Senneville: Failing to protect children for over 25 years.
as a matter of executive, judicial and parliamentary policy
From Judge Shaw in 1999 to Senneville in 2025
“The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen.”
Justice Lord Devlin, Trial by Jury
On October 31, 2025, the Supreme Court of Canada struck down Parliament’s one-year mandatory minimums for child pornography. In Quebec (Attorney General) v. Senneville (2025 SCC 33), a 5-4 majority held the minimums violated Section 12 of the Charter. The pivotal evidence wasn’t the offenders before the court but a hypothetical scenario the Crown itself introduced and validated as “reasonably foreseeable”
In January 1999, BC Supreme Court Justice Duncan Shaw struck down Canada’s child pornography possession law in R. v. Sharpe. The public outcry “exceeded in volume and fury anything I’ve ever seen in Canada for a court decision” according to Shaw himself.
Seventy-five Liberal Members of Parliament signed a letter to Prime Minister Jean Chrétien demanding immediate action using Section 33, the notwithstanding clause. The letter stated: “We ask that the government not wait for the appeal of the B.C. decision to be heard but immediately act in the defence of Canada’s children.”
Thirteen days later, after Minister of Justice Anne McLellan requested they “trust the courts,” those same 75 MPs voted against the very action they’d demanded.
Parliament blinked. The precedent was set.
Peyman Askari of In Lay Terms helps me tell the story
The Shaw Decision That Shocked Canada
January 15, 1999: Justice Shaw struck down Section 163.1(4) of the Criminal Code, possession of child pornography, as violating freedom of expression under Section 2(b) of the Charter.
The reaction was immediate and volcanic. Canada erupted.
Seventy-five Liberal MPs signed a letter on January 20, 1999. Independent MP John Nunziata read the complete text into the Parliamentary record (Hansard, Feb. 2, 1999):
“That the government should take legislative measures to reinstate the law that was struck down by a recent decision of the Court of British Columbia regarding the possession of child pornography, even if that entails invoking section 33 of the Constitution Act, 1982 (the notwithstanding clause).
We ask that the government not wait for the appeal of the B.C. decision to be heard but immediately act in the defence of Canada’s children. The undersigned Liberal members of parliament recommend that strong new child pornography legislation be introduced as soon as the House resumes. We ask also that we consider the use of the notwithstanding clause or other equivalent effective measures to send a clear message that the charter of rights will never again be used to defend the sexual abuse of Canada’s children.“
Parliament Capitulates
February 2, 1999: Parliament voted on a Reform Party motion calling for immediate Section 33 action.
Result: Defeated 159-112.
The same 75 Liberal MPs who signed the January 20 letter demanding Section 33 now voted against it.
“Guess who signed this letter on January 20? The member who just spoke. I would like to ask the member who got to him between January 20, 1999 and February 2, 1999, or perhaps he just wanted to be able to tell his supporters that he really fought this thing but when it came time for him to put his money where his mouth was, he was not willing to do it.”
“How can these members reconcile having asked for a specific course of action just a few short days ago and putting their signature to this request in a letter to the Prime Minister and then a few days later parking their principles at the door and acting like obedient sheep? Whose interests are they serving? Are they serving the interests of their constituents? Are they serving the public interest? Or are they afraid to offend some unelected people in the Prime Minister’s office?“
The Shaw Removal Debate
The capitulation went beyond Section 33. Parliament also debated removing Justice Shaw under Section 99 of the Constitution Act—Parliament’s authority to remove judges for misconduct.
MPs understood their constitutional authority:
Jason Kenney:
“The Canadian system is based on a principle known as parliamentary supremacy... We can act. The Constitution gives us the power to act and we must act.“
Jim Pankiw:
“There is nothing stopping us today from acting... Let us do it right now.”
Chuck Cadman:
“When there is this kind of flagrant abuse of a position of public trust, are we not duty-bound to deal with it immediately?“
Former AG/MOJ Anne McLellan requested Parliament not to.
McLellan said, “I would ask the official opposition to respect the rule of law” and suggested the notwithstanding clause “was intended to be used in extraordinary circumstances” only “after we receive the advice and guidance of the highest court of the land, the Supreme Court of Canada.”
But that’s not true at all. There is nothing to support that position but it is also the position being currently advanced by the Federal Government in their appeal on the use of the notwithstanding clause before the Supreme Court of Canada on Bill C-21 in Quebec. (https://www.canada.ca/en/department-justice/news/2025/09/statement-from-minister-fraser-on-canadas-intervention-before-the-supreme-court-of-canada.html)
Parliament backed down on Shaw’s removal.
But the precedent was set: Parliament doesn’t challenge judicial decisions on Charter grounds.
For 26 years, that lesson would govern Canadian constitutional politics.
2025 Senneville
March 13, 2020: Quebec Court Judge Mario Tremblay sentenced two men for child pornography offenses. Both men had no prior records but in possession of several hundred images and videos of children between 3-10 being sexually abused. One man was sentenced to 90 days weekend imprisonment and the other who used specialized software to access, distribute and hide traces was sentenced to 9 months.
The Criminal Code required one-year mandatory minimum.
Judge Tremblay ruled the mandatory minimum was “grossly disproportionate” for these two men. He struck it down as cruel and unusual punishment under Section 12 of the Charter and explicitly stated (para. 60) it was “unnecessary to look at reasonable hypotheticals.”
The law survived for everyone else.
The Attorney General of Quebec could have accepted this narrow ruling.
Instead, they appealed.
But watch what they did in that appeal.
In their factum to the Court of Appeal, the Attorney General of Quebec introduced a scenario from an earlier Ontario case (R. v. John, 2018 ONCA 702, para. 29):
An 18-year-old receives on his cell phone, from his friend of the same age, a “sext” originally from the friend’s 17-year-old girlfriend. The 18-year-old keeps the image on his phone.
This hypothetical became the centerpiece of the Supreme Court’s constitutional analysis.
Then came the documented sabotage.
From the Supreme Court decision (para. 87):
“Importantly, it is the appellants [Attorney General of Quebec] who brought the contours of this scenario to the Court’s attention (A.F., at para. 89), and the Attorney General of Quebec’s representative confirmed at the hearing that the scenario from John constitutes, in their opinion, a reasonably foreseeable scenario.“ (Emphasis added)
The party tasked with defending Parliament’s mandatory minimums:
Introduced a sympathetic hypothetical of arguably innocent conduct
Validated it as “reasonably foreseeable” on the record
Handed the courts the ammunition to strike down the law for everyone
What a Real Defense Looks Like
If the Attorney General genuinely wanted to uphold mandatory minimums:
Challenge the hypothetical: “This is too remote, too extreme, not truly foreseeable”—exactly what the 4 dissenting judges argued (para. 235).
Distinguished the John case: Not binding on Quebec or the Supreme Court. Possibly wrongly decided.
Argue narrow application: Use “reading down” to exclude edge cases while preserving core prohibition.
Emphasize prosecutorial discretion: “We’d never charge the 18-year-old scenario. It’s theoretical, not foreseeable.”
Rely on statutory defenses: Criminal Code includes “close in age” exceptions that likely protect this hypothetical.
Present evidence: “Show us one case where an 18-year-old was charged under these facts. If it’s never happened, it’s not ‘reasonably foreseeable.’”
They did none of this.
They validated the hypothetical. The Court used it to strike down mandatory minimums nationwide.
The Federal Government’s Absence
The Attorney General of Canada did not intervene.
The Criminal Code is federal legislation. Under the Department of Justice Act, the federal Attorney General has a statutory duty to defend federal laws when challenged in court.
When provincial courts strike down federal criminal law, the federal AG routinely intervenes to represent Parliament’s interests.
Not this time.
Five Interveners - Zero Engagement
Five organizations filed factums representing competing perspectives:
SUPPORTING Mandatory Minimums:
Raoul Wallenberg Centre for Human Rights
Canadian Centre for Child Protection Inc.
OPPOSING Mandatory Minimums:
Canadian Civil Liberties Association
Criminal Lawyers’ Association (Ontario)
Association québécoise des avocats et avocates de la défense
The Supreme Court’s 265-paragraph decision contains exactly ZERO substantive engagement with any intervener arguments.
The Court ignored child protection experts. It ignored civil liberties scholars. It ignored the criminal defense bar. It conducted its constitutional analysis using only the arguments manufactured by parties who were supposed to be adversaries but were functionally collaborators.
How the Ruling Expanded
TRIAL COURT (Judge Tremblay, 2020 QCCQ 1204) hypotheticals unnecessary. “Unconstitutional as applied to these two men”
COURT OF APPEAL (Majority, 2023 QCCA 731) Adopted Crown’s validated hypothetical. Mandatory minimum struck down province-wide
SUPREME COURT (5-4, 2025 SCC 33) Used Crown’s hypothetical as centerpiece “Unconstitutional nationwide”
The procedural outcome:
If Crown had NOT appealed: Senneville: 90 days, Naud: 9 months. Everyone else: mandatory minimum. Parliament’s law intact
Because Crown DID appeal and introduced the fatal hypothetical: Senneville: 90 days, Naud: 9 months, Everyone: no mandatory minimum. Parliament’s law destroyed
The Crown achieved the exact opposite of its stated objective.
Unless that wasn’t the real objective.
The Dissent
Chief Justice Wagner and Justices Côté, Rowe, and O’Bonsawin dissented (paras. 119-265).
“The five hypothetical scenarios considered by the Court of Appeal have only a remote connection with the cases before the Court.”
They recognized the disconnect: Senneville and Naud possessed hundreds of images of young children being sexually abused. The hypothetical involves a single sext of a 17-year-old. These aren’t comparable scenarios.
“In their reasons, my colleagues maintain that they are simply clarifying the law on s. 12 (para. 201). In my view, the test that they introduce constitutes a significant departure from our precedents...”
The Charter isn’t meant to strike down laws based on theoretical edge cases that prosecutors would never charge and statutory defenses would likely protect anyway.
What the Court Actually Did
On October 31, 2025, the Supreme Court of Canada committed a constitutional violation to strike down a constitutional law.
The Court borrowed “reasonably foreseeable hypothetical” analysis from tort and civil law, a tool designed for actual people in actual cases with actual evidence.
They misapplied it to criminal law. They created a person who doesn’t exist. They assumed his guilt without trial. They read his mind to determine he knew he was guilty, that he knew the girl was 17, knew this made it child pornography, and knew he was committing a crime. They ignored Section 163.1(6). They convicted him without evidence, hearing, or due process. They applied Parliament’s mandatory minimum to their phantom conviction. Then they declared Parliament’s law unconstitutional.
The SCC violated Section 11(d), the presumption of innocence, to strike down a law under Section 12. They violated the fundamental requirement of criminal law, mens rea. A guilty mind. They borrowed a civil law process designed to test liability for real people and weaponized it to assume criminal guilt for a phantom.
The Crown’s Manufactured Crisis
The Attorney General of Quebec Introduced this specific hypothetical. Validated it as “reasonably foreseeable”. Never challenged the assumption of guilt. Never argued the presumption of innocence. Never raised the statutory defense and handed the Court everything needed to strike down Parliament’s law
The Federal Government’s Betrayal
The Attorney General of Canada did not intervene.
The Department of Justice Act imposes a statutory duty on the federal AG to defend federal laws challenged in court. When the SCC struck down Parliament’s mandatory minimums nationwide, no one defended, Parliament’s legislative authority, the presumption of innocence, the statutory defense against the assumption of guilt against judicial mind-reading of a phantom person.
My November 2, 2025 letter to Minister Sean Fraser:
“Please provide a written explanation within 30 days why the Attorney General of Canada did not intervene in Quebec (AG) v. Senneville, 2025 SCC 33, which struck down Criminal Code ss. 163.1(2)(a), (4.1)(a).”
January 15, 1999: Justice Shaw strikes down child pornography possession law
January 20, 1999: 75 Liberal MPs sign letter demanding Section 33
February 2, 1999: Same 75 MPs vote against Section 33 (159-112)
2001: Supreme Court partially upholds law in R. v. Sharpe March 13,
2020: Judge Tremblay strikes down mandatory minimums for two offenders
2023: Quebec Court of Appeal expands ruling province-wide using Crown’s hypothetical
October 31, 2025: Supreme Court strikes down mandatory minimums nationwide (5-4)
November 2, 2025: Letter to Minister Fraser requesting explanation for non-intervention
The Unanswered Questions
Why did the Attorney General of Quebec introduce this hypothetical, validate it, and never challenge the constitutional violations required to use it?
Why did the Attorney General of Canada refuse to intervene when Parliament’s federal criminal law was being struck down nationwide?
Why did no one defend the presumption of innocence when the Court violated it to destroy Parliament’s law?
Why did no one point out that the Court was reading the mind of a person who doesn’t exist to determine he knew he was guilty of conduct that likely isn’t criminal?
Unless the goal was never to defend Parliament’s law. Unless 26 years of precedent - starting with McLellan convincing Parliament to surrender in 1999 - created a system where courts rule, Parliament surrenders, the Crown assists, and fundamental rights are violated to expand judicial power and they do it using the most vulnerable members of our society, who have no voice in the legal or the political system.
“I am the Lorax. I speak for the trees. I speak for the trees, for the trees have no tongues.”
“Unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.”
The Lorax by Dr Seuss
The Constitutional Crisis
From my letter to Prime Minister Justin Trudeau in 2021
“This matter is a failing from a matter of Judge Shaw’s fitness as a Judge that was put before Parliament on February 2nd, 1999. Parliament was determined at that time to respond however based on the pleas from the then Minister of Justice Anne McLellan they permitted the Justice system to resolve the matter internally however the consequence of that is reverberating still and will destroy the integrity of Canada’s Justice System unless immediate steps are taken to restore the integrity of the Charter of Rights, and that involves political leadership.“
I was writing because Justice Minister David Lametti refused to respond to my properly served Section 24(1) application requesting Parliament check the Federal Judiciary for Charter compliance.
When I took the matter to court on December 3, 2021, I presented evidence of a failure in the rule of law: the Canadian Judicial Council protecting a judge who protected a judge who protected a lawyer committing fraud, by rejecting the best evidence available, the transcript itself. A decision was due February 14, 2022. The judge didn’t show up. Lametti enforced the Emergencies Act instead.
I filed as an intervener in the Federal Court of Appeal challenges to both the Emergencies Act and the 2024 prorogation. Neither court has rendered a decision. In 2025 I filed with the UN under the International Covenant on Civil and Political Rights.
The Way Forward
Parliament has the constitutional authority to act:
Section 33 - Override judicial Charter decisions
Section 99 - Remove judges for misconduct
Section 101 - Reform the Supreme Court’s structure and jurisdiction
McLellan convinced Parliament in 1999 that using these tools would be “disrespectful to the rule of law.”
26 years later, we see what “respecting the rule of law” produced: courts that assume guilt without trial, read minds to determine guilty knowledge, ignore statutory defenses, violate the Charter to strike down Parliament’s laws, and face no accountability.
The Final Question
On February 2, 1999, Reform MP Myron Thompson closed the debate:
“Mr. Speaker, I rise on a point of order. Based on an earlier decision of a vote in the House, may I recommend we close this place and let the judges and courts run this country.”
The question is whether someone, somewhere, will finally say:
“We can act. The Constitution gives us the power to act. And we must act.”
Because until Parliament reclaims its constitutional authority, courts will continue to create phantom people, assume their guilt, read their minds, ignore their defenses, violate their rights, strike down Parliament’s laws, and call it justice.
The consequence is reverberating still and will destroy the integrity of Canada’s Justice System unless immediate steps are taken.
Those steps require political leadership.
The question is whether any politician has the courage Anne McLellan convinced 75 MPs to abandon in 1999.
If you’re still alive, still in politics, still in public life: Tell Canadians what happened.
If you’ve stayed silent for 26 years out of shame, regret, or party loyalty: Break that silence.
If you justified it to yourselves as “trusting the process”: Look at Senneville and ask if the process deserves that trust.
Because it just happened again. And it will keep happening until someone with the courage you lacked in 1999 stands up and says:
“We can act. The Constitution gives us the power to act. And we must act.”
The author with Alice after falling into the rabbit hole and meeting the evil Queen who yelled, off with his head!
“Sentence first, verdict afterwards.”
The Queen of Hearts, Alice’s Adventures in Wonderland, Chapter 12
Further Reading:
Quebec (Attorney General) v. Senneville, 2025 SCC 33
R. v. Sharpe, 2001 SCC 2
R. v. Sharpe (BCSC, Shaw J.), January 15, 1999
House of Commons Debates (Hansard), February 2, 1999
R. v. John, 2018 ONCA 702
Department of Justice Act, R.S.C. 1985, c. J-2
Constitution Act, 1982, sections 33, 52, 99
This article represents independent analysis of matters of public importance. All claims are derived from publicly available court decisions, parliamentary records, and government documents. Citations provided for verification. Democratic accountability requires citizen oversight.
Comments open. Dissent welcome. Evidence required.