Child Pornography and Mandatory Minimums: The Quebec Court of Appeal Expands Senneville and Sends a Mother Home Instead of to Prison

The facts, as established at trial by Judge Louise Leduc of the Court of Quebec and uncontested on appeal, are both precise and limited in time.

Isabelle Gagnon was 54 at the time of the offences. She works in the healthcare sector, is the mother of three adult daughters, and is a grandmother. No prior criminal record. Described as an exemplary mother, supported by a present family, and involved in helping people in need.

During 2019, she went through what the trial judge described as a period of intense stress and anxiety. She isolated herself, abused alcohol and medication, and adopted unusual behaviour. She joined an adult dating site called "Jalf," intended for people open about their sexuality.

Between May 20 and 28, 2019 — eight days — she came into contact with a man named Jean-François Allard, her co-accused. During that period, she sent him about ten photographs depicting child pornography. When her phone was seized by police in October 2019, around twenty photographs of children and adolescents aged 5 to 16 in suggestive or sexual poses were found on it.

Upon her arrest, she admitted the facts. She underwent 21 sessions of therapy. The pre-sentence reports concluded that she displayed no signs of sexual deviance toward children, that her conduct was an isolated departure from her usual behaviour, and that the risk of reoffending was low — even nil.

On January 10, 2024, Judge Leduc declared the one-year mandatory minimums to be of no force or effect under section 12 of the Canadian Charter of Rights and Freedoms and subsection 24(1). She ordered intermittent custodial sentences of three months on each count, concurrently, together with two years' probation including 240 hours of community service.

The DPP appealed the sentence. The application for leave to appeal was filed jointly by the DPP and the Attorney General of Quebec, but the latter sought that status as an appellant — not merely as a mis-en-cause party — to defend the constitutionality of the minimums on its own footing. That is the case the Court of Appeal then decided.

To understand the scope of Gagnon, one must look back a few months. In 2025, in Quebec (Attorney General) v. Senneville (2025 SCC 33), the Supreme Court of Canada declared invalid, under section 52 of the Constitution Act, 1982, the one-year mandatory minimum sentences of imprisonment provided for the offences of possession and accessing child pornography.

On that occasion, the Supreme Court reaffirmed an analytical method established since the rulings in Nur, Hills, and Hilbach: the validity of a mandatory minimum must be assessed both with respect to the actual offender's situation and through the lens of a reasonably foreseeable scenario. It is enough that just one of these analyses reveals a grossly disproportionate sentence for the minimum to be incompatible with section 12 of the Charter.

But Senneville did not decide the fate of the minimums for the other two offences in section 163.1 of the Criminal Code: production and distribution, considered objectively more serious (maximum sentence of 14 years rather than 10).

That is exactly where Gagnon steps in.

On this question, the Court is unanimous. Healy J.A., whose reasons are concurred in fully by Morissette and Weitzman JJ.A., concludes that the same logic developed in Senneville applies to the mandatory minimums for production and distribution.

The four offences are grouped under the same provision of the Criminal Code. They share the same legislative objectives, the same jurisprudential evolution, the same criminological reality. The fact that the maximum sentences are higher for production and distribution does not prevent the constitutional analysis from working in the same way.

The Court then adapts a reasonably foreseeable scenario drawn directly from Senneville:

In that scenario — which is neither implausible nor theoretical — the automatic imposition of a one-year sentence of imprisonment would be, according to the Court, grossly disproportionate. It would automatically rule out any other proportionate form of sanction, in particular the conditional sentence of imprisonment or probation.

The Court then applies the three criteria developed by the Supreme Court in R. v. Hills (2023 SCC 2): the variable degree of seriousness of the offence, the effects of the mandatory minimum on the offender, and the objectives pursued by Parliament in setting that sentence. On all three counts, the minimums fail the test.

Healy J.A. writes that the one-year mandatory minimum sentences for production and distribution of child pornography are incompatible with the human dignity at the heart of section 12 of the Charter. They exceed what is required to achieve Parliament's valid objectives, and they exclude any other reasonable solution, even in foreseeable scenarios where the deserved sentence would be lower.

Conclusion: the minimums are declared invalid under section 52 of the Constitution Act, 1982.

Once the minimums are invalidated, the Court must impose a fit sentence for the three offences. And this is where Gagnon becomes methodologically interesting.

Healy J.A. begins by setting aside the sentences imposed at trial. The "three-month" intermittent sentences on each count were in fact unlawful: section 732(1) of the Criminal Code caps intermittent custody at 90 days, and three calendar months exceeded that limit. The trial judge had also failed, in the operative part of her judgment, to declare the minimums incompatible with section 12 of the Charter for each of the three offences — a formal error acknowledged but with no consequence on the merits.

But more importantly, the global sentence is found to be disproportionately lenient. It does not reflect either the objective and subjective seriousness of the offences or the offender's degree of responsibility. Healy J.A. faults the trial judge for having privileged the goals of restorative justice — rehabilitation, reintegration — without giving sufficient weight to the punitive imperatives of denunciation and deterrence, which must prevail in matters of sexual offences against children since R. v. Friesen (2020 SCC 9).

The intermittent sentences are therefore set aside.

But then, why a conditional sentence rather than continuous imprisonment?

The Court finds that to be the case here. The material — about twenty photographs — was relatively limited in volume. According to Healy J.A.'s reasons, the photos had been downloaded from internet sites and were accompanied by texts that Ms. Gagnon had written herself. The distribution went to only one person. The offences lasted eight days and then stopped, with no subsequent attempt.

Above all, the evidence clearly shows that Ms. Gagnon poses no immediate or future danger to society. The risk of reoffending is low, even nil. Her rehabilitation is convincing. Specific deterrence — preventing this offender from reoffending — is not a relevant objective.

What remained was to give effect to the goals of denunciation and general deterrence. The Court finds that a conditional sentence with strict conditions achieves this.

Gagnon does not stop at deciding the sentence. It opens — and decides by majority — a technical but important debate about the architecture of public prosecutions in Quebec.

The question: when the Director of Criminal and Penal Prosecutions (DPP) brings an appeal, may the Attorney General of Quebec also be an appellant alongside the DPP, or must they be content to act as a mis-en-cause party?

This question, never before decided by the Court of Appeal, divides the panel.

For Healy J.A., concurred in by Morissette J.A., the answer is yes. The Attorney General and the DPP share the same prosecutorial power: both are designated as "Attorney General" within the meaning of the Criminal Code. The Act respecting the DPP created a functional separation, not a legal disjunction. The Attorney General may therefore seek leave to appeal in order to defend the constitutional validity of a rule of law, while the DPP argues questions of guilt and sentence.

Weitzman J.A., in separate reasons, disagrees.

For Weitzman J.A., the Act respecting the DPP effectively delegated the entire prosecutorial power in criminal matters to the DPP. The Attorney General may intervene as a mis-en-cause party, file a factum, and present arguments on constitutional questions. But the Attorney General cannot be an independent appellant unless they formally take over the case under the procedure provided in section 23 of the Act — which involves giving notice to the DPP.

The debate is more than theoretical. It touches on the boundary between the institutional independence of the DPP — established in 2007 precisely to insulate public prosecutions from political influence — and the ultimate constitutional responsibility of the Attorney General as the State's chief legal officer.

On this specific question, the majority prevails 2-1. The Attorney General is authorized to act as a party-appellant. But Weitzman J.A.'s separate reasons are documented and motivated in detail. They signal that disagreement exists within the Court itself as to the correct interpretation of the architecture of public prosecutions in Quebec — a disagreement Weitzman J.A. herself describes as "essentially theoretical" in this case, since it has no effect on the analysis of the constitutionality of the minimums or on the substituted sentence. But on the underlying institutional point, the question remains open for future cases.

Gagnon says clearly three things.

First, the federal legislative effort to impose one-year mandatory minimums on every child pornography offence has just collapsed almost in its entirety. With Senneville (possession and accessing) and now Gagnon (production and distribution), the four offences in section 163.1 of the Criminal Code no longer have a binding mandatory minimum sentence in Quebec.

Second, the post-Friesen case law that had made continuous imprisonment the near-absolute rule in child pornography matters has just been nuanced. The conditional sentence remains exceptional — that is what the Court explicitly repeats — but it becomes possible in specific cases: limited material, brief duration, exemplary offender profile, no risk of reoffending, serious therapeutic involvement.

Third, the Attorney General's place in criminal appeals has just been clarified — at least for now. But Weitzman J.A.'s separate reasons suggest that the debate is not definitively closed.

But the judgment also says very clearly what it does not say.

It does not say that child pornography is a minor offence. Throughout his reasons, Healy J.A. on the contrary recalls the absolute seriousness of this type of offence, the grave and permanent harm caused to victimized children, and the need for sentences to underscore denunciation and deterrence.

It does not say that the conditional sentence becomes the new norm. The norm remains continuous imprisonment. The Court insists: any departure from this norm must be "justified by sufficient and convincing reasons." [Translation]

It does not say that offenders in child pornography matters will henceforth escape real consequences. House arrest for nine months, followed by a strict curfew for three months, followed by a two-year probation order including 240 hours of community service, is not an absence of punishment. It is a substantial deprivation of liberty.

What the judgment does say is that Parliament cannot, by legislative decree, strip judges of the ability to individualize the sentence when the circumstances justify it. It is a constitutional message — not a message of leniency.