On October 31, 2025 the Supreme Court of Canada released Quebec (Attorney General) v. Senneville, 2025 SCC 33, striking down a one-year mandatory minimum penalty for a child pornography offence as grossly disproportionate and therefore contrary to Charter s. 12. The decision continues a clear post-Bill C-5 trajectory and reinforces the analytical structure that defence counsel will rely on in every s. 12 challenge from this point forward.
Bill C-5 (royal assent November 17, 2022) had already repealed roughly one-third of Canada's mandatory minimum penalties — all CDSA drug offences, 14 firearms-related Criminal Code offences, and one tobacco offence — in a direct response to the Supreme Court's pattern of striking minimums under s. 12. Bill C-5 also expanded conditional (house-arrest) sentences for many offences and codified diversion for simple drug possession.
What remained after Bill C-5 — including a number of child sexual offences, repeat impaired driving, and certain firearms minimums not repealed — has continued to come under s. 12 scrutiny. Senneville is the latest in that line. The Court's framework remains the one set out in Nur (2015) and Lloyd (2016): a minimum survives s. 12 only if it is not grossly disproportionate either in the specific case before the court or across the range of reasonably foreseeable cases the minimum could capture.
Three practical takeaways for defence counsel. First, the s. 12 analysis is now well-tracked: the 'reasonable hypothetical' framework remains the doctrinal core, and Senneville reaffirms that the test focuses on the gap between the minimum and a fit sentence, not on the gravity of the offence in the abstract. Second, defence counsel facing a mandatory minimum where a fit sentence is materially below it should be raising a s. 12 challenge as a matter of course — particularly in firearm and child sexual offence files, where the existing sentencing case law generally supports a fit sentence below many of the surviving minimums. Third, the Court continues to leave intact the most serious minimums (murder, certain repeat firearms offences) — so the strategic question is not whether s. 12 challenges work in principle, but where on the spectrum the challenge fits.
On the bail side, the post-Bill C-48 reverse-onus expansion (royal assent December 5, 2023, in force January 4, 2024) continues to reshape early-stage strategy. New reverse onus applies for repeat violent offending with a weapon and on four added firearms offences (s. 95, s. 98, s. 98.1, s. 102). Bail courts must expressly consider the safety and security of the community and any history of convictions involving violence. A meticulously prepared release plan — sureties, supervision conditions, treatment or counselling tracks — has never mattered more on a reverse-onus matter.
We continue to see the Jordan ceilings (R. v. Jordan, 2016 SCC 27 — 18 months in OCJ, 30 months in SCJ) as one of the most reliable defence wins available in matters that approach the ceiling. Stays under s. 11(b) remain a real outcome and will continue to be, particularly in OCJ matters where the system is under sustained delay pressure.
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