Justice Committee on March 23rd, 2026

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

But as the dissent in Senneville says, a reasonable hypothetical has to first and foremost be reasonable. The two cases that went to the Supreme Court involved two individual men who had between them thousands of images and videos of child sexual abuse and exploitation material, children as young as three and four years old being subjected to absolutely heinous acts. The scenario the Supreme Court invented did not exist in any of the laws before. It was not at issue, and pretty much every legal expert I've spoken to about this has said it likely would never end up in that situation because of safeguards in place that would have prevented most likely a charge from even being laid under child sexual exploitation and abuse material.

Why are we catering to this extreme case that does not exist in law and, in doing so, removing a very real and I would say very necessary mandatory minimum that is there to ensure that actual heinous predators are given a minimum of one year, which I think is far too low?

[Sean Fraser, Liberal, Central Nova, NS]

There are a couple of things I'll offer in response.

First, let me say that we agree on how heinous the behaviour was based on the underlying facts that went to the Supreme Court. I think every one of our colleagues, regardless of their party, feels the same way. We need strong laws to address such egregious behaviour.

The reasonable hypothetical they cited, involving somebody who aged out of a teenage relationship effectively, is the kind of thing that exists in our society. Since that case has come up, I've had a few people come to me from a coaching, cadet program or teaching environment and say these things do come up and that they hope we crack down on the bad actors, but the 18-year-old who innocently received a picture probably isn't who we're thinking of when we think about child sexual exploitation and abuse material.

From my perspective, the use of that reasonable hypothetical is important to ensure that our laws capture appropriately the kind of egregious conduct that was the subject of the offences committed in that decision.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

Do you think some judges are too lenient?

[Sean Fraser, Liberal, Central Nova, NS]

I would agree or disagree with an individual decision on a given basis.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

I'll ask it in a clearer way, Minister. Do you believe that mandatory minimums are an important tool to prevent decisions that are too lenient for the facts at hand?

[Sean Fraser, Liberal, Central Nova, NS]

I have a different view as to why they're important. You want some certainty that certain crimes will be met with serious penalties. You have the opportunity to demonstrate, as a society, that certain behaviours will not be tolerated, so I support the reintroduction of these mandatory minimums that protect those in the books.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

In the Senneville case, judges were ignoring existing mandatory minimums, even without a so-called safety valve. The Investigative Journalism Bureau analyzed 100 cases between 2020 and 2025, and they found that one in three sentences for possession of child sexual abuse material had not adhered to the previous sentencing minimum. Why, then, is the existing minimum, even prior to the Supreme Court weighing in, not keeping these offenders behind bars?

[Sean Fraser, Liberal, Central Nova, NS]

I can't speak to what might be in the head of an individual judge for an individual case. The reasons may have varied between those cases. Suffice it to say, my view is that the mandatory minimum should be upheld, with the exception of cases where it would be grossly disproportionate.

One of the changes that's being proposed in this legislation will help address the problem you've raised by saying that if you're going to deviate, you have to explain why. If you offer reasons as to why it would be grossly disproportionate or why society would be outraged, I can understand why you might see someone moving away. In an exercise of transparency, this bill is going to not only restore the mandatory minimums, but also give more clarity on the kinds of cases you've just raised with me.

[The Chair, Liberal, James Maloney]

Thank you, Mr. Lawton.

The last round goes to Mr. Housefather for five minutes.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you, Mr. Chair.

Thank you, Sean. It's much appreciated that you're before the committee.

Before I get to my questions, I want to discuss the issue of the notwithstanding clause, because it sounds like our Conservative colleagues have been using their question time to argue that the notwithstanding clause should have been used.

Minister, the notwithstanding clause has never been used by the federal Parliament. Is that correct?

[Sean Fraser, Liberal, Central Nova, NS]

Yes.

[Anthony Housefather, Liberal, Mount Royal, QC]

Jean Chrétien was the prime minister for 10 years during the time that the notwithstanding clause was part of the Charter of Rights. He never used the notwithstanding clause. Is that correct?

[Sean Fraser, Liberal, Central Nova, NS]

Yes, and he remains proud of that.

[Anthony Housefather, Liberal, Mount Royal, QC]

In my recollection, there were cases during Jean Chrétien's time as prime minister that Chrétien himself said he had reservations about. Two examples are Marshall, on fishing rights, and the same-sex marriage case. Is that correct?

[Sean Fraser, Liberal, Central Nova, NS]

Certainly.

[Anthony Housefather, Liberal, Mount Royal, QC]

Yet he still managed not to use it. Using the notwithstanding clause is essentially saying that we have a protected right under the charter and we're going to.... Say we're using it because we're not going to limit a right in a way that is reasonable in a free and democratic society. By using the notwithstanding clause, we're essentially acknowledging that. Is that correct?

[Sean Fraser, Liberal, Central Nova, NS]

That's right. You've articulated the limit that I think we should do everything we can to live within.

[Anthony Housefather, Liberal, Mount Royal, QC]

There are alternatives to using the notwithstanding clause—to get around a case like Senneville, for example, rewriting the law to address the concerns expressed by the majority in a court decision, whether we agree with it or not, as you have done in the case of Bill C-16. Is that correct?

[Sean Fraser, Liberal, Central Nova, NS]

More specifically, it is not only to address concerns, but to achieve the same level of public safety that exists or a greater level of public safety, given the laws we have today. That's particularly in the context of mandatory minimums that are written in the code but have been struck down.

[Anthony Housefather, Liberal, Mount Royal, QC]

Exactly. If we go to what exactly you have proposed in Bill C-16, you're essentially restoring the mandatory minimums, but you're giving the court flexibility in a case where one of these reasonable hypotheticals is brought before the court, because nobody can be sure, no matter how long someone has been a prosecutor, that no prosecutor would ever bring such a case. You're ensuring that the court will likely agree that the way the law is drafted is reasonable. It's a reasonable limit on a freedom that is subject to the notwithstanding clause because the court has the discretion in this rare case to impose a lesser sentence.

[Sean Fraser, Liberal, Central Nova, NS]

I expect that in fact far more mandatory minimums will be upheld in the real world as a result of these changes.

[Anthony Housefather, Liberal, Mount Royal, QC]

I would agree with you.

Minister, one of the really important things that I don't think we've touched on is how much consultation you did to get us to this bill. Consultation is the key to making sure we have legislation that multiple stakeholders—and hopefully with a consensus in Parliament—will agree to.

Could you talk about the lengthy process of consultation that you, your parliamentary secretary and the department did with respect to this bill?

[Sean Fraser, Liberal, Central Nova, NS]

Certainly, and at the risk of running out of time.... I think we should all acknowledge that we don't make good decisions if elected officials sit among one another behind closed doors and come up with an idea. There are experts who have dedicated their lives or careers, or who are willing to loan their expertise earned through lived experience, to informing what changes cause problems in people's lives and what solutions will avoid those problems for people going forward.

We spoke with law enforcement, with victims advocates, with people who have been victimized by crimes, including sexual crimes, and with people who have lost their family members to violence. We want to respond to the very real-world phenomenon that too many people are being hurt, too many people are being abused and too many people are being killed. We want to breathe their voices into the laws we adopt so that we can offer protections for people who are living through circumstances that they continue to live with the consequences of every single day.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Chair, do I have any time left?

[The Chair, Liberal, James Maloney]

You have one minute.