Fraser dismisses using notwithstanding clause to overturn ruling on child pornography
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OTTAWA – Justice Minister Sean Fraser has rejected calls to use the Constitution’s notwithstanding clause to overturn a Supreme Court of Canada ruling that said one-year mandatory minimum jail sentences for accessing or possessing child pornography violate the Charter of Rights.
The way forward involves policy choices and the federal government is eyeing new legislation with harsher penalties for online sexual exploitation of children, Fraser said Tuesday.
“We don’t intend to override the Constitution to fix the problem,” Fraser said before a cabinet meeting. “There’s other solutions that are apparent to us, and we’re doing the policy exercise to find the right path right now to protect our kids.”
In its ruling last Friday, the Supreme Court said although the mandatory minimum sentences for the child pornography offences contributed to denunciation and deterrence, they also removed judges’ discretion to impose sentences other than imprisonment when appropriate.
The decision affirmed a ruling of the Quebec Court of Appeal, which said the mandatory minimums breached the Charter guarantee against cruel and unusual punishment.
Alberta Premier Danielle Smith and federal Conservative Leader Pierre Poilievre expressed support for using the notwithstanding clause to overturn the Supreme Court ruling.
Ontario Premier Doug Ford has called for Fraser to use the notwithstanding clause and said Tuesday it should be used when courts go “offside,” such as in this case.
“It’s not the will of the people to sit there and say, ‘People that promote child pornography, they’re OK,'” Ford said outside a caucus meeting.
“We need to make sure that these people that are pushing child pornography — it’s disgusting, the most disgusting behaviour ever — they need to be in jail and they can rot in there all (of the) rest of their life as far as I’m concerned.”
Fraser said he doesn’t attribute political motivations or malice to anyone who wants to do more to address the scourge of child pornography in society.
“I do think there’s a broader conversation playing out about the role of the notwithstanding clause in Canadian society and the desire to ensure that legislatures obviously have the authority to make laws that serve the people,” he said.
This report by The Canadian Press was first published Nov. 4, 2025.
— With files from Allison Jones in Toronto