What the backlash gets wrong about Quebec (Attorney General) v Senneville
Matthew Farrell, Volume 84 Executive Director, Forum Conveniens
In this post, I will discuss the backlash and commentary surrounding the Supreme Court of Canada’s recent decision in Quebec (Attorney General) v Senneville, where it overturned mandatory minimums for the possession of child pornography. The backlash towards Senneville both misses the importance of the doctrine of reasonable hypotheticals in protecting the rule of law and overemphasizes the extent to which the doctrine erodes Parliamentary authority.
Before delving in, I would like to situate this piece in the current political climate surrounding criminal law. Right now, the Canadian population is undeniably tough on crime. Prior to a historic swing in polling, the Conservative Party of Canada nearly won this year’s election while advocating for draconian “three-strikes” laws and using the notwithstanding clause to revive unconstitutional and grossly disproportionate sentences. Since taking power, the governing Liberals have also ratcheted up pressure on defendants in criminal cases. The Bail and Sentencing Reform Act would reverse the burden of proof for many people (who are presumed innocent) seeking bail and toughen sentences upon conviction. Each party is responding to the public perception that crime is getting worse and that the government is not doing enough to deal with it.
One could write hundreds of pages as to why—or, in my view, why we should not—give in to the public pressure surrounding harsher sentences. For me, the view that tougher sentences decrease crime is short-sighted when a growing body of research suggests that mandatory minimums do not reduce crime in the long term and, in many cases, actually increase recidivism. Doob, Webster, and Gartner write that “crime is not deterred, generally, by harsher sentences. This is not, of course, a new conclusion.” Nonetheless, it is easier for politicians to scaremonger about crime in the short term than create long-term policy to stop it.
The backlash towards the Supreme Court’s recent decision in Senneville illustrates the reactionary pressure towards harsher sentences. In Senneville, a 5–4 Court struck down the mandatory minimum of a one-year sentence for possession of child pornography under subsections 163.1(4)(a) and (4.1)(a) of the Criminal Code. The decision was based solely on the logic that a reasonable hypothetical offender––an 18-year-old who receives an image of a friend’s 17-year-old girlfriend and keeps it––would not be deserving of the one-year mandatory minimum.
Many members of civil society have been unhappy with the Court’s decision, to say the least. Several premiers and the federal Leader of the Opposition support the use of the notwithstanding clause to reinstate the mandatory minimum. Pierre Poilievre called the Senneville decision “wrong-headed.” This pushback has also come from legal and political commentators. One piece by Kerry Sun, a lawyer and legal academic, argues that “the backlash [to Senneville] has been swift and justly deserved.” The article, provocatively titled “Supreme Court has no right to soften child porn laws,” argues against the use of reasonable hypotheticals to strike down mandatory minimums. Howard Anglin, current doctoral student and former Deputy Chief of Staff to Prime Minister Stephen Harper, argues that we should not “toss out a perfectly reasonable law on an imaginary technicality.”
Given the fearmongering around reasonable hypotheticals, it is worth taking a moment to discuss what the doctrine of reasonable hypotheticals does and does not do. I will begin with what it does do. Reasonable hypotheticals allow courts to consider circumstances beyond the offender in front of them when deciding whether a mandatory minimum sentence is grossly disproportionate. The logic behind this is that we should not have to wait for an actual offender to appear before the court to strike down a rule that offends our basic constitutional principles. It would be naïve to assume that every person convicted of an offence in every corner of the country has the resources to challenge their sentence. Therefore, the rule of law demands that courts can reject unconstitutional laws before they sentence someone undeservedly.
Despite this important purpose, the operation of reasonable hypotheticals is sensibly constrained. According to the Supreme Court in R v Hills, the following conditions apply:
(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.
When read together, these five points put non-trivial restrictions upon the use of reasonable hypotheticals. Courts are not allowed to use “fanciful, outlandish, far‑fetched, merely speculative or marginally imaginable” hypotheticals. This excludes hypotheticals with situations or personal characteristics unlikely to be seen in previously reported cases. Otherwise, the Court in Hills keeps the consideration of reasonable hypotheticals fairly open. For the sake of illustration, here are a few examples of when reasonable hypotheticals have been used:
- In R v Nur, the Supreme Court used the hypothetical of a licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, mistaking where it can be stored, to find that the three- and five-year mandatory minimum sentences imposed for possessing loaded prohibited firearms under subsections 95(2)(a)(i) and (ii) of the Criminal Code were unconstitutional. The Court reasoned that this hypothetical offender would not be deserving of a three-year sentence.
- In R v Hills, the Supreme Court considered a hypothetical young offender who fires an air-powered rifle at a home, which would not perforate the wall of a typical residence, to find that the four-year mandatory minimum for recklessly and intentionally discharging a firearm into or at a place under subsection 244.2(3)(b) of the Criminal Code was unconstitutional. The Court reasoned that this hypothetical offender would not be deserving of a four-year sentence.
The commentators I mentioned disagree with the arguments in favour of reasonable hypotheticals. Mr. Sun claims that the doctrine of reasonable hypotheticals is part of an “ongoing encroachment” on Parliament’s authority to set criminal punishments; it should be Parliament, not the courts, deciding what sentences are proportionate to the crime committed.
However, Mr. Sun also argues that “[should] a genuine case arise where a mandatory minimum might constitute ‘cruel and unusual punishment,’ the courts should consider then and there whether the sentencing law captures the offender and whether an exemption might be granted.” In other words, Mr. Sun accepts that a court may overrule Parliament’s judgment as to the mandatory minimum punishment for a crime but believes the court should wait to do so until the case arises before them. In practice, this leaves unsophisticated offenders, or those without access to consistent lawyers, without remedy. Not everyone can fight a long, constitutional battle which possibly ends up at the Supreme Court.
This brings me to discuss what the Senneville decision does not do. Critically, it did not change the sentence for the offender before the court. Mr. Senneville received the same sentence he would have received if the mandatory minimum had remained in effect. This makes sense; criminal sentencing is about proportionality, so if a crime (like the possession of child porn) is really that bad, sentences generally will be as well.
Indeed, Parliament has many other means to signal its view on proportionate sentences for particular crimes, and courts listen. For example, Parliament may impose rules like section 718.01 of the Criminal Code:
When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
In R v Friesen, the Supreme Court of Canada interpreted this rule as generally raising the sentences for offences involving the abuse of children. Since then, Parliament has instituted similar rules prioritizing denunciation and deterrence for offenders guilty of crimes involving the assault of peace officers (section 718.02), certain animals (section 718.03) and vulnerable persons, including Indigenous women (section 718.04).
In other words, even if we (in my view, erroneously) view denunciation and deterrence as effective ways of solving the social problem of crime, there are other ways of prioritizing these principles than mandatory minimums. Removing mandatory minimums does not disable Parliament or erode its sovereignty; it simply pushes Parliament to consider constitutional alternatives to laws that impose disproportionate sentences on reasonably likely defendants.
So no, Mr. Sun, the doctrine of reasonable hypotheticals does not require Parliament “to do the impossible, namely, anticipate and devise solutions for all manner of hypothetical scenarios in crafting a mandatory minimum sentence.” Maybe, it simply requires Parliament to not risk imposing grossly disproportionate sentences on those without the resources to fight back.