Mandatory Minimums — Legal Experts Say Smith’s Interpretation Doesn’t Match the Facts
Alberta MLA Danielle Smith is among several conservative politicians criticizing the Supreme Court of Canada’s Oct. 31 decision striking down the one-year mandatory minimum sentence for possession and access of child sexual abuse material. Smith called the ruling “outrageous” and demanded Ottawa invoke the notwithstanding clause, claiming the decision weakens protections for children.
But the facts of the ruling — and the federal government’s response — show a more complex legal landscape than Smith suggests.
The Case Before the Court
The Supreme Court decision stemmed from a constitutional challenge launched in Quebec. Two men pleaded guilty to possessing hundreds of images and videos of children as young as three being violently abused. Those offenders were not the beneficiaries of the ruling.
Instead, the justices focused on a different, hypothetical scenario: an 18-year-old found with nude images sent unsolicited by a 17-year-old. In such a case, the Court held that a mandatory one-year prison term would be “grossly disproportionate,” violating Section 12 of the Charter, which protects Canadians from cruel and unusual punishment.
Child sexual abuse imagery remains illegal. Penalties remain severe. The Court did not legalize possession or access — it ruled that Parliament must rewrite sentencing provisions so they do not unintentionally criminalize common, legal relationships between 17- and 18-year-olds.
Federal Government Preparing New Legislation
Justice Minister Sean Fraser confirmed he will table a bill before the end of the year to restore mandatory minimums for crimes involving child sexual exploitation — but in a way that complies with the Charter.
Fraser says the Court identified “a very narrow gap,” and that Parliament can close it by:
• tailoring minimums to specific conduct, or
• adding a judicial “safety valve” so judges can exempt rare cases where the minimum would be unconstitutional.
The minister underscored that the government remains committed to “serious penalties for serious crimes,” including possession of child sexual abuse material.
Smith’s Claims Do Not Align With the Ruling
Smith has framed the decision as the Court going soft on child exploitation. But legal experts emphasize that the ruling addresses sentencing structure, not the legality of the crime itself.
The decision does not:
• permit teens or adults to possess sexualized images of minors
• lessen penalties for actual predators
• apply to sexual interference, luring, production, or distribution
• prevent Parliament from restoring mandatory minimums
In fact, the federal government is doing exactly what the Supreme Court instructed: revising the law so that predators still face harsh penalties, but teens in legal relationships are not automatically subject to prison time meant for adults who exploit children.
Teen Relationships and Charter Protections
In Alberta, sexual activity between a 17-year-old and an 18-year-old is legal. The Court has repeatedly struck down mandatory minimums that unintentionally capture normal teen behavior — including in 2023 decisions on child luring and firearms discharge.
Smith’s comments overlook those realities. They also reflect a growing political pattern: conflating teens, sexuality, and exploitation in ways not supported by criminal law or constitutional interpretation.
UCP’s Own History With Child Exploitation Crimes
The UCP’s public outrage on child protection also raises questions in light of the 2019 conviction of former UCP MLA Don MacIntyre, who pleaded guilty to sexual interference involving a child under 14.
Court records revealed MacIntyre told his victim that “God was OK with the touching.” Prosecutors documented repeated abuse that began when the girl was 13. MacIntyre resigned only after charges were laid.
The UCP called MacIntyre a “disgusting individual,” but the party’s leadership — including Smith — has said far less about the fact that one of its own lawmakers was convicted of hands-on, contact sexual abuse of a child.
That crime is distinct from the hypothetical addressed by the Supreme Court. But it underscores the difference between real predators, who receive multi-year sentences for contact offenses, and teenagers, who may face unconstitutional penalties under poorly drafted mandatory minimum laws.
What Has Actually Changed
Nothing in the ruling changes the following facts:
• possession of child sexual abuse material remains a serious criminal offence
• courts continue to impose lengthy prison terms for actual offenders
• mandatory minimums can be rewritten to withstand constitutional scrutiny
• Parliament, not the courts, ultimately determines sentencing policy
The only element struck down was a sentencing floor that could capture cases the law never intended to punish harshly.
Politics vs. Policy
Smith’s interpretation suggests the ruling creates a sudden legal vacuum that enables exploitation. The federal justice minister, constitutional experts, and the Court’s own reasoning say otherwise: the gap is narrow, the crime remains illegal, and new legislation is already being drafted.
This is not a case of the Court loosening protections for children. It is an example of the Charter requiring Parliament to craft laws that punish predators without sweeping innocent or borderline scenarios into the same category.
The crime remains serious. The punishment remains available. And Parliament is now tasked with ensuring the law does what it was meant to do — target abusers, not teenagers.
