STATEMENT: Supreme Court of Canada decision: reinforces CSAEM offences often justify severe penalties, could have done more to reflect victim harm

Earlier this year, the Canadian Centre for Child Protection (C3P) appeared as an intervenor in a case before the Supreme Court of Canada (SCC), Attorney General of Québec (AGQ) v. Senneville. The case involved a challenge by an accused to the constitutionality of the mandatory minimum sentences set out in the Criminal Code for the offences of possession and access of child sexual abuse and exploitation material (“CSAEM”).

In a ruling released today, the SCC declared the mandatory minimum sentences to be unconstitutional. This outcome is not surprising given other jurisprudence surrounding the constitutionality of mandatory minimum sentences in previous years.

The decision is helpful in its acknowledgement of the increased prevalence of CSAEM and its general harm to victims and communities, including the growing threat of AI technology. The decision also clearly states that the finding of unconstitutionality will have no effect on the fact that crimes related to CSAEM, like other sexual offences against children, are serious crimes that often justify severe penalties.

However, it is disheartening that the decision made use of the prior legal term “child pornography” instead “child sexual abuse and exploitation material,” the new term passed into law last year and that came into effect earlier this month. This will have the effect of unnecessarily perpetuating the use of antiquated and problematic terminology in future legal arguments.

Our organization also believes the decision could have done much more to expand on and reflect the very real — but often overlooked — harm victims, survivors, and their families endure in the aftermath of these crimes.

CSAEM harms children not only in Canada, but also around the world — particularly given its proliferation and growing use by offenders worldwide. C3P’s regular intersections with victims of this crime have strengthened our resolve to advocate on their behalf. We intervened in this case to increase awareness of the growing prevalence, and increased severity of these crimes, as well as the extent to which victims of CSAEM are impacted in their present day lives.

Beyond this intervention at the SCC, we also remain steadfast in our commitment to ensuring victims and survivors of CSAEM have their voices heard in courtrooms across the country. C3P has facilitated the submission of over 1,000 victim impact statements in sentencing proceedings across Canada and witnessed firsthand how these statements help frontline courts better understand the realities of the lifelong harm experienced by survivors.

The criminal justice system plays a critical role in addressing this societal issue — but it is only one of many actors with the power to act. C3P continues to call for greater accountability from the technology industry whose services are often used to facilitate these crimes and from government who must do more to protect its citizens in digital environments while ensuring CSAEM victims and their families are supported beyond the courtroom.

C3P is thankful for the pro bono representation of Samantha Hale and Amy Goudge of Lenczner Slaght.

Read C3P’s factum for this case.