This article originally appeared in The Hub.
By Christine Van Geyn, July 20, 2026
Recently Canadians have watched with disbelief as courts have struck down mandatory minimum sentences for some of the most heinous crimes our society recognizes: the sexual abuse of children.
Within a month, Canadians saw an Ontario Superior Court strike down the five-year mandatory minimum for incest with a child, yet the Supreme Court reinstated the six-month mandatory minimum for soliciting a child for prostitution. What exactly is going on?
This push-pull over mandatory minimums is not new. Since the 1980s, the Supreme Court has gone back and forth over the role and breadth of a doctrine called “reasonable hypotheticals.” The doctrine was introduced in the court’s 1987 R. v. Smith ruling. Even then it was controversial.
A reasonable hypothetical is an imagined scenario in which applying a law would produce a cruel and unusual punishment contrary to Section 12 of the Charter. In Smith the majority reasoned that the constitutionality of a law should not depend on the particular offender before the court. The dissent warned that this approach would detach Section 12 analysis from reality.
That warning has proved prescient. In R. v. Nur (2015), the Supreme Court held that hypotheticals need not be likely, typical, or grounded in mainstream conduct; they need only be not “remote or far-fetched.” By freeing hypotheticals from the constraints of common experience and prosecutorial practice, Nur accelerated constitutional challenges to mandatory minimums and it has now expanded to offences involving the sexual exploitation of children.
In Bertrand Marchand (2023) the Supreme Court struck down the one-year mandatory minimum for child luring on the basis of two hypothetical scenarios. The actual facts of the case involved a 22-year-old man initiating online contact with a 13-year-old victim, with whom he went on to repeatedly have sexual intercourse.
In Senneville (2025), the Supreme Court struck down the one-year mandatory minimum for accessing child pornography by relying on a hypothetical involving teenagers sharing a sexual image, even though the actual offenders were adult men who possessed hundreds of images and videos depicting the violent sexual abuse of very young children. The sentencing judge had imposed only 90 days of intermittent imprisonment on one of the offenders before the sentence was increased on appeal to one year.
That brings us to this summer. In R. v. D.C., the Ontario Superior Court struck down the five-year mandatory minimum for incest with a child under 16. The accused had sex with his sister repeatedly over four years while she was between 12 and 16 years old. Both have intellectual disabilities. The decision is hard to read. It describes how in many instances the victim protested, experienced pain, and was rewarded with money or candy after the assaults.
Yet even on those facts, the court concluded that the appropriate sentence was a conditional sentence of two years less a day, served in the community. It also struck down the mandatory minimum based on a hypothetical involving an intellectually disabled 18-year-old who has consensual sexual intercourse with his nearly 16-year-old sister on one occasion as “sexual experimentation.” It is difficult to imagine that many Canadians would regard either scenario as deserving a sentence below five years.
Then last week, in Quebec v. Denis, the Supreme Court upheld the six-month mandatory minimum for soliciting a child for prostitution. The Quebec Court of Appeal had struck it down based on a hypothetical involving an 18-year-old with romantic feelings for a minor who agrees to exchange sex for money. The Supreme Court removed the offender’s romantic feelings from the hypothetical, holding they “insidiously taint” the analysis of moral blameworthiness, and concluded that six months imprisonment was not grossly disproportionate. The dissent disagreed, finding that a conditional sentence would have been appropriate.
Denis may appear to be a retreat from reasonable hypotheticals, but it is not. It is a disagreement about proportionality. The majority and dissent accepted the same constitutional framework but reached opposite conclusions about whether the hypothetical justified the mandatory minimum. The debate has shifted from whether hypothetical offenders should govern constitutional review to whether a particular hypothetical crosses the constitutional line.
That distinction matters because it leaves the underlying doctrine untouched. Future courts remain free to construct different reasonable hypotheticals and conclude that other mandatory minimums are grossly disproportionate. Denis may narrow one application of the doctrine, but it does not provide a principled limit on it.
Parliament’s response to the unshackling of reasonable hypotheticals from reality was Bill C-16, the Protecting Victims Act, introduced following Senneville. But rather than revisiting the reasonable hypothetical doctrine, Parliament changed only the remedy. Once the act comes into force later this month, judges will be able to use a statutory “safety valve” to impose a sentence below the mandatory minimum whenever applying it would violate Section 12. The safety valve closely resembles a remedy suggested by the Supreme Court in Lloyd.
But Senneville, D.C., and even the split in Denis demonstrate that judges differ dramatically in what they regard as a constitutionally proportionate sentence. Parliament enacted mandatory minimums because it believed certain offences should never receive sentences below a defined floor. Bill C-16 leaves that disagreement intact. Instead of striking down mandatory minimums, courts will increasingly bypass them. The constitutional debate has not been resolved. It has merely changed form.
Christine Van Geyn is interim executive director of the Canadian Constitution Foundation, and a member of the Macdonald-Laurier Institute’s Landmark Cases Council.
