This week’s top three summaries: Quebec (AG) v Senneville, 2025 SCC 33: min #sentence, R v Hutton, 2025 ABCA 356: 271 mens rea, R v Backfat, 2025 ABCJ 183: #delayed counsel and release

Quebec (Attorney General) v. Senneville, 2025 SCC 33

[October 31, 2025] Charter s.12: Cruel and Unusual Punishment vs Mandatory Minimum [Majority Reasons by Moreau J. with Karakatsanis, Martin, Kasirer, and Jamal J.J. concurring and Wagner C.J., Cote, and Rowe, and O’Bonsawin dissenting JJ. dissenting]

AUTHOR’S NOTE: Mandatory Minimums and Reasonable Hypotheticals — Judicial Oversight in Action

Mandatory minimum sentences remain constitutionally fragile because they risk imposing punishment that is grossly disproportionate in reasonably foreseeable cases. The judiciary’s role in striking down such provisions is not an act of defiance against Parliament, but a constitutional safeguard against unjust and arbitrary deprivations of liberty.

In this case, the one-year mandatory minimum for accessing and possessing child pornography was struck down. The Court reasoned that while Parliament may justifiably seek denunciation and deterrence, the provision captured conduct at the very margins of moral culpability — for example, an 18-year-old who receives and fails to delete a single image of a 17-year-old. Such a scenario demonstrates that the minimum could, in some reasonably foreseeable cases, impose a sentence far beyond what is fit and proportionate under general sentencing principles.

The Court reaffirmed that:

• Constitutionality is tested not only on the facts before the court, but also against other reasonably foreseeable applications of the law.

• The Charter’s s. 12 protection against cruel and unusual punishment requires courts to guard against legislative overreach before it results in individual injustice.

• Maintaining unconstitutional sentencing laws “for longer than necessary” would perpetuate systemic unfairness and undermine confidence in the justice system.

Although the minimum was struck down, the accused’s sentences — 90 days and 9 months respectively — were upheld as proportionate responses to their actual conduct.

Takeaway:
Even in serious offences, constitutional sentencing review ensures proportionality remains the lodestar. The decision underscores the enduring importance of reasonable hypothetical analysis as a safeguard against one-size-fits-all punishment.

[2] The appellants challenge the declarations of unconstitutionality made by the majority of the Quebec Court of Appeal with respect to the mandatory minimum sentences of one year’s imprisonment provided for upon conviction for the offences of possession of child pornography (s. 163.1(4)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”)) and accessing child pornography (s. 163.1(4.1)(a)).1 Before this Court, the argument centred exclusively on the constitutionality of these minimum sentences by reference to situations other than those of the respondents.

[3] This appeal provides an opportunity to reiterate the importance of the possibility for the courts to consider reasonably foreseeable scenarios in the analysis under s. 12 of the Charter. This possibility can avoid invalid laws remaining in force indefinitely, prevent them from having indirect effects in the context of plea bargaining and promote legal certainty and real access to justice. In short, as this Court has consistently repeated, recourse to reasonably foreseeable scenarios is an essential tool for ensuring effective constitutional review.

[4] By assessing a reasonably foreseeable scenario put forward by the parties, I come to the conclusion that the minimum sentences set out in s. 163.1(4)(a) and (4.1)(a) violate the protection against cruel and unusual punishment guaranteed by s. 12 of the Charter.…

[5] Our case law is categorical: a mandatory minimum sentence does not necessarily violate s. 12 of the Charter R. v. Hills, 2023 SCC 2, at para. 38; R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1077). However, when the application of a mandatory minimum sentence is broad and covers a wide range of circumstances, the sentence is “constitutionally vulnerable” (R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 3; R. v. Hilbach, 2023 SCC 3, at para. 52) because it leaves no choice but to impose a grossly disproportionate sentence on certain offenders.

[6] A thorough analysis reveals that this is the case for the mandatory minimum sentences contested in this appeal. The offences with which they are associated cover a very wide range of circumstances. They capture both the well-organized offender who, over the years, has accumulated thousands of files showing prepubescent victims, and the young 18-year-old offender who, one day, keeps and views a file showing a 17-year-old victim that was sent to the offender without them having requested it.

[7] This last reasonably foreseeable scenario was at the centre of the debate before this Court. The facts of this scenario “are . . . captured by the minimum conduct caught by” (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 68; Hills, at paras. 79-80 and 83) the offences of possession of child pornography and accessing child pornography. In the age of digital communication, this scenario is not uncommon, and no aspect of our jurisprudence justifies excluding it for the purposes of the analysis under s. 12 of the Charter. In light of the principles of sentencing, the appropriate sentence for such an offender could be a conditional discharge. The disparity between this non-carceral penalty and the mandatory minimum sentences of one year’s imprisonment easily meets the constitutional standard of gross disproportionality. The impugned minimum sentences thus violate s. 12 of the Charter, and the appellants did not argue that they can be saved by s. 1. The appeal should therefore be dismissed.

II. Background and Judicial History

A. Court of Québec (Tremblay J.)

[9] Louis-Pier Senneville pleaded guilty to one count of possession of child pornography (s. 163.1(4)(a) Cr. C.) and to one count of accessing child pornography (s. 163.1(4.1)(a)). He admitted having been in possession of 475 files, including 317 images of children constituting child pornography. Of those images, 90 percent were of young girls between 3 and 6 years of age, some showing victims being subjected to acts of penetration and sodomy committed by adults and minors. Mr. Senneville admitted that he had acquired these images through specialized sites and that he had possessed them for 8 months. He accessed these images for 13 months. Mr. Senneville is a former soldier who was 28 years old and had no criminal record at the time of the sentencing decision. The decision noted that he cooperated with the authorities and complied with strict release conditions. He had no [TRANSLATION] “pedophilic or hebephilic sexual interests”, and a specialized assessment in sexual offending showed that he was at low risk to reoffend (2020 QCCQ 1204, at para. 41). The sentencing judge found that in addition to having admitted the facts alleged against him, Mr. Senneville was sincerely remorseful and was aware of the harm caused.

(1) The Fitness of the Sentences Imposed

[16] In Mr. Senneville’s case, a majority of the Court of Appeal (Ruel and Bachand JJ.A.) allowed the appeal in order to substitute a sentence of one year’s imprisonment for the sentence of 90 days’ imprisonment to be served intermittently. Bachand J.A., correctly in my opinion, noted that the sentence imposed was demonstrably unfit [TRANSLATION] “principally because of the nature of the images involved and the teachings of Friesen” (para. 232).

B. The Serious Social Harm Caused By Child Pornography Offences and the Teachings of Friesen

[30] ….Incidents of child pornography reported by the police have increased (Friesen, at para. 46), and there is no doubt that crimes related to child pornography today present “serious and pressing social harm” (R. v. Bykovets, 2024 SCC 6, at para. 11), sexual offences against children being “among the most profoundly immoral acts an individual can commit” (R. v. Sheppard, 2025 SCC 29, at para. 1).

[32] People who possess child pornography — just like those who access it — participate in the serious violation of children’s dignity, in that they perpetuate “the exploitation originating from the production of the images” and infringe “their right not to have the permanent record of their abuse and exploitation viewed by adults” (Pike, at para. 147, citing R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 92, 158 and 169,….

….The possession and accessing of child pornography feed the vicious circle of its production, because its production “is fueled by the market for it, and the market in turn is fueled by those who seek to possess it” (Sharpe, at para. 92). Child pornography denies “children’s humanity”, autonomy and dignity and propagates “the false view that children are appropriate sexual partners and that they are sexual objects to be used for the sexual gratification of adults” (para. 183, per L’Heureux-Dubé, Gonthier and Bastarache JJ.; see also Pike, at para. 155). It trivializes and encourages the sexual exploitation of children, and is particularly harmful for this reason, whether or not it depicts real children (Sharpe, at para. 38; Pike, at para. 169)….

[33] ….The criminalization of possession of child pornography is intended, among other things, to bring an end to this violation of children’s privacy by incentivizing the destruction of “pornographic representations which already exist” (ibid.). However, those who choose to possess such material frustrate that objective and, as stated by Tulloch C.J., they act instead as receivers of stolen goods, acquiring “stolen recordings whose production and distribution children cannot consent to, thus robbing children of control over to whom, and in what context, to disclose their abuse and exploitation” (Pike, at para. 148). Moreover, people who possess child pornography and who access that content “make the challenging path of recovery for children much steeper by transforming the initial exploitation and violence of the production into a continuing violation” (para. 149). Victims of child pornography have varying life trajectories and recover at their own pace from the crimes committed against them, but all of them are condemned to spend the rest of their lives “with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone” (Sharpe, at para. 92; see also R. v. Snowden, 2023 ONCA 768, 432 C.C.C. (3d) 52, at para. 93).

[34]….Parliament has increased the maximum sentences for these crimes and indicated that the objectives of denunciation and deterrence must be given primary consideration for such offences (s. 718.01 Cr. C.)….

[35] Proportionality, whose constitutional dimension is enshrined in s. 12 of the Charter (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 41; R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 52), nevertheless remains the central tenet of sentencing. “[W]hatever weight a judge may wish to accord to the objectives [listed in s. 718], the resulting sentence must respect the fundamental principle of proportionality” (Nasogaluak, at para. 40 (emphasis in original); see also….

….R. v. J.W., 2025 SCC 16, at para. 42). As the principle of proportionality requires only consideration of the gravity of the offence and the degree of responsibility of the offender, it performs a limiting function with respect to the objectives of sentencing. It therefore has the effect of limiting the pursuit of other objectives (Nasogaluak, at para. 42). In other words, these other objectives do not render a sentence more proportional or less proportional; rather, proportionality imposes a limit on their pursuit.

[37]….The finding that the mandatory minimum sentences challenged in this appeal cover a wide range of circumstances and in some cases require the imposition of cruel and unusual punishment is at the heart of the constitutional debate before us. It has no effect on the scope of the guidance provided in Friesen or on the fact that crimes related to child pornography, like other sexual offences against children, are serious crimes that often justify severe penalties.

IV. The Applicable Principles

A. The Two-Stage Inquiry for Determining Whether a Mandatory Minimum Sentence Complies With Section 12 of the Charter

[39] The first stage consists in determining a fit and proportionate sentence for the offender in question “and possibly other reasonably foreseeable offenders” (Bertrand Marchand, at para. 104; see also Hills, at para. 40)….

….In this sense, “there is no proportionate sentence that only takes into account the offence and ignores the offender” (Hills, at para. 61). Judges must, at the first stage of the s. 12 analysis, exercise their discretion and determine with precision the sentence that is appropriate either for the offender before them or for an offender in a reasonably foreseeable scenario (paras. 63-66).

[41] The second stage of the analysis therefore requires a comparison between the sentence that was determined at the first stage and the mandatory minimum sentence. This involves assessing the extent of the disparity between these two sentences and determining whether that disparity is such that it meets the constitutional standard of gross disproportionality. It has been consistently emphasized that this standard is a particularly high bar (Lloyd, at para. 24; Bissonnette, at para. 70; Hills, at paras. 109 and 115). The comparative analysis must establish that the sentence is “so excessive as to outrage standards of decency” (Bertrand Marchand, at para. 109, quoting Hills, at para. 109). Put another way, the sentence must shock the conscience or be abhorrent or intolerable (Hills, at paras. 109-10). This is assessed not on the basis of what a court believes to be the views of Canadian society, but rather “through the values and objectives that underlie our sentencing and Charter jurisprudence” (para. 110).

[42] To guide the courts in this comparative analysis, Hills stressed the importance of considering “three crucial components”: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (para. 122). These components were thoroughly explained by Martin J. (at paras. 122-46) and will be applied below to the impugned minimum sentences.

[44] It is essential to consider these three components in the same manner to ensure that a contextual and exhaustive analysis is conducted. The first two components focus on the proportionality of the sentence; the first, relating to the scope and reach of the offence, is used to assess variations in the gravity of conduct and in the degree of culpability, while the second, relating to the effects of the penalty, is used to assess the severity of the sentence and to determine whether its “effect . . . is to inflict mental pain and suffering on an offender such that the offender’s dignity is undermined” (Hills, at para. 133). The third component consists in determining whether the sentence is excessive in light of the legislative objectives of sentencing for the offence in question, having regard to “the legitimate purposes of punishment and the adequacy of possible alternatives” (para. 138, quoting Smith, at pp. 1099-1100). Each of these three components therefore plays a distinct and necessary role in the analysis. If little importance is given to the first component, it will not be possible to fully grasp the variations in the gravity of conduct and in the degree of culpability for the offence in question.

B. The Use of Reasonably Foreseeable Scenarios

(1) The Importance of Effective Constitutional Review

[46] ….Section 52 of the Constitution Act, 1982 does not create a personal remedy: a person can challenge the validity of a legislative provision even if their own rights have not been violated (Nur, at para. 51, quoting Big M Drug Mart Ltd., at p. 314; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Wholesale Travel Group Inc, [1991] 3 S.C.R. 154; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 58-66; see also Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at para. 96; P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 59:6). Thus, “[a] claimant who otherwise has standing can generally seek a declaration of invalidity under s. 52 on the grounds that a law has unconstitutional effects either in his own case or on third parties”….

[48] The position adopted by this Court reflects the principle that the rule of law, enshrined in s. 52(1) of the Constitution Act, 1982, cannot depend on the expectation that each individual faced with an unconstitutional law will have the resources or the will needed to challenge its validity….

[51] In short, Nur confirmed the importance of reasonably foreseeable scenarios in the s. 12 analysis. It unequivocally rejected “the argument that reasonable hypotheticals should be abandoned and that the primary or exclusive focus ought to be on the offender before the court” (Hills, at para. 71, citing Nur, at paras. 48-64, and C. Fehr, “Tying Down the Tracks: Severity, Method, and the Text of Section 12 of the Charter” (2021), 25 Can. Crim. L.R. 235, at p. 240). Hills affirmed this principle. Bertrand Marchand is the most recent reiteration of this.

(3) The Characteristics of a Reasonably Foreseeable Scenario

[55] ….Useful guidance has, however, been provided by this Court:

(i) The hypothetical must be reasonably foreseeable;

(ii) Reported cases may be considered in the analysis;

(iii) The hypothetical must be reasonable in view of the range of conduct in the offence in question;

(iv) Personal characteristics may be considered as long as they are not tailored to create remote or far-fetched examples; and

(v) Reasonable hypotheticals are best tested through the adversarial process.

(Hills, at para. 77)

(a) The Circumstances of the Offence Must Be Reasonably Foreseeable

[57] It must be established that the circumstances of the offence under consideration “are . . . captured by the minimum conduct caught by the offence” (Nur, at para. 68; see also Hills, at paras. 79-80 and 83)….

(b) The Representative Offender Must Have Personal Characteristics That Are Reasonably Foreseeable

[59] In keeping with Nur, Lloyd and R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, Hills confirmed that “characteristics that are reasonably foreseeable for offenders in Canadian courtrooms, like age, poverty, race, Indigeneity, mental health issues and addiction, should not be excluded from consideration” (para. 86; see also paras. 87 et seq.)….

[60] That being said, the personal characteristics used for the s. 12 analysis must “present a reasonably foreseeable offender” (Hills, at para. 91 (emphasis deleted), citing Nur, at para. 75)….

(c) The Expression “Remote” (“n’ayant qu’un faible rapport avec l’espèce”)

[61] The dissenting judge of the Court of Appeal refused to consider the reasonably foreseeable scenarios submitted by the respondents for the purposes of the s. 12 analysis. He deemed all of them too [TRANSLATION] “far removed” from the facts in the cases of Mr. Senneville and Mr. Naud (paras. 217-19)….

[68] Respectfully, the interpretation of Goltz advanced by my colleagues is also inconsistent with Hills. The factual proximity test they propose undermines this Court’s direction that the incorporation of personal characteristics into reasonably foreseeable scenarios is meant to ensure that everyone, without exception, is able to benefit from the protection of s. 12 of the Charter. Thus, it is appropriate “that the effects of a mandatory minimum be scrutinized based not only on the reach of the law and the length of the sentence selected, but also on the breadth of the population to which it is made to apply” (Hills, at para. 89). The Court has reiterated that characteristics that are reasonably foreseeable for offenders before the courts, as a whole, should not be excluded from consideration (paras. 84-90).

[75] In short, the s. 12 analysis does not require factual proximity between the reasonably foreseeable scenario and the case at hand.

(d) The Expression “Extreme Examples”

[81] My colleagues also observe that certain foreseeable scenarios cannot be reasonable because they constitute examples that are “too extreme” (para. 219)….

….In light of the foregoing, I do not see how this meaning can be attributed to the expression “on the basis of remote or extreme examples” (Goltz, at pp. 515-16)….

….However, far from being far-fetched, this scenario simply illustrates the lower end of the scale of conduct that may be caught by the offence, which is essential in assessing the constitutionality of the mandatory minimum sentence. Furthermore, the principle that all reported cases, such as Delage, can be considered reasonably foreseeable scenarios is well established (Hills, at para. 81; Nur, at para. 72). The logic lies in the fact that these cases actually happened and therefore necessarily show the range of real-life conduct captured by the offence even if they “represent an uncommon application of the offence” (Nur, at para. 72).

V. Application

A. The Reasonably Foreseeable Scenario Chosen

• An 18-year-old receives on his cell phone, from his friend of the same age, a “sext” originally from the friend’s girlfriend, who is 17 years old. The “sext” in question is a photograph of that 17-year-old that satisfies the definition of child pornography (s. 163.1(1) Cr. C.). The 18-year-old decides to keep the image on his cell phone.

[84] Assuming, for the purposes of this appeal, that the 18-year-old (“representative offender”) also looked at the photograph during a brief period of time while knowing that it constituted child pornography. He has no criminal record.

[86] This scenario may be used for the analysis under s. 12 of the Charter….

B. The First Stage: The Appropriate Sentence for the Representative Offender

[89] The appellants argue, without elaborating, that [TRANSLATION] “this representative offender should be given an unconditional term of imprisonment” (A.F., at para. 93). The same point of view was repeated during the hearing (transcript, at pp. 34-35). This perspective is disconcerting for two reasons.

[95] An offender’s youth is generally a mitigating factor, and “when sentencing youthful first-time adult offenders, judges must practice restraint, prioritize rehabilitation and account for immaturity, which may mitigate culpability even when it does not excuse the offence” (R. v. Wesley, 2025 ONCA 51, 175 O.R. (3d) 166, at para. 100, citing R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at para. 31; see also C. C. Ruby, Sentencing (10th ed. 2020), at §5.187).

[96] The principle of restraint, embodied in s. 718.2(d) and (e) Cr. C. (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 100), is of increased importance in the case of a youthful first offender (Marien Frenette v. R., 2024 QCCA 207, at para. 38; Bérubé-Gagnon v. R., 2020 QCCA 1382, quoting R. v. Brisson, 2014 QCCA 1655, at paras. 22-23). In enacting these provisions, Parliament [TRANSLATION] “introduced a hierarchy in the choice of sentencing measures and positioned imprisonment as a measure of last resort” (H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (4th ed. 2024), at p. 574).

[99] Although the acts committed by the representative offender are serious and deserve to be denounced, they fall at the lowest end of the gravity scale for the crimes of accessing and possession of child pornography. Furthermore, the offender’s youth and the absence of a criminal record invite restraint. In these circumstances, the appropriate sentence for the representative offender may be of the same order as that identified in Bertrand Marchand for a similar representative offender, that is, a conditional discharge with strict probationary terms (para. 133), a penalty that provides appropriate supervision and increases the offender’s awareness of his crime.

C. The Second Stage: The Threshold of Gross Disproportionality Is Met

[100] Imposing a sentence of one year’s imprisonment on the young 18-year-old representative offender when a fit sentence would be a conditional discharge with strict probationary terms would constitute a grossly disproportionate sentence.

[101] ….As is demonstrated by these cases, the grossly disproportionate nature of the impugned minimum sentences is clear. Consideration of the “three crucial components” described by Martin J. in Hills confirms this.

(1) The Reach of the Offence With Which the Mandatory Minimum Sentence Is Associated

[102] Parliament is free to create mandatory minimum sentences, but these sentences are constitutionally vulnerable when they are associated with crimes that encompass a wide range of conduct. This is the case for the crimes of possession of and accessing child pornography.[Emphasis by PJM]

[103] There is no question that the crime “of possession of child pornography is extremely broad” (R. v. Swaby, 2018 BCCA 416, 367 C.C.C. (3d) 439, at para. 97). First, given the definition of child pornography (s. 163.1(1) Cr. C.), this Court has already noted that Parliament criminalized “the possession of a substantial range of materials posing a risk of harm to children”, including writings (Sharpe, at para. 72). The scope of the materials caught is nevertheless narrowed by the “limits inherent in the s. 163.1(1) definition” (para. 73), the defences provided for in s. 163.1(5) and (6) as well as the two categories of material excluded from the interpretation of s. 163.1(4) according to Sharpe (paras. 115-27).

(2) The Effects of the Penalty on the Offender

[106] The harm that a sentence of one year’s imprisonment causes to a representative offender should not be underestimated. The experience of prison is likely to be particularly harmful to a young adult. As this Court has recognized, “incarceration is often not a setting where the reformative needs of young people are met” (Hills, at para. 165, citing Ruby, at §5.191). What is more, incarcerated youthful offenders are often “bullied, pressured to join adult prison gangs, and are vulnerable to segregation placements” (Bertrand Marchand, at para. 152, citing Hills, at para. 165, and Office of the Correctional Investigator and Office of the Provincial Advocate for Children and Youth, Missed Opportunities: The Experience of Young Adults Incarcerated in Federal Penitentiaries (2017)). The imposition of a sentence of one year’s imprisonment therefore risks being very harmful to the representative offender without promoting his awareness and his rehabilitation.

[107] Even though the representative offender chosen does not have mental health issues, I note that, in a number of real cases that have come before the courts, it has been found that prison would be an intolerable experience for certain vulnerable offenders. For example, in Swaby, the offender had cognitive and mental health issues, and the two psychologists who evaluated him “agreed on the deleterious effect that incarceration would have on him” (para. 67). Generally, this Court has recognized that the principle of proportionality requires that the effects of a sentence of imprisonment be considered in light of the characteristics of a particular person, for example the fact that they have a disability (Hills, at para. 135, citing R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48, and B. L. Berger, “Proportionality and the Experience of Punishment”, in D. Cole and J. Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (2020), 368, at p. 368).

(3) The Sanction and Its Objectives

[110] These initiatives demonstrate Parliament’s intention to ensure that crimes related to child pornography lead to sentences that emphasize denunciation and deterrence. This choice is consistent with other measures taken by Parliament — including the enactment of s. 718.01 Cr. C. — to ensure that these objectives are prioritized in the case of sexual offences against children. This change also reflects the fact that protecting “children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code” (Friesen, at para. 42).

[112] In this context, the impugned mandatory minimum sentences go beyond what is necessary to attain their objectives. Parliament’s other initiatives and the state of the case law since Friesen ensure the imposition of severe sentences prioritizing denunciation and deterrence for crimes related to child pornography.

[113] While it can be assumed that the impugned mandatory minimum sentences contribute to the prioritization of these objectives, they also have the effect of removing judges’ discretion to impose sentences other than imprisonment in the appropriate circumstances. The Court has already indicated that there are solutions to this problem. Parliament may wish to maintain minimum sentences for certain crimes, but it must respect the limits imposed by the Charter….

[114] As they presently stand, the impugned minimum sentences lead, in all cases where the offence is prosecuted by indictment, to the imposition of sentences of imprisonment of at least one year. For this reason, and as was found in Bertrand Marchand, certain objectives have been prioritized “to the near complete exclusion of rehabilitation” (para. 159). For example, the impugned minimum sentences preclude the possibility of imposing non-carceral penalties, including a conditional sentence (s. 742.1(b) Cr. C.), a sanction that still has the potential to “achieve the objectives of denunciation and deterrence as effectively as incarceration” (Proulx, at para. 100)….

(4) Conclusion Regarding the Second Stage of the Analysis

[117] Considering the reach of offences with which the mandatory minimum sentences are associated, the objectives of these sanctions and their effects on offenders, a sentence of one year’s imprisonment for the representative offender would be grossly disproportionate and therefore violates s. 12 of the Charter.

VI. Conclusion

[118] For these reasons, I would dismiss the appeal. The minimum sentences set out in s. 163.1(4)(a) and (4.1)(a) of the Criminal Code are contrary to s. 12 of the Charter and are not saved by 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.

R v Hutton, 2025 ABCA 356

[October 29, 2025] Mens Rea in Sexual Assault [Jack Watson, Frans Slatter, and Jo’Anne Strekaf JJ.A.] 

AUTHOR’S NOTE: Mens Rea in Sexual Assault — Beyond the Question of Communicated Consent

The Alberta Court of Appeal continues to refine the boundaries of mens rea in sexual assault cases — specifically, when and how a trial judge must address the accused’s state of mind where the defence of honest but mistaken belief in communicated consent is not available.

In this case, the Court diverged from its own recent reasoning in R v Bilinski, 2025 ABCA 270, emphasizing that mens rea must still be analyzed whenever the credibility findings leave room for ambiguity about what the accused actually believed at the time of the sexual activity.

Here, the trial judge did not entirely accept the complainant’s version of events and found the accused to be a credible witness. In these circumstances, the Court of Appeal held that the judge was obliged to consider more than simply whether express consent to vaginal intercourse was established. Even where honest but mistaken belief in communicated consent cannot succeed, the broader question of whether the accused knew of, or was reckless or wilfully blind to, the absence of consent must still be addressed.

This decision signals that:

• A trial judge cannot bypass the mens rea analysis merely because the complainant’s lack of consent is found as a fact.

• Where credibility findings create uncertainty about the accused’s perception of the encounter, mens rea remains a live issue.

• The line between absence of consent and knowledge of that absence continues to challenge both trial courts and appellate panels.

Takeaway:
This ruling reinforces that the actus reus and mens rea of sexual assault are distinct inquiries. Even when consent is not communicated, trial judges must explicitly address what the accused believed or understood — particularly where their testimony is found credible in part.

[2] The appellant and complainant had a sexual encounter that was consensual up to the point that penile vaginal intercourse occurred. The complainant testified that she did not consent to intercourse, whereas the appellant’s evidence was that he honestly but mistakenly believed the complainant had communicated consent to that activity and was in fact consenting. The trial judge found both the appellant and complainant to be honest, careful and good witnesses; where their evidence differed, the trial judge stated she did “not know who to believe”. Accordingly, she said she would consider whether, on his own evidence, the appellant had admitted to a sexual assault.

[3] The trial judge found it was uncontroverted that intentional touching of a sexual nature had occurred. In considering whether the complainant consented to the sexual touching, the trial judge noted that consent must be to the specific sexual activity in question; consent to one act does not mean consent to another. She found that the complainant did not consent to the act of penile vaginal intercourse.

[4] The trial judge then turned to the knowledge element of mens rea. She noted the defence argument that the accused honestly believed the complainant had communicated consent and found there was an air of reality to the defence. However, she found that the appellant did not take “reasonable steps” to ascertain whether the complainant consented when the nature of the sexual activity changed to penile vaginal intercourse because, in her view, “no words were spoken”, and notwithstanding her finding that “the parties agreed that their actions conveyed willing participation and enjoyment” up to that point. On that basis, she found the appellant did not have an honest but mistaken belief in communicated consent and concluded, therefore, that the Crown had proved all the essential elements of sexual assault.

[6] We conclude that the mens rea requirement for sexual assault in this case – that the accused knew of, or was reckless or wilfully blind as to, the absence of the complainant’s consent – should have been addressed even if the defence of honest but mistaken belief in communicated consent was not considered available. After rejecting the position of the defence as to mistaken belief in expressly communicated consent in this case, the trial judge failed to go on to consider if the knowledge element of mens rea as to lack of consent in fact had been proven beyond a reasonable doubt.[Emphasis by PJM]

[7] The trial judge found that she could not fully accept the complainant’s version of the events beyond a reasonable doubt and found the appellant a credible witness. It was therefore necessary for her to consider on her fact findings more than whether consent to penile vaginal intercourse was expressly consented to by the complainant. On the appellant’s evidence, the requisite mens rea was not established and the conviction must be overturned.[Emphasis by PJM]

[8] In such circumstances, it is appropriate not to direct a new trial. The required mens rea was not made out on the findings of the trial judge as to the credibility of the appellant’s evidence regarding the activities in question. The adjudication of such factual matters is for a trier of fact….

….Here the legal error by the trial judge was in not applying the law to her fact findings. Her effective fact finding was that there was a reasonable doubt as to whether the appellant had the requisite mens rea as to lack of consent to the activity in question.

[9] The appeal is allowed, and an acquittal is entered.