Child Pornography: The Mandatory Minimum and the Senneville Decision

Criminal Law

The basis of the offences and of the mandatory minimum

Section 163.1 of the Criminal Code creates four distinct child pornography offences: making, distributing, possessing and accessing. Since October 10, 2025, the Criminal Code uses the expression « child sexual abuse and exploitation material » rather than « child pornography, » a change in terminology that does not alter the scope of the offences but is meant as a reminder that this material is in no way consensual and is neither entertainment nor art. Because Senneville was argued under the former terminology, that terminology is kept in this article.

Possession, under subsection 163.1(4), consists of knowingly acquiring the files that contain the images and keeping them in a place under one’s control, knowledge and control being the essential elements (R. v. Morelli, 2010 SCC 8). Accessing, under subsection 163.1(4.1), covers anyone who « knowingly causes child pornography to be viewed by, or transmitted to, himself or herself. » These are two distinct crimes: viewing images online without downloading them is accessing, but not necessarily possession.

Both are hybrid offences, meaning that the prosecution chooses to proceed by indictment or by summary conviction, and the sentence varies with that choice. The text of subsections 163.1(4) and (4.1) provides, for each of the two offences, that the offender is guilty of:

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

This mandatory minimum has not always existed. As the Supreme Court recalls, Parliament first introduced a 45-day minimum in 2005, raised it to six months in 2012, then doubled it in 2015 to set it at one year, while raising the maximum sentence from five to ten years (para. 109). The aim was to put an end to the possibility of non-custodial sentences for these crimes and to give primacy to the objectives of denunciation and deterrence. It is this one-year minimum, applicable when the offence is prosecuted by indictment, that was challenged in Senneville.

The test for striking down a sentence under section 12 of the Charter

Section 12 of the Canadian Charter of Rights and Freedoms provides that « everyone has the right not to be subjected to any cruel and unusual treatment or punishment. » This guarantee protects human dignity: a grossly disproportionate sentence denies the intrinsic worth of the person who receives it (para. 40). A mandatory minimum sentence is not, however, contrary to the Charter in itself. Parliament may enact them, as the Supreme Court recalled in the opening lines of Senneville:

[5] Our jurisprudence is categorical: a mandatory minimum sentence does not necessarily infringe s. 12 of the Charter […]. However, where the scope of a mandatory minimum sentence is broad and covers a wide range of circumstances, it is « constitutionally vulnerable » […], since it leaves no choice but to impose a grossly disproportionate sentence on some offenders. [Our translation]

To determine whether a mandatory minimum crosses the constitutional line, the courts follow a two-step analysis established in R. v. Nur, 2015 SCC 15, R. v. Hills, 2023 SCC 2 and R. v. Bertrand Marchand, 2023 SCC 26, and reiterated in Senneville (paras. 38 to 42).

The first step is to determine what a fit and proportionate sentence would be for the offender, applying the ordinary sentencing objectives and principles set out in sections 718 and following of the Criminal Code, whose central tenet is proportionality. The judge must fix that sentence precisely, as if no mandatory minimum existed. This fit sentence may be determined for the offender before the court, but also for a representative offender in a « reasonably foreseeable situation, » that is, a situation that could plausibly come before the courts, even if it differs from the case at hand.

The second step is to compare that fit sentence with the mandatory minimum:

[41] […] The question is one of assessing the extent of the disparity between the two sentences and determining whether that disparity is such that it reaches the constitutional standard of gross disproportionality. It has consistently been emphasized that this standard is particularly demanding […]. The comparative analysis must establish that the sentence is « so excessive as to outrage standards of decency » […]. In other words, the sentence must shock the conscience or be abhorrent or intolerable […]. [Our translation]

A sentence that is merely excessive or unfit is therefore not enough: there must be gross disproportionality. To guide this comparison, the Supreme Court relies on three crucial elements (para. 42): the scope and reach of the offence, the effects of the penalty on the offender, and the penalty itself, including the balance struck by its objectives. The table below summarizes the approach:

The reasonably foreseeable situation

The use of reasonably foreseeable situations is at the heart of this analysis. It allows the courts to review the law itself, and not only its application to the offender challenging it, so that invalid laws do not remain in force until a litigant has the resources to challenge them (paras. 46 to 48). A reasonably foreseeable situation must meet two requirements: the circumstances of the offence must fall « within the minimum conduct caught by the offence, » and the representative offender must have reasonably foreseeable personal characteristics, such as age, poverty, mental health problems or addiction (paras. 57 and 59). Situations that are « fanciful, far-fetched, implausible, purely speculative or hard to imagine » are excluded (para. 57). Real cases reported in the case law are reasonably foreseeable situations par excellence, since they actually occurred (paras. 58 and 81).

The majority of the Court also settled a question that had divided the judges of the Court of Appeal: a reasonably foreseeable situation need not resemble the facts of the case at hand.

[75] In short, there is no criterion in the s. 12 analysis based on the factual proximity of the reasonably foreseeable situation to the case at hand. [Our translation]

A mandatory minimum is not unconstitutional because it is severe, but because it forces the judge, in some foreseeable cases, to impose a sentence that shocks the conscience

Senneville: possessing and accessing child pornography before the Supreme Court

Louis-Pier Senneville, a 28-year-old former soldier with no criminal record, pleaded guilty to one count of possessing and one count of accessing child pornography. He had 475 files in his possession, including 317 images that met the definition of child pornography, the great majority depicting children aged 3 to 6. Mathieu Naud, in his thirties and also without a record, pleaded guilty to one count of possession and one count of distribution, having possessed for 13 months 531 images and 274 videos depicting children aged 5 to 10 (paras. 9 and 10). Both men challenged the constitutionality of the one-year mandatory minimum.

The Court of Québec judge ruled in favour of each of them by looking solely at their personal situations: he found that the fit sentence was 90 days of intermittent imprisonment for Mr. Senneville and nine months for Mr. Naud, and declared the mandatory minimum of no force or effect as against them (paras. 12 and 13). A majority of the Quebec Court of Appeal concluded that the minimum violated section 12 because of its foreseeable application to other offenders, while substituting a one-year prison term for Mr. Senneville’s sentence, which it found demonstrably unfit given the nature of the images (paras. 16 and 18). Before the Supreme Court, the debate concerned exclusively the validity of the mandatory minimum in situations other than those of the respondents: it was no longer disputed that the minimum was not grossly disproportionate for Mr. Senneville and Mr. Naud themselves (para. 82).

The Court adopted the reasonably foreseeable situation drawn from R. v. John, 2018 ONCA 702, which the Attorney General of Quebec had himself acknowledged at the hearing to be reasonably foreseeable (para. 87):

[83] […] An 18-year-old receives on his cellphone, from a friend of the same age, a « sext » from the friend’s girlfriend, who is 17. The « sext » in question is a photograph of that 17-year-old that meets the definition of child pornography (s. 163.1(1) Cr. C.). The 18-year-old decides to keep the image on his cellphone. [Our translation]

The Court specified that this representative offender looked at the photograph briefly, knowing it was child pornography, and that he has no criminal record (para. 84). He therefore committed both the crime of possession and the crime of accessing. In the digital communication era, such a situation is « in no way unusual » (para. 7), the phenomenon of teenage sexting being well documented (para. 86).

At the first step, without minimizing the harm caused by child pornography, the Court held that the representative offender’s conduct falls at the low end of the scale of gravity: a single image, a victim one year younger than him, a photo received without asking for it, a young age and no criminal record (para. 88). The Attorney General argued that a term of actual imprisonment was nonetheless required, without specifying its length, a position the Court described as « perplexing » (para. 89). It concluded instead as follows:

[99] Although they are serious and deserve to be denounced, the acts committed by the representative offender fall at the very bottom of the scale of gravity for the crimes of accessing and possessing child pornography. Moreover, his young age and lack of a criminal record call for restraint. In these circumstances, the appropriate sentence for the representative offender may be of the same order as the one adopted in Bertrand Marchand for a similar representative offender, namely a conditional discharge with strict probation conditions […]. [Our translation]

At the second step, the gap between a conditional discharge and one year in prison « easily » meets the standard of gross disproportionality (paras. 7 and 100). The Court reviewed the three elements from Hills. On the scope of the offence, it noted that possession of child pornography captures « both the highly organized offender who, over the years, has accumulated thousands of files and the offender who, one day, keeps a file that was sent to him without his asking for it, » and that the mandatory minimum applies regardless of the content of the material (para. 104). The same is true of accessing (para. 105).

On the effects of the penalty, the Court stressed that imprisoning a young adult risks being particularly harmful without promoting his rehabilitation (para. 106), and stated a principle that will guide future challenges:

[108] The mandatory application of a minimum sentence of imprisonment for criminal conduct for which the fit sentence is not imprisonment is a strong indicator of its unconstitutionality, given the « profound qualitative difference between a sentence served in the community and imprisonment » […]. [Our translation]

On the objectives of the penalty, finally, the Court acknowledged that Parliament intended to give primacy to denunciation and deterrence, but found that the other measures adopted, notably section 718.01 of the Criminal Code and the increase in maximum sentences, together with the teachings of R. v. Friesen, 2020 SCC 9, already ensure severe sentences. The mandatory minimum therefore goes « beyond what is necessary, » since it excludes any non-custodial sanction, including conditional sentences and intermittent sentences, « to the point of almost completely excluding rehabilitation » (paras. 112 to 115). The fact that Parliament itself provided for a six-month minimum when the same offence is prosecuted summarily shows that it contemplated that much lighter sentences could be appropriate, and « [t]he Crown’s choice should not determine whether an offender receives an appropriate sentence or an excessive one » (para. 116).

The Supreme Court of Canada therefore concluded, by a narrow majority of five judges to four, that:

[118] […] The mandatory minimum sentences provided for in ss. 163.1(4)(a) and (4.1)(a) of the Criminal Code are contrary to s. 12 of the Charter and are not saved under 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. [Our translation]

It is important to note what the judgment does not say. The Court did not conclude that the crimes of possession and accessing call for leniency: on the contrary, it affirmed that the teachings of Friesen, which require severe sentences for sexual offences against children, « are fully applicable » to these crimes (para. 34). Mr. Senneville himself saw his sentence raised to one year of imprisonment by the Court of Appeal, and that sentence was not called into question. What the judgment establishes is that the judge must retain the latitude to impose a non-custodial sentence in cases at the low end of the scale of gravity.

The declaration of invalidity changes nothing for the offender who has accumulated thousands of files and has made no effort at rehabilitation: it does, however, restore the judge’s ability to tailor the sentence in the least serious cases

A few months later, the Quebec Court of Appeal applied the same reasoning to the one-year mandatory minimums for making and distributing child pornography, in R. v. Gagnon, 2026 QCCA 583, substituting conditional sentences for incarceration in a case at the low end of the scale of gravity.

What this changes for the accused

For a person charged with possession or accessing, sentencing officially becomes an individualized exercise once again, in which the evidence presented by the defence regarding the accused’s rehabilitation efforts has a significant impact. The following elements are decisive:

• The number and nature of the files: a single image received without asking for it is not comparable to a collection built up over the years, and the age of the victims and the nature of the acts depicted bear directly on the gravity of the offence.
• How the material was acquired and how long it was possessed: material obtained through active searches on specialized sites, using file-sharing or trace-erasing software, differs from passive, one-time receipt.
• Personal characteristics: age, the absence of a criminal record, mental health problems, developmental disorders or addiction are factors the Supreme Court expressly invites courts to consider (para. 59).
• Risk assessment and therapeutic steps: a specialized assessment concluding that there is no deviant sexual interest and a low risk of reoffending, as well as therapy undertaken, were highlighted in the files of Mr. Senneville and Mr. Naud (paras. 9 and 10).
• Cooperation with the authorities, a guilty plea, sincere remorse and compliance with release conditions.

These factors must be documented, often through expert reports, and presented to the court in a structured way. They also determine whether a constitutional challenge under section 12 should be raised, in application of Senneville.

Your rights as an accused person

A charge of possessing or accessing child pornography generally follows a search and the seizure of electronic devices. The person charged benefits from the presumption of innocence, and it is up to the prosecution to prove beyond a reasonable doubt knowledge and control of the material, the essential elements of possession. From the moment of arrest, the person has the right to remain silent and to consult a lawyer without delay. Statements made to the police, as well as consent to a search or the handing over of a password, can have decisive consequences for the outcome of the case; it is preferable to say nothing before obtaining legal advice.

The validity of the search warrant, the way the devices were analyzed and the proof of the user’s identity are all matters the defence must examine before any discussion of sentence. Although this article deals with sentencing, guilt must first be established or admitted.

A free information session with Me Alexandre Lacroix

A charge of possessing or accessing child pornography carries serious consequences: a criminal record, possible registration on the sex offender registry, prohibition orders and the risk of imprisonment. Since Senneville, the mandatory minimum is no longer automatic, but the outcome depends on the quality of the evidence presented by the defence and on the strategy adopted from the earliest stages of the case. Me Alexandre Lacroix, criminal defence lawyer, offers a free, no-obligation information session to analyze your case, assess the prosecution’s evidence and advise you on the options available to you.

This blog post is provided for general informational purposes only and does not constitute legal advice. Every situation is unique — consult a legal professional for advice tailored to your case.