The Supreme Court of Canada has ruled that the one-year mandatory minimum jail sentences for possessing or accessing child pornography are unconstitutional, upholding a Quebec Court of Appeal decision and restoring full judicial discretion in such cases.In a 5–4 decision released Friday, the court dismissed the Crown’s appeal in 2025 SCC 33 (File No. 40882). .Writing for Justices Karakatsanis, Martin, Kasirer and Jamal, Justice Michelle Moreau held that the one-year minimums in Criminal Code s. 163.1(4)(a) (possession) and s. 163.1(4.1)(a) (accessing) breach s. 12 of the Charter (cruel and unusual punishment) and are not saved by s. 1. The provisions are therefore of no force or effect under s. 52(1) of the Constitution Act, 1982.The majority reaffirmed the two-stage test for mandatory minimums: determine a fit, proportionate sentence for the offender or a reasonably foreseeable offender, then ask whether the statutory minimum would be grossly disproportionate. Three factors guide the analysis: 1) the scope of the offence, 2) the effects of the penalty on the offender, 3) the penalty’s objectives.Central to the ruling was a reasonably foreseeable scenario: an 18-year-old receives on his phone a nude image (a sext) of a 17-year-old, keeps it briefly knowing it meets the legal definition of child pornography, and looks at it. For that low-end conduct, the majority said a conditional discharge with strict probation could be fit; a mandatory one-year jail term would be grossly disproportionate. The court stressed that reasonably foreseeable hypotheticals are an essential tool for constitutional review and need not be common, so long as they are not fanciful or far-fetched.The majority also noted that possession and access offences capture a wide range of conduct and that the crimes are hybrid offences, supporting the conclusion that a fixed one-year jail floor overreaches Parliament’s objectives of denunciation and deterrence by eliminating tailored, non-custodial options in appropriate cases..The decision sparked strong political backlash from the federal Conservatives. Larry Brock, Conservative Shadow Minister for Justice and Attorney General of Canada, called the ruling “a disgusting and cruel insult to victims of these heinous crimes.”“It is especially egregious given the two cases involved,” Brock said in a statement. “One of the offenders had 317 images of children, with 90% being of girls between the ages of three and six. The other had 531 images and 274 videos for over a year, most of which involved children from five to ten years old.”“These vile predators caused unimaginable suffering and harm to hundreds of victims, some as young as three. Any normal person who reads this decision would be disgusted, and it is outrageous that child predators might walk free with less than a year in prison.”Brock said the Conservatives originally introduced the mandatory minimums to toughen sentences for child sexual abuse material and urged the federal government to act quickly in response to the court’s ruling.“The Liberals must lay out a clear plan for how they will ensure that those charged with these despicable crimes are kept behind bars,” he said. “Conservatives will always fight for the strongest laws to protect the most vulnerable in our society. We offer our full assistance to the government in Parliament to swiftly fix this travesty.”.Chief Justice Wagner and Justices Côté, Rowe and O’Bonsawin would have allowed the appeal, finding the minimums constitutional. Emphasizing the gravity and societal harm of sexual offences against minors and the guidance in R. v. Friesen (2020), the dissent said denunciation and deterrence should predominate and that the gross-disproportionality bar is demanding, requiring a sentence so excessive that it shocks the conscience.They criticized the use of hypotheticals they viewed as having only a remote connection to the cases before the courts, warning that far-fetched scenarios can undermine public confidence in sentencing for child-protection crimes..The appeal arose from two Quebec matters in which the accused pleaded guilty to child-pornography counts. At sentencing, they challenged the constitutionality of the one-year minimums. The trial judge found the minimums grossly disproportionate as applied; the Quebec Court of Appeal agreed that the provisions were unconstitutional based on their reasonably foreseeable application to other offenders. The Attorney General of Quebec and His Majesty the King appealed to the Supreme Court; the Crown did not pursue a s. 1 justification..What changes nowThe one-year mandatory minimums for possession and accessing child pornography under s. 163.1(4)(a) and (4.1)(a) are struck down nationally.Judges retain discretion to impose sentences that are proportionate to the offence and the offender, including non-custodial outcomes in exceptional, low-end cases.The court reaffirmed that while mandatory minimums are not per se unconstitutional, broad minimums that capture low-culpability conduct remain constitutionally vulnerable.
