COLUMN: Think Again – This is why we have the notwithstanding clause

Is it reasonable to require everyone convicted of accessing or possessing child pornography to spend at least one year in jail?

If you answered “yes,” then you are likely one of the millions of Canadians outraged by the recent Quebec (Attorney General) v. Senneville decision. In this case, the Supreme Court ruled that the mandatory minimum sentence for child pornographers was a violation of Section 12 of the Charter of Rights and Freedoms. Specifically, a majority of the justices concluded that it was “cruel and unusual treatment or punishment” for all people convicted of accessing or possessing child pornography to receive a minimum one-year jail sentence.

Thanks to five unelected justices (it was a 5-4 decision), it has now been ruled unconstitutional to require judges to sentence convicted child pornographers to at least one year in prison. The only way to fix this mess is to invoke the notwithstanding clause. This clause, which can be found in Section 33 of the Charter, gives the House of Commons and each provincial legislature the ability to override court decisions involving Section 2 and Sections 7-15 of the Charter.

What makes the Supreme Court’s decision even more outrageous is that the case before them involved two men who had a combined 1,006 images and videos of children as young as three being sexually abused by adults. Clearly, this was no innocent mistake where someone accidentally clicked the wrong button.

Interestingly, the justices agreed that both these men deserved prison sentences for their crimes. However, the justices then went on to construct various hypothetical scenarios where a one-year prison sentence might be too harsh a punishment. In one scenario, the justices speculated about an eighteen-year-old receiving an unsolicited sext from a seventeen-year-old and keeping it on his phone for a few minutes.

The problem with these hypothetical scenarios is that they bear no resemblance to the case that was before the court. When someone is convicted of possessing child pornography, the typical offender has hundreds, if not thousands, of these files on his computer. Striking down laws because of hypothetical scenarios that aren’t even before the court is the ultimate example of judicial activism.

Let’s take a closer look at the section of the Charter that was used to strike down minimum sentences for child pornographers. Section 12 states, “Everyone has the right not be subjected to cruel and unusual treatment or punishment.”

There is no way that any of the framers of the Charter expected this clause to make it unconstitutional to require anyone convicted of accessing or possessing child pornography to serve a minimum of one year in prison. What we have right now are five justices inserting their personal judgment in place of the collective judgment of Canadians and their representatives.

This is why we have Section 33, the notwithstanding clause. This clause is a failsafe that gives elected politicians the ability to overrule egregious court decisions that do not reflect the values of Canadians.

Far from undermining our constitutional rights, the notwithstanding clause makes it possible for our elected representatives to stand up for our values. As a society, we have decided that some crimes are serious enough that prison time is always required. Since the Supreme Court struck down a law passed by our elected representatives, it is appropriate for our elected representatives to overrule this decision and restore the societal consensus that already exists.

In the end, it should be our elected representatives, not unelected judges, who get the final say over our laws. That is why we have the notwithstanding clause in the Charter and why it must be used now.

Michael Zwaagstra is a teacher and deputy mayor of Steinbach. He can be reached at mzwaagstra@shaw.ca.