The Supreme Court's recent 5-4 ruling in Quebec (Attorney General) v. Senneville has reignited discussions about mandatory minimum sentences, particularly regarding child pornography offenses. The court struck down a one-year minimum sentence for possessing or accessing child pornography, raising questions about the balance between punishment and constitutional rights.

The court's decision centers on the principle that a minimum sentence cannot be "grossly disproportionate" to the punishment an offender would face without the minimum. However, the methodology for applying this principle is complex. The court determined that a minimum sentence must be invalidated if it results in a grossly disproportionate punishment for either the current offender or a hypothetical offender in a foreseeable situation.

In the Senneville case, the court found that a one-year sentence was not grossly disproportionate for the two offenders involved, who possessed numerous disturbing images and videos of children. The majority opinion, however, focused on a hypothetical scenario involving an 18-year-old who receives a file of a 17-year-old victim without solicitation. The majority deemed this scenario foreseeable, while dissenting judges argued it was too remote to be relevant.

Critics of the ruling argue that it undermines Parliament's ability to set clear sentencing guidelines and reflects societal outrage towards serious crimes. Opposition leader Pierre Poilievre has called for Parliament to invoke the notwithstanding clause to counter the court's decision. Supporters of the ruling contend that the rule of law necessitates the invalidation of laws that violate constitutional rights.

Concerns have been raised about the potential consequences of using the notwithstanding clause, including the risk of eroding fundamental civil liberties such as free speech and privacy.

There is an alternative approach to maintaining minimum sentences without resorting to the notwithstanding clause. Some suggest that Parliament should require judges to impose the minimum sentence unless offenders can demonstrate that it would be grossly disproportionate in their specific circumstances. This proposal, which aligns with suggestions from the Senneville majority and practices in other countries, would ensure that minimum sentences are applied in most cases.

Under this framework, judges would not be permitted to deviate from the minimum unless the sentence would be excessively severe, to the point of shocking community standards. Additionally, judges would be required to provide detailed justifications for their decisions, subject to review by appellate courts. This approach aims to balance the need for adequate punishment with the protection of individual rights, ensuring that sentencing laws maintain their democratic legitimacy without violating the Charter.