The Supreme Court Applied the Charter. The Politicians Lost It.

Canada’s Supreme Court did something unremarkable last week. It applied the Charter, though judging by some reactions, that now counts as judicial activism.

In the 5–4 Quebec (Attorney General) v. Senneville decision, the court struck down a one-year mandatory minimum sentence for possessing or accessing child pornography. The majority repeated what it has said for decades: punishment must fit both the crime and the offender. A single mandatory penalty that treats everyone the same, from experienced abusers to naïve teenagers, fails that test.

There is no debate about the seriousness of child exploitation. It is abhorrent. The law already allows for the imposition of severe sentences, and those sentences are most often far above the minimums. But punishment still must make sense. The one-year minimum treated every offender identically, whether the person was a predator hoarding thousands of files or an eighteen-year-old kid who received an unsolicited photo from a seventeen-year-old partner. Should the law treat those two individuals similarly? If you think yes, congratulations, you just voted for moral panic over common sense.

However, rather than explaining the decision, some politicians chose to torch reason and confidence in the justice system.

Manitoba Premier Wab Kinew led the charge, telling reporters that they should “put you into general population, if you know what I mean,” and, in case there was any confusion, he clarified exactly what he meant, “They should bury you under the prison.” Read that again. The Premier of Manitoba, a man who once spoke about reconciliation and rehabilitation, is now publicly calling for violence against prisoners – effectively cheering on the murder. Kinew’s disgusting pro-murder message is unmistakable: forget due process, forget proportionality, forget humanity, make jails more dangerous, and embrace vigilantism.

Federal Conservative leader Pierre Poilievre and Alberta Premier Danielle Smith soon joined in, promising to restore mandatory minimums and even suggesting the use of the notwithstanding clause to overrule the Charter. The pattern is familiar: condemn the judges, play to fear, misrepresent the evidence, and label it leadership. It may serve politics and fundraising emails, but it does nothing for public safety.

Here is what the Supreme Court actually said: the majority found that the one-year minimum was unconstitutional because it could result in a grossly disproportionate sentence in reasonably foreseeable situations. They gave the example of an eighteen-year-old who briefly keeps an explicit image of a seventeen-year-old acquaintance – conduct that is technically an offence but probably doesn’t deserve a year in jail. Even the dissenting judges didn’t outright defend the minimum; their disagreement concerned how to test a law’s constitutionality through hypothetical examples, rather than whether this minimum sentence was, in fact, unconstitutional.

Mandatory minimums make poor law and even worse policy. They remove discretion from judges who hear the evidence, discourage guilty pleas, and push negotiations into back-room plea deals. Decades of Canadian research show that minimum sentences don’t deter crime. Offenders rarely know what the sentence will be, often believe they will not be caught, and seldom act after a calm weighing of consequences. Even worse, there is compelling evidence that rigid sentencing rules can even increase violent crime by ignoring rehabilitation and creating “nothing to lose” situations for offenders. In other words, mandatory minimums manage to be cruel, expensive, and useless all at once.

None of this should come as a surprise. The Supreme Court has been warning Parliament for years – in cases such as Nur, Lloyd, and Boudreault – that many minimum sentences violate the Charter. Yet successive governments chose to keep them on the books, and the right wing continues to cast them as a silver bullet.

This most recent Supreme Court decision is not about leniency or softness on crime. It is about respecting the principle that punishment must be proportionate and that the Constitution applies to everyone, even the unpopular. Politicians who attack that principle are not defending victims or protecting children; they are attacking the legal framework that protects us all.

The question now is whether governments and the rage-baiting opposition will finally listen. Because if they continue to equate harshness with safety and slogans with policy, then it is not offenders who are being buried under the prison – it is the rule of law itself.