Ottawa Won’t Use Notwithstanding Clause to Reverse Court Ruling Against Mandatory Child Porn Sentences: Justice Minister

Minister of Justice and Attorney General of Canada Sean Fraser speaks at a news conference on a new bill aimed to address hate crimes, on Parliament Hill in Ottawa, on Sept. 19, 2025. The Canadian Press/Justin Tang

Justice Minister Sean Fraser says the Liberal government will not use the notwithstanding clause to override a recent Supreme Court decision that said one-year mandatory minimum sentences for possessing or accessing child pornography are “unconstitutional.”

Fraser told reporters in Ottawa ahead of a cabinet meeting on Nov. 4 there are “other solutions” to protect children. He noted the path forward would include policy choices, but said he didn’t think overriding the Constitution was necessary.

The Liberal government will table new legislation in the coming weeks that will aim to deal with online sexual exploitation of children by imposing harsher penalties, Fraser told reporters.

Fraser’s comments follow a 5-4 Supreme Court decision released on Oct. 31 that said mandatory minimum sentences for possessing or accessing child pornography are “unconstitutional.”

Quebec Crown prosecutors brought the case to the Supreme Court, appealing a lower court decision that ruled in favour of two Quebec men who pleaded guilty to child pornography offences. The men said the mandatory sentence of one year violated their Charter right of not being subjected to “cruel and unusual treatment or punishment.”

The Supreme Court decision said although mandatory minimum sentences for child pornography offences contribute to denunciation and deterrence, they also don’t allow judges discretion to impose sentences other than jail time.

The judges said the offence can cover “a very wide range of circumstances,” from a “well-organized offender” who has “accumulated thousands of files,” to an “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.”

Ontario Premier Doug Ford told reporters outside of a caucus meeting on Nov. 4 that now “is the time” to use the notwithstanding clause, saying there is no better time than when the court goes “offside.”

“It’s not the will of the people to sit there and say ‘people that promote child pornography, they’re OK,’” Ford said after hearing Fraser’s response. He said people convicted of such offences “need to be in jail and they can rot in there all [of the] rest of their life as far as I’m concerned.”

Opposition to Court Ruling

Other Canadian politicians have weighed in on the Supreme Court decision, asking Ottawa to use the notwithstanding clause to enact new legislation.

Conservative Leader Pierre Poilievre said a Tory government would use the clause to legislate mandatory prison time for child pornography offences. He said the Supreme Court decision was “dead wrong,” in an Oct. 31 post on X.

Poilievre said in an earlier post that “child pornography material is vile,” and added that the authors, distributors, and possessors of such material “must be severely punished.”

Alberta Premier Danielle Smith called the decision “outrageous” and said “even a one-year minimum sentence is already far too lenient.” She called on the federal government to immediately invoke the notwithstanding clause to overturn the court’s ruling.

Manitoba’s NDP Premier Wab Kinew joined the Conservative leaders in condemning the court ruling, saying child pornography offences are “one of the worst things that anyone can do.”

“Not only should (you) go to prison for a long time, they should bury you under the prison,” Kinew told reporters at an unrelated event on Nov. 3. “You shouldn’t get protective custody. They should put you into general population, if you know what I mean.”

Kinew said during question period the same day “there should be mandatory minimums” for such offences, and noted that he supports the position of Poilievre, Smith, and Ford.

Fraser told reporters on Nov. 4 that while he doesn’t attribute political motivations or malice to anyone who wants to do more to address the scourge of child pornography in society, the Liberal government is looking for solutions to the problem that don’t involve using the notwithstanding clause to override the Constitution.

Chandra Philip, Jennifer Cowan, and The Canadian Press contributed to this report.