Poilievre says he’d invoke notwithstanding clause to overturn ruling on child porn sentences

conservativist Leader capital of south dakota Poilievre says if elected he’d habituate the notwithstanding clause to bowl over fri’s ruling from the Supreme Court striking down mandatory minimums for accessing or possessing child pornography.

Friday’s decision deeming those one-year prison sentences unconstitutional not only split the bench 5-4, but has received swift backlash from provincial and federal leaders.

“My future government will introduce mandatory prison sentences for possession of child pornography so that dirtbags like this go away for a very long time.” 

Section 33 of the Charter — known as the notwithstanding clause — allows for provincial or federal legislation to override certain Charter rights for a five-year period.

Poilievre calls Supreme Court minimum sentencing ruling 'wrong-headed'

It’s unclear when the next federal election will be called. Canadians went to the polls in April, but with Prime Minister Mark Carney’s Liberals forming a minority government they could be brought down if they don’t get enough votes on their upcoming budget.

The Supreme Court was asked to weigh in on an appeal from Quebec involving two separate cases involving child pornography offences. 

In both cases, the men pleaded guilty to having hundreds of images of children, in one case as young as three years old, being abused. Both of them challenged the mandatory minimum sentences for their crimes arguing they were unconstitutional because they could lead to grossly disproportionate punishment.

The sentencing judge in Quebec decided in their favour and the Crown appealed all the way up to the Supreme Court. 

The question before the Supreme Court was whether the one-year prison sentence for accessing and possessing child pornography set out in the Criminal Code violated the Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

The top court said it was only weighing the constitutionality of the mandatory minimum sentences, and not whether the sentences imposed on the two men were appropriate. 

Writing for the majority, Justice Mary Moreau argued there’s a range of circumstances that could lead to convictions of possession or access to child pornography.

“They capture both the well‑organized offender who, over the years, has accumulated thousands of files showing prepubescent victims, and the young 18‑year‑old offender who, one day, keeps and views a file showing a 17‑year‑old victim that was sent to the offender without them having requested it,” the decision read.  

Moreau wrote that “in the age of digital communication” that last scenario “is not uncommon.” 

Poilievre said "the Supreme Court needs to get away from these imaginary scenarios."

"Their conclusion actually should have been that the sentence should have been met much more than the one year and nine months that the two dirtbag offenders received," he said.

"Frankly, if I had my way as a father, I would lock them up and throw away the key. "

Writing for the dissenting voices, justices Richard Wagner and Suzanne Côté said they would have allowed the appeal. 

“The censure of society and the law must be reflected consistently and rigorously in the sentences imposed on offenders who are guilty of sexual offences against minors,” they wrote.

“Through the imposition of more severe sentences, the justice system expresses society’s deep and rightful indignation.”

Other Conservatives were also swift to condemn the majority’s decision.

Ontario Premier Doug Ford called on the government to invoke the notwithstanding clause.

"These people are predators. Disgusting scumbags who prey on children belong behind bars for the rest of their miserable lives," he said on social media.

"The notwithstanding clause was designed to protect the will of the people."

Calling the majority decision "outrageous,” Alberta Premier Danielle Smith also called for the notwithstanding clause to be used.

“The possession of child pornography is a heinous crime, and even a one-year minimum sentence is already far too lenient,” she wrote.

Saskatchewan Premier Scott Moe also weighed in.

"If you ever wonder why I am so adamant that elected legislators, not unelected judges, should be the ones making the laws read [this] story," he posted.

It's not the first time Poilievre has vowed to use the controversial clause to override the Supreme Court.

During the spring campaign, he promised to invoke the clause to impose consecutive life sentences on multiple murderers. The top court ruled in 2022 that imposing consecutive life sentences violates an offender's Charter rights.

The clause has been used at the provincial level, including by Saskatchewan, Quebec and Ontario, but no federal government has ever pulled the legal lever.

A spokesperson for Attorney General Sean Fraser's office said they are reviewing the ruling's implications "carefully."

“Crimes that exploit or abuse children are among the most serious and reprehensible in our society," said the spokesperson, Lola Dandybaeva, in an emailed statement.

"Plain and simple: child abusers should face the toughest penalties Canadian law allows."

Friday's decision adds to a growing pile of cases where the Supreme Court has struck down mandatory minimums.

Moreau wrote that mandatory minimum sentences don’t necessarily violate the Charter. However, “the sentence is constitutionally vulnerable because it leaves no choice but to impose a grossly disproportionate sentence on certain offenders,” she wrote.

The Canadian Centre for Child Protection, which acted as an intervenor in the case, said it wasn't surprised by the decision "given other jurisprudence surrounding the constitutionality of mandatory minimum sentences in previous years.

"The decision is helpful in its acknowledgement of the increased prevalence of [child sexual abuse and exploitation material] and its general harm to victims and communities, including the growing threat of AI technology," it said in a statement.

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