We all know the so-called “reasonable” hypothetical used by our learned justices just down the street had absolutely nothing remotely similar to the activities of Senneville and Naud.
The Supreme Court of Canada, in my opinion—and whether it's shared by colleagues at this table or not, this is my opinion—was not reasonable. It was completely remote. It had no factual nexus to the offending type of behaviour by Senneville and Naud. It involved two young men, one of whom took an intimate image of his girlfriend and shared that image with the other friend. In those circumstances, the Supreme Court of Canada in its majority opinion felt the application of a one-year MMP would be contrary to section 12. As a former justice participant, I couldn't agree more.
I want to ask the Justice officials this question. During the consultation phase of the creation of this particular bill—this has been a concern of mine for some time—did you get any feedback from any active police services, police associations, Crown attorney associations and/or provincial or territorial attorneys general with respect to the built-in discretion that currently exists between policing and the Crown's office, such that if this particular scenario were ever to find itself in a real-life situation...? I can't imagine any Crown in this country, in those circumstances, agreeing to take a criminal charge initiated by a police service, proceeding by indictment in those unique circumstances and asking for a one-year mandatory minimum penalty.
The reason I say that is that it is not only my opinion but the opinion of several Supreme Court justices, including the famous retired, learned Supreme Court justice—the dean of criminal law, in my view—Michael Moldaver. He often opined in many of his decisions about the built-in residual discretion that already exists so that these crazy, whacked out hypotheticals used by judges across this country never see the light of day.
To the Justice officials, did you receive that input?