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Charter - s.12 Cruel and Unusual Treatment or Punishment (3). Quebec (Attorney General) v. Denis ['gross disproportionality']
In Quebec (Attorney General) v. Denis (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec CA ruling that found a mandatory minimum sentence for conviction under s.286.1(2)(a) ['Obtaining sexual services for consideration from person under 18 years'] was invalid under Charter 12 ['Treatment or punishment' (cruel and unusual)].
Here the court considers the Charter s.12 principle of 'gross disproportionality' in criminal sentence:(4) The Mandatory Minimum Sentence Is Not Grossly Disproportionate
[95] We must now assess “the extent of the disparity between [the appropriate sentence and the mandatory minimum sentence] and determin[e] whether that disparity is such that it meets the constitutional standard of gross disproportionality” (Senneville, at para. 41). This analysis must be guided by three crucial components that it is essential to consider: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (para. 44; Hills, at para. 122).
(a) Scope and Reach of the Offence
[96] The more a minimum sentence captures a broad range of conduct of widely varying gravity, the more constitutionally vulnerable it will be (Senneville, at para. 102). In Hills, the Court explained:In characterizing the offence’s scope, a court may consider whether the offence necessarily involves harm to a person or simply the risk of harm, whether there are ways of committing the offence that pose relatively little danger, and to what degree the offence’s mens rea requires an elevated degree of culpability of the offender. [para. 129] [97] It is true that this offence can be committed in various ways. For example, it captures both offenders who communicate for the purpose of obtaining sexual services from a child but who abandon their plan and offenders who actually obtain these services. In addition, the offence may be committed not in a human trafficking context, but among friends or couples, more or less impulsively. However, certain aspects of this offence place it among the offences that are “almost always serious and committed by offenders who bear a high degree of moral blameworthiness” (Hilbach, at para. 3).
[98] We have explained at length how the commission of this offence contributes to the commodification and exploitation of victims’ bodies. Even when it is committed in the context of a police sting operation, this type of offence must never be considered a “victimless” crime (Friesen, at paras. 93-94). It always represents a danger to the community, whether or not the victim actually exists.
[99] With respect to the actus reus, the offence of obtaining sexual services for consideration, at its inchoate stage, always involves the same act, regardless of the circumstances in which the act is committed. The offender communicates in some way for the purpose of obtaining sexual services from a child (that is, with a view to sexually exploiting them) for consideration. As for the mens rea, proof of a highly blameworthy intent is always required. Indeed, it requires the specific intent to knowingly subject a child to sexual abuse, all while commodifying that child as merely an object of barter.
[100] These observations help to explain why this offence, though it may be committed in a variety of circumstances, always involves an especially high level of gravity and moral blameworthiness (see also paras. 55-58 above).
(b) Effects of the Penalty on the Offender
[101] Next, the severity of the effects that the mandatory minimum sentence may have on those who are subject to it must also be taken into account in assessing the degree to which the sentence is disproportionate (Hills, at para. 133). The inquiry must focus on the harm associated with the punishment imposed on the offender, in light of the offender’s personal characteristics (paras. 133 and 135). To this end, a court must “certainly consider the additional period of imprisonment imposed by the mandatory minimum” (para. 134).
[102] It is recognized, of course, that in prison “[y]outhful offenders are . . . bullied, pressured to join adult . . . gangs, and are vulnerable to segregation placements” (Bertrand Marchand, at para. 152; see also Senneville, at para. 106). However, the proposed offender in the sixth scenario, for whom the fit sentence is five months’ incarceration, could not escape this reality in any event, even if he were able to avoid the application of the mandatory minimum sentence.
[103] The application of the six-month minimum sentence increases the proposed five-month sentence slightly. However, the additional month cannot be regarded as causing him substantially greater harm. We are a long way here from the hypothetical scenario in Bertrand Marchand, where the fit and proportionate sentence for the youthful offender was a conditional discharge (para. 130; compare also Senneville, at para. 99). In those two cases, there was a very sharp contrast between the minimum sentences of six months’ and one year’s incarceration, respectively, and a discharge. The same cannot be said here. The one-month difference in this case is not such as to shock the conscience of Canadians.
(c) The Penalty and Its Objectives
[104] This third branch of the test for gross disproportionality involves considering “whether . . . the minimum sentence goes beyond what is necessary to achieve Parliament’s sentencing objectives” (Hills, at para. 138). Where the consequences of the offence clearly transgress Canada’s code of values and call for its strong condemnation, greater deference will be owed to Parliament’s choice to introduce a mandatory minimum sentence (para. 139). However, a sentence cannot completely disregard rehabilitation, as this risks being incompatible with human dignity (paras. 141-42).
[105] Sexual offences against children strongly offend Canadians’ basic code of values, and Parliament’s objective in this regard is clear: to protect children by denouncing and deterring offenders through the imposition of severe penalties. Since 2019, this Court’s jurisprudence has been consistent: this type of offence must be punished severely in order to respect Parliament’s legitimate objective (see, e.g., Friesen, at para. 99; Bertrand Marchand, at para. 48; Senneville, at para. 34). We outlined in detail above the objective pursued by Parliament in introducing the mandatory minimum sentence at issue. Deference is owed with respect to this legitimate objective.
[106] In this case, although the six-month mandatory minimum sentence may seem severe in certain exceptional cases like the sixth scenario, it does not completely exclude the objective of rehabilitation. On the contrary, the sentence is relatively short and will allow the offender to reintegrate quickly into society. It strikes a relative balance between the objectives of deterrence and denunciation advanced by Parliament and the other penological objectives, which, though they take a back seat, are by no means excluded. . Quebec (Attorney General) v. Denis
In Quebec (Attorney General) v. Denis (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec CA ruling that found a mandatory minimum sentence for conviction under s.286.1(2)(a) ['Obtaining sexual services for consideration from person under 18 years'] was invalid under Charter 12 ['Treatment or punishment' (cruel and unusual)].
The court reviews the accepted Charter s.12 ['cruel and unusual punishment'] analysis, here in a criminal sentencing context:(1) The Legal Framework Used in Applying Section 12 of the Charter
[59] The legal framework used in applying s. 12 of the Charter is well established. It involves an analysis that proceeds in two main stages (Quebec (Attorney General) v. Senneville, 2025 SCC 33, at paras. 38-45; Bertrand Marchand, at para. 104).
[60] First, the court must determine fit and appropriate sentences for (a) the offender before it and (b) “possibly other reasonably foreseeable offenders” (Bertrand Marchand, at para. 104). It must do so without regard to the mandatory minimum sentence. For this purpose, the court must carefully adhere to the principles of sentencing, which are set out in ss. 718 et seq. Cr. C. The sentence must be tailored to the circumstances of the case and the objective gravity of the offence. It must be adjusted upwards or downwards based on the various aggravating and mitigating factors present. In determining the fit and appropriate sentence, the court must always be guided by the fundamental principle of sentencing, that is, proportionality (Hills, at paras. 56-59; s. 718.1 Cr.C.), and it must determine as specific a sentence as possible (Bertrand Marchand, at para. 122; Hills, at para. 94).
[61] Second, once the court has determined the fit and appropriate sentence or sentences (for the offender before it and for the other offenders in the proposed scenarios), it must compare them with the mandatory minimum sentence to determine whether the latter infringes s. 12 of the Charter. A sentence will infringe s. 12 if, among other things, it is so inordinately severe that it can be characterized as “grossly disproportionate” (Hills, at para. 35). The court’s analysis takes into account three factors that are “essential to consider”: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (Senneville, at para. 44; Hills, at para. 122). Failure to consider these three factors in the analysis is an error of law (see R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 18).
[62] It is important to recall that a grossly disproportionate sentence is not a sentence that is merely, or even particularly, excessive or disproportionate. Nor is it a sentence that may seem unreasonable in the eyes of some. Similarly, a sentence that a court views as demonstrably unfit will also not be grossly disproportionate. The threshold is much higher. For a mandatory minimum sentence to be characterized as grossly disproportionate, a court must conclude that it is “so excessive as to outrage standards of decency”, in other words, that it is abhorrent or intolerable and that it shocks the conscience of Canadian society (Hills, at paras. 106-15; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 24). This Court’s jurisprudence points out that this is a demanding constitutional standard that reflects a measure of deference to Parliament’s legitimate legislative choices with regard to sentencing (R. v. Hilbach, 2023 SCC 3, [2023] 1 S.C.R. 116, at para. 81; Hills, at para. 113). Courts should therefore exercise restraint in this regard and not be quick to conclude that a sentence meets the test for gross disproportionality, even if the sentence seems particularly severe or excessive. Consequently, it is only on “rare and unique occasions” that a court will find that a sentence infringes s. 12 of the Charter (Hilbach, at para. 51, quoting Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385, at p. 1417). . Quebec (Attorney General) v. Denis [mandatory minimum sentencing]
In Quebec (Attorney General) v. Denis (SCC, 2026) the Supreme Court of Canada allowed an appeal, this brought against a Quebec CA ruling that found a mandatory minimum sentence for conviction under s.286.1(2)(a) ['Obtaining sexual services for consideration from person under 18 years'] was invalid under Charter 12 ['Treatment or punishment' (cruel and unusual)].
Here the court summarizes this Supreme Court of Canada case:[1] There is no doubt that the sexual commodification of children is a veritable scourge in Canada, one that the state has every interest in suppressing and severely punishing. Indeed, any sexual offence committed against a child involves an intolerable interference with their personal autonomy and their bodily and psychological integrity.
[2] But while it is undeniable that all sexual offences committed against children necessarily entail a risk of serious bodily and psychological harm, this risk is even more pronounced in the context of the commodification of sexual activity, where the worst forms of violence, coercion and abuse are commonplace. As recognized by the preamble to the Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25, sexual commodification inherently constitutes a form of serious exploitation that causes significant societal harm and undermines human dignity and equality.
[3] The iniquitous nature of this crime becomes even more apparent when one considers that this commodification disproportionately affects people who are already among the most vulnerable in our society: young girls, and, in some provinces, young Indigenous girls in particular (I.F., Attorney General of Manitoba, at paras. 14 et seq.; R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395, at para. 2, leave to appeal refused, [2022] 1 S.C.R. vi; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 68 and 70).
[4] There is no question that offenders who help create the demand for the sexual commodification of children always have a high degree of moral blameworthiness, since they make a conscious and intentional choice to contribute to the exploitation of victims who are clearly highly vulnerable. By participating in this abhorrent practice, they undermine one of the most cherished and fundamental values of Canadian society, the protection of children (Friesen, at para. 65).
[5] As Mainella J.A. of the Manitoba Court of Appeal aptly explained, “[a]t its core, the wrongfulness of child prostitution is a denial of a child’s humanity; the sexual relationship between the exploiter and the child is one of objectification where the powerful party, the exploiter, converts the child to an object to be sexually dominated” (Alcorn, at para. 43).
[6] This appeal requires the Court to consider the constitutional validity of the mandatory minimum sentence of six months’ imprisonment for the offence of obtaining sexual services — and consequently for its inchoate offence of communicating for the purpose of obtaining sexual services — from a person under the age of 18 years for consideration,[1] a sentence provided for in s. 286.1(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”).
[7] In this case, the Quebec Court of Appeal found that the mandatory minimum sentence was a fit sentence for the respondent, Mario Denis. It nevertheless held that the sentence infringed s. 12 of the Canadian Charter of Rights and Freedoms, because it would be grossly disproportionate if imposed on the offender in one of the scenarios proposed by Mr. Denis.
[8] For the reasons that follow, we would allow the appeal of the Attorney General of Quebec, overturn para. 8 of the judgment of the Quebec Court of Appeal and set aside the declaration that the mandatory minimum sentence is constitutionally invalid. Respectfully, the Court of Appeal erred in law in finding that the sentence would be grossly disproportionate in the reasonably foreseeable scenario it considered. . Quebec (Attorney General) v. Senneville [mandatory minimum sentencing]
In Quebec (Attorney General) v. Senneville (SCC, 2025) the Supreme Court of Canada dismissed a criminal Crown sentencing appeal, this brought against a Quebec CA decision that held "the minimum sentence [SS: one year] provided for in s.163.1(4)(a) unconstitutional" ['Possession of child pornography'].
Here the court reviews mandatory minimum sentencing in the Charter s.12 ['cruel and unusual treatment'] context:A. The Two‑Stage Inquiry for Determining Whether a Mandatory Minimum Sentence Complies With Section 12 of the Charter
[38] The law surrounding the interaction between mandatory minimum sentences and s. 12 of the Charter has been the subject of much discussion in recent decisions of this Court. In order to determine whether a mandatory minimum sentence complies with s. 12 of the Charter, a two‑stage contextual and comparative analysis is required.
[39] The first stage consists in determining a fit and proportionate sentence for the offender in question “and possibly other reasonably foreseeable offenders” (Bertrand Marchand, at para. 104; see also Hills, at para. 40). This requires “careful adherence to established sentencing principles” (Bertrand Marchand, at para. 122). The analysis must therefore be carried out having regard to the sentencing objectives and principles established by the Criminal Code, whose central tenet is proportionality (s. 718.1 Cr. C.; Hills, at paras. 56‑61). This fundamental principle performs a limiting function (Hills, at para. 57; Bissonnette, at para. 51; Nasogaluak, at para. 42). It seeks to ensure that the sentence reflects — without, however, going beyond — the gravity of the offence and the moral blameworthiness of the offender (Nasogaluak, at para. 42; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37). As stated by LeBel J., “[i]n the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other” (Ipeelee, at para. 37). In this sense, “there is no proportionate sentence that only takes into account the offence and ignores the offender” (Hills, at para. 61). Judges must, at the first stage of the s. 12 analysis, exercise their discretion and determine with precision the sentence that is appropriate either for the offender before them or for an offender in a reasonably foreseeable scenario (paras. 63‑66).
[40] To properly understand the second stage of the analysis, it is important to remember that s. 12 of the Charter “is meant to protect human dignity and respect the inherent worth of individuals” (Quebec (Attorney General) v. 9147‑0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 51; see Hills, at para. 32). Human dignity cannot be respected through the imposition of a grossly disproportionate sentence, because it would have the effect of denying the intrinsic worth of the individual on whom it is imposed (see Bissonnette, at para. 59; Hills, at para. 32).
[41] The second stage of the analysis therefore requires a comparison between the sentence that was determined at the first stage and the mandatory minimum sentence. This involves assessing the extent of the disparity between these two sentences and determining whether that disparity is such that it meets the constitutional standard of gross disproportionality. It has been consistently emphasized that this standard is a particularly high bar (Lloyd, at para. 24; Bissonnette, at para. 70; Hills, at paras. 109 and 115). The comparative analysis must establish that the sentence is “so excessive as to outrage standards of decency” (Bertrand Marchand, at para. 109, quoting Hills, at para. 109). Put another way, the sentence must shock the conscience or be abhorrent or intolerable (Hills, at paras. 109‑10). This is assessed not on the basis of what a court believes to be the views of Canadian society, but rather “through the values and objectives that underlie our sentencing and Charter jurisprudence” (para. 110).
[42] To guide the courts in this comparative analysis, Hills stressed the importance of considering “three crucial components”: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (para. 122). These components were thoroughly explained by Martin J. (at paras. 122‑46) and will be applied below to the impugned minimum sentences.
[43] But before proceeding further, a clarification is warranted. My colleagues state that “once the court has selected a reasonable hypothetical scenario, the scope and reach of the offence are of little relevance” (para. 257). Respectfully, this statement is out of step with the case law of this Court noting that “[t]he scope and reach of the offence remains a major feature in the gross disproportionality analysis” (Hills, at para. 125). This principle was reiterated in Hilbach (at para. 52) and Bertrand Marchand (at para. 104) and follows from previous decisions on s. 12 of the Charter, including Lloyd (at para. 24), Nur (at para. 82) and Smith (at p. 1078).
[44] It is essential to consider these three components in the same manner to ensure that a contextual and exhaustive analysis is conducted. The first two components focus on the proportionality of the sentence; the first, relating to the scope and reach of the offence, is used to assess variations in the gravity of conduct and in the degree of culpability, while the second, relating to the effects of the penalty, is used to assess the severity of the sentence and to determine whether its “effect . . . is to inflict mental pain and suffering on an offender such that the offender’s dignity is undermined” (Hills, at para. 133). The third component consists in determining whether the sentence is excessive in light of the legislative objectives of sentencing for the offence in question, having regard to “the legitimate purposes of punishment and the adequacy of possible alternatives” (para. 138, quoting Smith, at pp. 1099‑1100). Each of these three components therefore plays a distinct and necessary role in the analysis. If little importance is given to the first component, it will not be possible to fully grasp the variations in the gravity of conduct and in the degree of culpability for the offence in question.
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VI. Conclusion
[118] For these reasons, I would dismiss the appeal. The minimum sentences set out in s. 163.1(4)(a) and (4.1)(a) of the Criminal Code are contrary to s. 12 of the Charter and are not saved by s. 1. They should be declared of no force or effect, with immediate effect, in accordance with s. 52(1) of the Constitution Act, 1982. . Quebec (Attorney General) v. Senneville [mandatory minimum sentencing]
In Quebec (Attorney General) v. Senneville (SCC, 2025) the Supreme Court of Canada dismissed a criminal Crown sentencing appeal, this brought against a Quebec CA decision that held "the minimum sentence [SS: one year] provided for in s.163.1(4)(a) unconstitutional" ['Possession of child pornography'].
Here the court summarizes the case:I. Introduction
[1] Canadian judges recognize that sentencing is a delicate exercise. Each sentence imposed is the result of an individualized process that seeks to answer the complex question: “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code?” (R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 36, quoting R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 80 (emphasis in original)). This complexity is inherent in sentencing law and is also at the heart of our jurisprudence on the right not to be subjected to any cruel and unusual treatment or punishment (s. 12 of the Canadian Charter of Rights and Freedoms). The resolution of this appeal once again requires a nuanced approach.
[2] The appellants challenge the declarations of unconstitutionality made by the majority of the Quebec Court of Appeal with respect to the mandatory minimum sentences of one year’s imprisonment provided for upon conviction for the offences of possession of child pornography (s. 163.1(4)(a) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”)) and accessing child pornography (s. 163.1(4.1)(a)).[1] Before this Court, the argument centred exclusively on the constitutionality of these minimum sentences by reference to situations other than those of the respondents.
[3] This appeal provides an opportunity to reiterate the importance of the possibility for the courts to consider reasonably foreseeable scenarios in the analysis under s. 12 of the Charter. This possibility can avoid invalid laws remaining in force indefinitely, prevent them from having indirect effects in the context of plea bargaining and promote legal certainty and real access to justice. In short, as this Court has consistently repeated, recourse to reasonably foreseeable scenarios is an essential tool for ensuring effective constitutional review.
[4] By assessing a reasonably foreseeable scenario put forward by the parties, I come to the conclusion that the minimum sentences set out in s. 163.1(4)(a) and (4.1)(a) violate the protection against cruel and unusual punishment guaranteed by s. 12 of the Charter. While the teachings of R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, are fully applicable to child pornography offences, which often warrant the imposition of severe penalties, it must be recognized that these offences can be committed in different ways, under different circumstances and by different offenders.
[5] Our case law is categorical: a mandatory minimum sentence does not necessarily violate s. 12 of the Charter (R. v. Hills, 2023 SCC 2, at para. 38; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1077). However, when the application of a mandatory minimum sentence is broad and covers a wide range of circumstances, the sentence is “constitutionally vulnerable” (R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 3; R. v. Hilbach, 2023 SCC 3, at para. 52) because it leaves no choice but to impose a grossly disproportionate sentence on certain offenders.
[6] A thorough analysis reveals that this is the case for the mandatory minimum sentences contested in this appeal. The offences with which they are associated cover a very wide range of circumstances. They capture both the well‑organized offender who, over the years, has accumulated thousands of files showing prepubescent victims, and the young 18‑year‑old offender who, one day, keeps and views a file showing a 17‑year‑old victim that was sent to the offender without them having requested it.
[7] This last reasonably foreseeable scenario was at the centre of the debate before this Court. The facts of this scenario “are . . . captured by the minimum conduct caught by” (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 68; Hills, at paras. 79‑80 and 83) the offences of possession of child pornography and accessing child pornography. In the age of digital communication, this scenario is not uncommon, and no aspect of our jurisprudence justifies excluding it for the purposes of the analysis under s. 12 of the Charter. In light of the principles of sentencing, the appropriate sentence for such an offender could be a conditional discharge. The disparity between this non‑carceral penalty and the mandatory minimum sentences of one year’s imprisonment easily meets the constitutional standard of gross disproportionality. The impugned minimum sentences thus violate s. 12 of the Charter, and the appellants did not argue that they can be saved by s. 1. The appeal should therefore be dismissed.
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