in abstract moral judgment rather than constitutional adjudication.
That warning would be unheeded, and what was foretold would come to pass. This became clear as lower courts began applying it. For example, in R v. Tran (R v. Tran, [2017] O.N.S.C. 651 (O.N.S.C.)), the Ontario Superior Court directly and candidly addressed whether the limits articulated in Goltz and Morrisey continued to govern the use of reasonable hypotheticals. The court in Tran held that the analytical framework articulated in Goltz and Morrisey was “no longer good law” (R v. Tran, [2017] O.N.S.C. 651 at 118 (O.N.S.C.)), having been impliedly overruled by Nur.
Relying on Chief Justice McLachlin’s reasons in Nur, the court in Tran concluded that hypotheticals need not be excluded simply because they fall outside mainstream conduct. Marginal hypotheticals could be considered, provided they were “reasonable” and not far-fetched. The emphasis on commonality, day-to-day experience, and typical application – once central to section 12 analysis – was treated as incompatible with the post-Nur doctrine.
The significance of Tran lies not in its authority, but in its candour. It confirms that Nur was understood as the destruction of the guardrails that had previously constrained reasonable hypothetical analysis. The limits the SCC had asserted were necessary to preserve realism and restraint when assessing Parliament’s decisions to implement particular sentencing schemes were now understood to have been deliberately set aside.
Nur thus represents the inflection point of the jurisprudence governing criminal sentencing. It is the moment at which the SCC chose speculation over experience, possibility over practice, and in doing so set section 12 jurisprudence on a path with consequences that would soon become impossible to ignore.
R v. Lloyd: Institutional unease – and a missed course correction
If Nur marked the point at which the SCC abandoned the critical experiential constraints articulated in Goltz and Morrisey, R v. Lloyd (R v. Lloyd, [2016] 1 S.C.R. 130 (S.C.C.)) revealed that the SCC was not blind to the institutional consequences of that choice. Rather than restoring restraint, however, the majority in Lloyd responded to growing criticism by entrenching the Nur framework and attempting to manage its fallout through legislative proposals.
Lloyd concerned a one-year mandatory minimum sentence for certain drug trafficking offences. As in Nur, the SCC accepted that the mandatory minimum was not grossly disproportionate for the offender before it. The constitutional question was whether a mandatory minimum sentence for a hypothetical offender at the low end of the offence spectrum would be grossly disproportionate.
Notably, the majority explicitly acknowledged Parliament’s role in establishing sentencing policy. It conceded that mandatory minimums are often enacted to limit judicial discretion and to signal societal denunciation of serious crimes. Yet the SCC suggested that if Parliament wished to preserve mandatory minimums that apply to offences by casting a “wide net,” it should instead narrow the scope of their application or provide judges with discretion to impose a lesser sentence whenever they deemed the mandatory minimum to be grossly disproportionate. The Court presented this latter proposal, now known as the judicial “safety valve,” as a pragmatic solution, but it failed to note that it was a solution to the problem the Court had created.
The nature of that proposal is revealing. It reflects an implicit recognition that the SCC’s section 12 jurisprudence had placed all mandatory minimums into a precarious position. Rather than revisiting the reasonable hypothetical doctrine itself, the majority effectively invited Parliament to legislate around its restrictions. In doing so, the SCC reframed a constitutional problem of its own making as an issue that stemmed from imprecise legislative drafting.
Lloyd represents a missed opportunity for a course correction in section 12 jurisprudence. The SCC acknowledged the tension between constitutional review and legislative authority, yet declined to address its source. By leaving the reasonable hypothetical doctrine untouched and proposing safety valves as a workaround, the majority ensured that the underlying problem would persist – and intensify.
When the guardrails are removed: The post-Nur doctrine
Once reasonable hypotheticals were freed from the constraints of common experience, prosecutorial practice, and mainstream sentencing norms, the invalidation of mandatory minimum sentences ceased to be an exceptional practice. The jurisprudence that followed Nur and Lloyd reveals not a sudden doctrinal collapse, but the erosion that follows in the wake of the SCC’s earlier premises. The cases that provoked such public shock were not so provocative because they were out of line with established doctrine, but because they exposed the consequences of speculative constitutional review in the unforgiving light of reality.
Run from the Hills: Firearms offences trivialized
The ugliness exposed by that harsh reality became unmistakable in R v. Hills (R v. Hills, [2023] 1 S.C.R. 6 (S.C.C.)). The case concerned a four-year mandatory minimum sentence for intentionally discharging a firearm into or at a place, knowing that (or being reckless as to whether) another person was present. This is – or at least was – a very serious Criminal Code offence.
The majority struck down the mandatory minimum on the basis of a reasonable hypothetical involving a young person who discharges an air-powered pistol or rifle at a residence, knowing someone is inside, but using a weapon incapable of penetrating the walls. The SCC concluded that this scenario fell within the scope of the offence and that the mandatory minimum would be grossly disproportionate in that hypothetical scenario.
Justice Côté dissented. She rejected the hypothetical as untethered from judicial experience and common sense, emphasizing that it had never resulted in a conviction – and it never would. Her dissent underscores the now-familiar divide: On one side, there is a majority willing to invalidate legislation based on marginal hypotheticals and on the other, a minority insisting on experiential grounding and judicial restraint.
Bertrand Marchand and Senneville: Red lines crossed
In R v. Bertrand Marchand (R v. Bertrand Marchand, [2023] S.C.J. No. 26 (Q.L.) (S.C.C.)) the SCC applied this expanded approach of the reasonable hypothetical doctrine to one of the Criminal Code offences Parliament and the public take especially seriously (and treat as particularly morally blameworthy): offences involving the sexual exploitation of children. The case concerned mandatory minimum sentences for child luring. This is a hybrid offence where the Crown has discretion in whether to proceed by indictment or summary conviction, which carry mandatory minimum sentences of one year and six-months, respectively.
The facts before the SCC involved deeply serious conduct. When he was 22 years old, the accused initiated contact with a 13-year-old victim, maintained an online relationship for two years, met her in person, and engaged in sexual intercourse with her multiple times. The sentencing judge imposed a five-month sentence, finding the one-year mandatory minimum grossly disproportionate. On appeal, the SCC increased the sentence to twelve months (effectively imposing the mandatory minimum) while nevertheless striking the minimum down as unconstitutional.
The majority relied on two reasonable hypotheticals. The first involved a first-year high school teacher in her late twenties, experiencing a bipolar manic episode, who sends sexual text messages to a 15-year-old student, and they then engage in sexual touching one time. The majority concluded that the fit sentence in this scenario would be 30 days. The second hypothetical involved an 18-year-old who requests an explicit image from a 17-year-old partner and forwards it to a friend, who briefly retains the image. The majority found that in the second scenario the appropriate sentence would be a conditional discharge.
That brings us back to Senneville, where the majority’s reckless jurisprudential trajectory approaches escape velocity. The offences in Senneville involved the possession, accessing, and distribution of child sexual abuse material, crimes Parliament has long treated as among the most serious, precisely because they perpetuate and incentivize the sexual abuse of children.
The facts were grotesque. The two separate accused adult men possessed hundreds of images depicting the violent sexual assault of very young children. The mandatory minimum at issue in the appeal pertained to the offence of accessing child pornography. For Mr. Senneville’s accessing offence, the sentencing judge imposed a sentence of only 90 days of intermittent imprisonment. On appeal, the sentence was increased to one year of incarceration. Yet the SCC nevertheless struck down the one-year mandatory minimum as unconstitutional, based on a reasonable hypothetical.
That hypothetical was similar to the one posited in Bertrand Marchand: a 17-year-old boy receives a sexual image from his 17-year-old girlfriend. He forwards it to an 18-year-old friend, and the friend briefly views and retains the image knowing it constitutes child pornography. The SCC held that, in the digital age, such a scenario was reasonably foreseeable and that a one-year sentence would be grossly disproportionate.
Taken together, Senneville, Bertrand Marchand, and Hills demonstrate the consequences of the SCC’s post-Nur approach to the doctrine. Once marginal hypotheticals divorced from sentencing reality are permitted to drive constitutional invalidation, no category of offence is immune. Firearms offences, sexual exploitation of children, and child pornography all become vulnerable. This was never the intention of Parliament. It is a consequence of the SCC’s constitutional analysis drifting from the experience of the adjudication of particular cases to unconstrained abstraction.
Conclusion
It has taken decades for the Supreme Court of Canada to reach the untenable position it now finds itself in. The Court appears committed to the proposition that the Parliament of Canada cannot re-insert one-year mandatory minimums for such offences as child luring and sexual abuse of a minor under sixteen years old back into the Criminal Code, despite ever-louder hue and cry from the public. It is essential to understand how the SCC found itself in this predicament if a destructive confrontation between the legislatures and the judiciary is to be avoided.
R v. Nur was the moment that the evolution of the reasonable hypothetical doctrine passed the point of no return. After Nur, every attempt to restrain the doctrine to limits, however broad, would prove fruitless, despite multiple searing dissents. The majority on the SCC seems oblivious to the fact that striking down one-year and six-month mandatory minimums for offences related to the sexual exploitation and abuse of children puts the SCC at odds with the Canadian public.
What is worse, the SCC seems comfortable with blaming Parliament for its attempts to preserve its constitutionally allotted power to determine sentencing policies and the appropriate balance to be struck between denunciation and rehabilitation.
The solution the SCC has proposed – the so-called safety valve provision – is blatantly self-serving. It will lead to the eternal return of the same problem, only in a less systematic manner, as particularly blameworthy offenders are given unconscionably lenient sentences on an ad hoc basis. A mandatory minimum that can be bypassed that easily will only lead to more anger and an erosion of public trust in the judiciary and the criminal justice system.
The hour is late, and the judgment of the public on an errant judiciary is at hand. It is not too late to reverse course; the SCC will need to renounce the hubris of the past decades and embrace humility, potentially in the face of unprecedented expressions of disdain. It can only be hoped, with the prospect of federal use of the notwithstanding clause on the horizon, that the Supreme Court of Canada will conclude that judicial discretion is the better part of valour, and that restraint is an underappreciated virtue.
About the authors
Christine Van Geyn is the interim executive director of the Canadian Constitution Foundation. She has been with the CCF since 2020 and is also a bestselling author and host of the national broadcast television program Canadian Justice. Van Geyn earned her undergraduate degree in Political Science and Ethics, Society, and Law at the University of Toronto, Trinity College. She earned her JD at Osgoode Hall Law School, and also studied at New York University School of Law. She was called to the bar in Ontario in 2012. Before joining CCF, she practised commercial litigation, and then was the Ontario director of a national non-profit where she was involved in several high-profile constitutional challenges.
Ryan Alford is a professor at the Bora Laskin Faculty of Law and a Bencher of the Law Society of Ontario. He is the author of three books about the rule of law published by McGill-Queen’s University Press, most recently By Authority of Parliament in 2026. He is the applicant on a challenge to the abrogation of freedom of speech and debate and Parliament, an appeal to be decided by the Supreme Court of Canada in 2026. He is also a board member of the Runnymede Society, and served as the general editor of Unwritten Constitutionalism, a volume of essays presented at the Runnymede Society’s academic symposium in 2022.
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[1] This took place in the aftermath of the Monmouth Rebellion: it was a weeks-long court session in which hundreds were sentenced to death, many by hanging, drawing, and quartering, after which their bodies were displayed in gibbets throughout Somerset.
