Justice minister to table legislation to amend mandatory minimum sentences after Supreme Court decision

OTTAWA — The federal justice minister says an upcoming bill will propose changes to restore mandatory minimum sentences for the possession and access of child pornography recently struck down by Canada’s top court.  

In an interview, Justice Minister Sean Fraser said he supported mandatory minimum penalties for “heinous” crimes, namely those against children.  

But he said many such laws were drafted broadly and unintentionally capture situations where they may be too harsh, leaving them vulnerable to constitutional challenges.  

“There is a gap that exists today that I believe the government of Canada and Parliament needs to fill by adopting a legislative solution that would ensure that those serious cases of abuse are met with serious penalties, but does provide some opportunity for those circumstances which were not likely contemplated at the time the mandatory minimums were drafted,” he told National Post Friday.  

To that end, he said he would table a bill by the end of the year that proposes legislation to restore or ensure the constitutionality of many such penalties that have repeatedly been struck down by courts. That includes those for the possession and access of child sex abuse and exploitation material.  

“The Supreme Court of Canada has given us a set of very narrow circumstances that they have signalled would result in grossly disproportionate penalties. We are going to be advancing legislation that addresses that narrow gap that they’ve left,” he said.  

The changes will be part of a bill the minister promised in October that will better protect victims of sexual and intimate partner violence.

Fraser’s comments follow an uproar about a Supreme Court decision striking down mandatory minimum penalties for possession and access to child pornography on Oct. 31.  

The case involved a challenge to the sentencing rules brought forward by two men in Quebec who pleaded guilty to having hundreds of images of children as young as three being severely abused.  

But a five-person majority of the SCC’s nine judges struck down the minimum sentence of one year for cases that go to trial based on a different, hypothetical scenario: that of an 18-year-old offender owning nude pictures sent unsolicited by a 17-year-old victim.  

In a “plausible” case like that, the mandatory minimum sentence would amount to cruel and unusual punishment, thus making it unconstitutional.  

The decision was met with outrage from conservative politicians across the country, including Premiers Doug Ford and Danielle Smith, as well as Conservative Party leader Pierre Poilievre (who said the court’s decision was “dead wrong”).  

All three called on the federal government to restore the minimum penalties by invoking the notwithstanding clause.  

In an interview, Fraser said it was “very clear that the government needs to take action” following the decision.  

But the government has argued that invoking the notwithstanding clause is only a band-aid solution because it needs to be re-upped every five years by Parliament.  

Fraser said the legislative changes he will table in the coming weeks will not only address possession of child sex abuse material but a number of other mandatory minimum penalties the Supreme Court has struck down since 2015.  

“There are additional provisions that have been struck down by the Supreme Court of Canada that I’m concerned with and that I think the same solution could potentially apply to,” Fraser said.  

Before October’s ruling, the most recent cases came in a duo of 2023 decisions called Hills and Bertrand Marchand in which the top court found that mandatory minimum sentences for discharging a non-restricted firearm into a house and child luring were unconstitutional because there were hypothetical scenarios in which the four-year and one-year (respectively) minimum terms were excessive.  

The minister also said he wants to amend other existing mandatory minimum penalties he says are “constitutionally vulnerable” to ensure they are Charter compliant.  

In the recent decision, the Supreme Court suggested a number of solutions to ensure minimum sentences aren’t imposed in cases where they would amount to cruel and unusual punishment.  

Parliament could limit minimum sentences to specific conduct, for example, or it could “build a safety valve” allowing judges to exempt “exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment,” reads the decision.  

Fraser would not say how his bill would propose to fix legislation, nor which mandatory minimum sentences beyond those for possession and access of child pornography he wanted to amend.  

“It’s not that hard to ensure that you provide some limited amount of discretion for those sets of circumstances that the court indicated would result in grossly disproportionate penalties,” Fraser said.  

National Post

cnardi@postmedia.com

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