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Charter - Evidence - 'Reasonably Foreseeable Scenarios' (formerly 'Hypotheticals'). Quebec (Attorney General) v. Senneville
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. . Quebec (Attorney General) v. Senneville
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 the Charter evidence law of 'reasonably foreseeable scenarios' [formerly called 'reasonable hypotheticals']:B. The Use of Reasonably Foreseeable Scenarios
(1) The Importance of Effective Constitutional Review
[46] The possibility of using reasonably foreseeable scenarios in the analysis under s. 12 of the Charter is essential to the rule of law. When a mandatory minimum sentence is challenged on the basis that it is unconstitutional because of its effects on third parties, the proceedings take on a dimension that extends beyond the interests of the offender concerned: it is then “the nature of the law, not the status of the accused, that is in issue” (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 314, quoted in Nur, at para. 51). Section 52 of the Constitution Act, 1982 does not create a personal remedy: a person can challenge the validity of a legislative provision even if their own rights have not been violated (Nur, at para. 51, quoting Big M Drug Mart Ltd., at p. 314; R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154; R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761; R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 58‑66; see also Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at para. 96; P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 59:6). Thus, “[a] claimant who otherwise has standing can generally seek a declaration of invalidity under s. 52 on the grounds that a law has unconstitutional effects either in his own case or on third parties” (Ferguson, at para. 59, citing Big M, P. Sankoff, “Constitutional Exemptions: Myth or Reality?” (1999‑2000), 11 N.J.C.L. 411, at pp. 432‑34, and M. Rosenberg and S. Perrault, “Ifs and Buts in Charter Adjudication: The Unruly Emergence of Constitutional Exemptions in Canada” (2002), 16 S.C.L.R. (2d) 375, at pp. 380‑82).
[47] Without recourse to reasonably foreseeable scenarios, the judiciary’s capacity to ensure effective constitutional review would be undermined. Among other things, “bad laws might remain on the books indefinitely” (Nur, at para. 51), exposing each and every individual to the consequences of the application of unconstitutional laws. Yet the rule of law requires, inter alia, that no one “be sentenced under an invalid statute” (Lloyd, at para. 16; see also Hills, at para. 73). These principles were vigorously affirmed by McLachlin C.J. in Nur:Refusing to consider reasonably foreseeable impacts of an impugned law would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order. The protection of individuals’ rights demands constitutional review that looks not only to the situation of the offender before the court, but beyond that to the reasonably foreseeable reach of the law. Testing the law against reasonably foreseeable applications will prevent people from suffering cruel and unusual punishment in the interim until the mandatory minimum is found to be unconstitutional in a particular case.
Refusing to consider an impugned law’s impact on third parties would also undermine the prospect of bringing certainty to the constitutionality of legislation, condemning constitutional jurisprudence to a wilderness of single instances. Citizens, the police and government are entitled — and indeed obliged — to know what the criminal law is and whether it is constitutional. Looking at whether the mandatory minimum has an unconstitutional impact on others avoids the chilling effect of unconstitutional laws remaining on the statute books. [Emphasis added; paras. 63‑64.] [48] The position adopted by this Court reflects the principle that the rule of law, enshrined in s. 52(1) of the Constitution Act, 1982, cannot depend on the expectation that each individual faced with an unconstitutional law will have the resources or the will needed to challenge its validity. This position also promotes certainty and avoids “impair[ing] the right of citizens to know what the law is in advance and govern their conduct accordingly — a fundamental tenet of the rule of law” (Ferguson, at para. 72; see also R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, at para. 71). However, beyond the rule of law, constitutional certainty for all, “independent of one’s ability to bring a legal proceeding, is paramount to the Charter” and is essential to ensure true access to justice (P. Daly et al., “The Effect of Declarations of Unconstitutionality in Canada” (2022), 42 N.J.C.L. 25, at p. 44). The Court has repeatedly emphasized the inextricable link between the rule of law and access to justice (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, at para. 39). Neither principle can exist without the other, as otherwise “the rule of law is replaced by a rule of men and women who decide who shall and who shall not have access to justice” (B.C.G.E.U. v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214, at p. 230). The use of reasonably foreseeable scenarios is therefore indispensable to effective constitutional review, because the objective is to ensure that it applies to all citizens, and not only to the person in a position to challenge the validity of a law.
[49] This is especially so given that the presence of unconstitutional minimum sentences can influence the dynamics of plea bargaining. There can be an “almost irresistible” incentive for an accused to enter a guilty plea in order to avoid a long mandatory minimum sentence (Nur, at para. 96). For this reason, these sentences “[are] shaping outcomes in ways that are not only insulated from judicial review but entirely invisible to the court” (L. Kerr and M. Perlin, “A New Justification for Section 12 Hypotheticals and Two Rules for Constructing Them” (2025), 5 S.C.L.R. (3d) 179, at p. 191). This additional observation illustrates the importance of using reasonably foreseeable scenarios to assess the constitutionality of mandatory minimum sentences “rather than leaving them on the books” (p. 192).
[50] Our case law also seeks to prevent a multiplicity of identical legal challenges within the same jurisdiction, an objective that encourages the effective use of judicial resources (Hills, at para. 73). When a court empowered to make formal declarations of inoperability under s. 52(1) of the Constitution Act, 1982 (see Lloyd, at para. 15) declares that a minimum sentence is unconstitutional, “[t]he doctrine of stare decisis extends the effect of that judgment beyond the parties to the case, erga omnes within the province at least — subject to the limits of the doctrine itself” (Sullivan, at para. 55). It follows that, as Vauclair J.A. noted in Griffith v. R., 2023 QCCA 301, when a court empowered to make such a declaration [translation] “can rule on the constitutionality of a mandatory minimum sentence, it should do so, since declining to decide an issue ‘would . . . cost other courts and justice system participants additional resources in the longer term’” (para. 64, quoting R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 24 (emphasis in original deleted), and citing Hills, at para. 73; see also R. v. E.O., 2019 YKCA 9, 374 C.C.C. (3d) 338, at para. 38).
[51] In short, Nur confirmed the importance of reasonably foreseeable scenarios in the s. 12 analysis. It unequivocally rejected “the argument that reasonable hypotheticals should be abandoned and that the primary or exclusive focus ought to be on the offender before the court” (Hills, at para. 71, citing Nur, at paras. 48‑64, and C. Fehr, “Tying Down the Tracks: Severity, Method, and the Text of Section 12 of the Charter” (2021), 25 Can. Crim. L.R. 235, at p. 240). Hills affirmed this principle. Bertrand Marchand is the most recent reiteration of this.
[52] In this appeal, neither the parties nor the courts below called into question the use of reasonably foreseeable scenarios in the s. 12 analysis. Yet my colleagues, like Ruel J.A., propose an interpretation of the law that would have the effect of considerably limiting their use. As I will explain, in my respectful view, this approach is not consistent with the jurisprudence of this Court.
(2) Clarifying the Terminology
[53] The terms “scenario” and “hypothetical” have been used interchangeably by this Court.
[54] I suggest giving preference to the expression “reasonably foreseeable scenario”. Even though the term “hypothetical” is not in itself erroneous, setting it aside could better reflect the idea that the exercise involves determining “the reasonable reach of a law[, which] is essentially a question of statutory interpretation” (Nur, at para. 61; see also R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at paras. 170‑71, per Karakatsanis J., concurring). The identification of a reasonably foreseeable scenario must never turn into fanciful speculation. It must instead result from a meticulous interpretative exercise that is grounded in “judicial experience and common sense” (Nur, at para. 62).
(3) The Characteristics of a Reasonably Foreseeable Scenario
[55] When the analysis is conducted with the assistance of a situation other than that of the offender challenging the constitutionality of a minimum sentence, it can be difficult to decide on a particular scenario. Useful guidance has, however, been provided by this Court:(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.
(Hills, at para. 77) [56] Given the view of the law proposed by my colleagues, it appears necessary to review the way in which our case law has characterized what constitutes a reasonably foreseeable scenario. In the context of an analysis under s. 12 of the Charter, the term “scenario” encompasses both the circumstances of the commission of the offence and the personal characteristics of the accused. These two elements must be reasonably foreseeable. I will examine each of them in turn.
(a) The Circumstances of the Offence Must Be Reasonably Foreseeable
[57] It must be established that the circumstances of the offence under consideration “are . . . captured by the minimum conduct caught by the offence” (Nur, at para. 68; see also Hills, at paras. 79‑80 and 83). The range of conduct caught by the offence with which the minimum sentence is associated is determinative, because it is permissible to identify circumstances of the commission of the offence that are at the low end of the gravity scale and that, accordingly, “test” the constitutionality of the minimum sentence associated with it (Hills, at para. 82; Nur, at para. 103). The circumstances underlying the scenario identified will not be reasonably foreseeable if they are fanciful, outlandish, far‑fetched, merely speculative or marginally imaginable (R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, at p. 505‑6; Nur, at para. 54; Hills, at paras. 78, 83 and 92). All of these qualifiers used over the years call upon the ability of judges to interpret the law and to assess the scope of an offence using their common sense and judicial experience (Nur, at para. 62).
[58] From this perspective, the consideration of reported cases often proves useful, because they “illustrate the range of real‑life conduct captured by the offence. . . . Not only is the situation in a reported case reasonably foreseeable, it has happened” (Nur, at para. 72; see also Hills, at para. 81). The best way to distinguish the circumstances of the commission of the offence that are reasonable from those that are not is to look to the virtues of the adversarial process (Hills, at para. 93). The parties’ submissions also ensure that the process is fair and transparent (ibid.). When the Crown and the defence agree on the foreseeable scenario the court should use to undertake the analysis, this is a strong indication that the foreseeable scenario is reasonable.
(b) The Representative Offender Must Have Personal Characteristics That Are Reasonably Foreseeable
[59] In keeping with Nur, Lloyd and R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, Hills confirmed that “characteristics that are reasonably foreseeable for offenders in Canadian courtrooms, like age, poverty, race, Indigeneity, mental health issues and addiction, should not be excluded from consideration” (para. 86; see also paras. 87 et seq.). This position logically follows from the cardinal principle of proportionality (s. 718.1 Cr. C.). It makes it imperative to take into account both the gravity of the offence and the moral blameworthiness of the offender, which is determined, among other things, on the basis of the offender’s particular circumstances (Hills, at para. 86, citing Nasogaluak, at para. 42, and Ipeelee, at para. 38). For the purposes of the s. 12 analysis, it would be completely artificial — and contrary to sentencing law — to ignore the fact that persons who commit crimes have different personal characteristics that may cause their degree of moral blameworthiness to vary, in particular because of their disadvantaged circumstances, including marginalization or systemic discrimination (Hills, at paras. 89‑90).
[60] That being said, the personal characteristics used for the s. 12 analysis must “present a reasonably foreseeable offender” (Hills, at para. 91 (emphasis deleted), citing Nur, at para. 75). This is an important limit that prohibits the selection of an offender who would be “the most . . . sympathetic . . . imaginable” (Nur, at para. 75). In all cases, the exercise is grounded in the common sense and experience (paras. 62 and 75; Hills, at para. 92) of judges, who are familiar with the wide range of offender profiles they encounter in their courtroom on a daily basis. The exercise may be facilitated by the use of reported decisions and the submissions of counsel. At paras 61-80 the court continues to justify it's use of 'reasonably foreseeable scenarios' in this case, including parallels with recent jurisprudence.(d) The Expression “Extreme Examples”
[81] My colleagues also observe that certain foreseeable scenarios cannot be reasonable because they constitute examples that are “too extreme” (para. 219). They propose, among other things, to exclude the scenarios described in John and R. v. Delage, 2019 QCCQ 1125, because they are, in their opinion, extreme, in addition to being remote, as separate criteria. In light of the foregoing, I do not see how this meaning can be attributed to the expression “on the basis of remote or extreme examples” (Goltz, at pp. 515‑16). As indicated earlier, central to this expression is the notion that a reasonably foreseeable scenario must consist of imaginable circumstances and cannot be far‑fetched. The word “extreme” is used to better underscore this notion. My colleagues also do not explain how these scenarios are extreme and simply state, in the case of the scenario taken from John, that it “is meant to be ‘the most . . . sympathetic . . . imaginable’” (para. 229, quoting Nur, at para. 75; Hills, at para. 91; Hilbach, at paras. 88‑89). However, far from being far‑fetched, this scenario simply illustrates the lower end of the scale of conduct that may be caught by the offence, which is essential in assessing the constitutionality of the mandatory minimum sentence. Furthermore, the principle that all reported cases, such as Delage, can be considered reasonably foreseeable scenarios is well established (Hills, at para. 81; Nur, at para. 72). The logic lies in the fact that these cases actually happened and therefore necessarily show the range of real‑life conduct captured by the offence even if they “represent an uncommon application of the offence” (Nur, at para. 72). . R. v. Kloubakov
In R. v. Kloubakov (SCC, 2025) the Supreme Court of Canada dismissed a criminal appeal, this from an Alberta CA ruling that allowed a Crown appeal against an Alberta QB decision in which "the trial judge held that these offences [SS: 'receiving a material benefit from sexual services and of procuring': CCC 286.2 and 286.3] prohibited the safety measures contemplated in Bedford [SS: Canada (Attorney General) v. Bedford (SCC, 2013)] and therefore infringed s. 7 of the Charter".
Here the court confirms the allowable use of 'reasonable hypotheticals' in evidence in Charter cases:[143] ... As this Court has recognized, it is “established that a court may consider ‘reasonable hypotheticals’ to determine whether a law is consistent with the Charter”, including under s. 7 (Appulonappa, at para. 28; see also D. M. Haak, “The Case of the Reasonable Hypothetical Sex Worker” (2022), 60 Alta. L. Rev. 205, at pp. 211-13). .... . R. v. Brar
In R. v. Brar (Ont CA, 2024) the Ontario Court of Appeal illustrates examples of the evidentiary use of 'reasonable hypotheticals' in Charter challenges, here in a failed challenge to the CCC 232 'provocation' murder defence:[82] The absence of any disconnect is apparent on an examination of the hypotheticals considered in Simard, Mujber, and Fredette, and relied on by the appellants.
[83] One hypothetical supposes a woman who has been abused by her male partner for many years. She responds to taunts and slurs by stabbing him. According to this scenario, the woman who has been abused for years does not fear for her safety when taunted, but instead responds to “protect her dignity.”
[84] It is difficult to imagine that a woman who has regularly been the victim of physical abuse by her partner over many years would not have a legitimate fear of physical violence when being subjected to her husband’s verbal abuse. The husband’s conduct would in all likelihood constitute a threat to cause bodily harm and, therefore, an indictable offence punishable by five years or more: Criminal Code, s. 264.1(1)(a).
[85] Even if one were to accept the hypothetical as reasonable and assume that there was no perceived threat, the denial of a provocation defence in the absence of any perceived threat is consistent with the purpose of the amended s. 232(2). Attacks upon one’s dignity, which do not amount to a serious indictable offence, are incapable of providing a partial excuse for murder.
[86] The second hypothetical involves a homicide triggered by racial or religious slurs. Accepting, as we do, that the purpose of the amendment to s. 232(2) is to eliminate non-criminal conduct as a trigger for provocation, the denial of a provocation defence in circumstances like those posited in the second hypothetical is entirely consistent with the purpose of the legislation. . R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal noted a Charter strike-down of the mandatory minimum sentence for 'sexual interference', here referencing the relatively new Charter evidentiary of 'reasonable hypotheticals':[54] In R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, this court struck down the mandatory minimum sentence of 12 months’ imprisonment for sexual interference as it constituted cruel and unusual punishment under s. 12 of the Charter. This decision was based on reasonable hypotheticals posited by appellate courts across Canada: see e.g., Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400.
[55] For example, in B.J.T., at para. 73, this court referred to the hypothetical proposed in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, an analogous case to the one on appeal:In Scofield, the B.C.C.A. postulated a hypothetical where two young people meet at a party; one is almost 16, while the other recently turned 21… The two people drink alcohol and smoke marijuana, reducing their inhibitions. They go to a private bedroom where they engage in some kissing and brief sexual touching over their clothing for ten minutes. They act willingly and know each other’s ages. Neither has a criminal record. Harris J.A. concluded that a one-year sentence for that conduct would be grossly disproportionate to a proportionate sentence which would not necessarily involve imprisonment or even a conditional sentence. He also added that if the 21-year-old had a disability that reduced his moral culpability or if Gladue factors applied, … those two characteristics of the offender could make the mandatory minimum sentence more disproportionate.
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