Understanding Quebec v Senneville, Part III: Interview with Emmett Macfarlane

This is the third in a series of three expert interviews on the Supreme Court of Canada’s recent judgment in Quebec v Senneville — a judgment that elicited a great deal of public attention and controversy when it was released in October 2025.

In Senneville, the Supreme Court struck down two mandatory minimum sentencing provisions relating to possession and accessing of child pornography, ruling that these sentences violated section 12 of the Canadian Charter of Rights and Freedoms. In reaching this conclusion, the Court used the “reasonable hypothetical” approach that has become a standard part of its mandatory minimums jurisprudence, reasoning that the statutory minimum sentence of one year in prison would be grossly disproportionate if applied, for example, to an otherwise law-abiding 18-year old receiving a second hand sext from a 17-year old.

In this final interview of the series, Kira Davidson, Public Legal Education Coordinator with the CCS, spoke to Professor Emmett Macfarlane (University of Waterloo, Department of Political Science), who provides insight on the effects mandatory minimums have on sentencing decisions, reflects on the public reaction to the Senneville decision, and considers how Parliament's response can balance Charter rights with criminal penalties.

Q. When mandatory minimums have been struck down in other cases, what effect has that had? Do we know (i.e. do we have data that tells us) if sentencing decisions tend to fall significantly below the old threshold once it’s invalidated, or do sentencing patterns remain more consistent?

A. We don’t have a lot of great data or studies on this point. One recent study in the Canadian context shows that the introduction of mandatory minimums in 2005 for sexual offences against children and for child pornography resulted in significant increases in sentencing lengths, at times substantially more than the newly imposed minimum. The authors of that study concluded that the introduction of mandatory minimums resulted in judges and prosecutors changing their overall sentencing behaviour. So there’s some reason to think the impact of mandatory minimums (or their removal) don’t have a simple direct effect but instead send signals to decision-makers.

While it seems intuitive that at least some sentences might be reduced after a mandatory minimum is struck down, the complexity of sentencing law and the general trend to also raise overall sentences in recent years makes it unclear just how much an impact these court decisions have. Mandatory minimums are only one part of the equation. There have been times when Parliament has simply increased the maximum available penalties for certain crimes, and it’s reasonable to assume this has had a similar effect of raising sentences overall as well.

Another complication is that in many cases where courts have struck down mandatory minimums the actual sentence imposed on the defendant in those cases remained at or above the minimum. This is because the laws are sometimes stuck down on the basis of a “reasonable hypothetical” scenario. The prescribed minimum is not going to be grossly disproportionate in most cases. When a mandatory minimum is struck down it doesn’t change the top part of a sentencing range, and so while I would assume there is some overall impact, it’s not entirely clear that there would be a one-to-one impact on overall sentences in cases where mandatory minimums are struck down.

Q. Rather than decisively resolving Charter issues, judicial invalidation effectively sends Parliament or a provincial legislature back to the drawing board, giving legislators an opportunity to adjust the balance the invalidated law struck between competing interests (i.e. Charter rights and governmental objectives). With that opportunity now handed to Parliament, how should MPs respond?

A. There’s an obvious way to balance the Charter concerns at stake with Parliament’s general desire to be “tough on crime”: pass laws that include a safety valve for cases where the imposition of a severe sentence would be unjust. In other words, tailor the laws to demand tough sentences where appropriate but to also protect judicial discretion in extreme or unintended circumstances.

This appears to be the Carney government’s intention with the recently introduced Bill C-16, which seeks to restore certain mandatory minimums but with provisions that would “permit courts to order that an offender serve a period of imprisonment below a mandatory minimum term of imprisonment, but only if the mandatory minimum term of imprisonment would amount to cruel and unusual punishment for that particular offender.”

This seems like an eminently reasonable approach, although it does not address whether the broader approach to criminal law — a focus on increasing the severity of penalties — does much to deter crime. There also remains the risk that increasing sentences exacerbates existing systemic inequalities in the justice system, such as the overincarceration of Indigenous people.

Q. What should the public take away from the Senneville case? Are there any aspects of the Court’s reasons that have been or are being drowned out by the political backlash that followed the decision? And is there anything the Court could have done to lower the risk of backlash, or did the nature of the case make it an inevitable lightning rod?

A. A lot of the reaction from certain politicians and media commentators to the Court’s decision in Senneville was histrionic and misleading. While the Court’s reliance on reasonable hypotheticals is understandably controversial, the underlying logic that there are circumstances where certain mandatory minimums would result in a gross injustice — or constitute cruel and unusual treatment — is difficult to deny. The specific hypothetical the Court used in Senneville, which required us to think about two teenagers sharing intimate images of their teenaged sexual partners, is a scenario that could be captured by the law and that most people would agree shouldn’t result in a year’s jail time for child pornography. Yet the backlash from media commentators and politicians portrayed the Court as soft on crime or even as sympathetic to child sex offenders, which was absolutely absurd.

I’m not sure what the Court could have done to avoid being misrepresented the way it was. What we saw was basically disinformation about the decision. Some of these commentators and politicians either didn’t bother reading the Court’s decision or intentionally ignored what the Court actually said to make it easier for them to generate clicks or outrage.

More significantly, I would say that nothing about that decision or others that have struck down mandatory minimums means that the courts are “soft on crime” or an obstacle to severe penalties. Indeed, these cases have done nothing to prevent Parliament from increasing maximum available penalties in a variety of areas. Moreover, the legislative solution now being pursued by the Carney government strongly suggests that it’s possible to pursue tougher criminal penalties in a Charter-compliant manner.

Q. In the aftermath of the Senneville judgment, there was a lot of discussion about whether Parliament should invoke the notwithstanding clause to override the decision. This isn’t the first time we’ve heard calls for a federal notwithstanding invocation in the criminal law field (the last was in response to the SCC’s Bissonnette decision). How close do you think we’re getting to a first federal invocation, and is it concerning if the clause is used for criminal law?

A. I’d like to the think the current government will avoid using the notwithstanding clause. Conservative leader Pierre Poilievre has now threatened or promised to use it on multiple occasions. In this instance, it would be completely unnecessary to use it, as I think Bill C-16 shows Parliament has a pretty free hand to legislate and achieve the objectives it wants without recourse to a heavy-handed constitutional power like the notwithstanding clause. But, unfortunately, caution has been thrown to the wind at the provincial level with regard to Charter rights and a willingness to stomp on minority rights in a pretty vicious way, and we haven’t seen the public react in part because it is unpopular minorities — religious minorities in Quebec, trans people in Alberta, etc. — who are being targeted by provincial governments willing to override Charter rights without fear of political backlash. I think the Poilievre Conservatives won’t be shy about using the clause in similar fashion were they to gain power.

It will be particularly attractive, politically-speaking, for a populist right-wing government to use the clause in the criminal law context. Criminal defendants are an unpopular class of people, and it’s been spectacularly easy to stoke ignorant outrage about the flaws of the justice system and to advance penal populism to garner political support. If the Conservatives gain power at the federal level, I suspect that’s exactly what we’ll see.

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Kira Davidson is the Public Legal Education Coordinator for the Centre for Constitutional Studies at the University of Alberta