Purser Law Blog

Mandatory Minimums for Sexual Offences After Bill C-16

Mandatory Minimums for Sexual Offences: What Actually Changed, and What Didn't

Mandatory minimum sentences for sexual offences against children have been struck down, reinstated, and challenged again over the past decade, and the back-and-forth can make it genuinely hard to know where the law stands on any given day. Bill C-16 changed part of this picture as of July 18, 2026. Here's what shifted, and just as importantly, what a mandatory minimum does and doesn't mean for someone facing a charge right now.

What a Mandatory Minimum Actually Is

A mandatory minimum sets a floor, not a ceiling. If a judge convicts someone of an offence that carries one, the sentence cannot go below that floor no matter how sympathetic the circumstances, even where a judge would otherwise have imposed something lower. That rigidity is exactly what has made mandatory minimums a repeated target of Charter challenges: a floor set for the worst version of an offence can end up grossly disproportionate when applied to someone whose conduct barely qualifies for the charge at all.

The Cases That Struck Mandatory Minimums Down

The Supreme Court of Canada has found several mandatory minimums unconstitutional under section 12 of the Charter (the right not to be subjected to cruel and unusual punishment), using what's called the "reasonable hypothetical" test. The Court considers not just whether the minimum would be a fit and proportionate sentence for the offender in court, but whether the minimum sentence would be grossly disproportionate for a reasonably foreseeable, less culpable person who could also be convicted of the same offence.

On that basis, the Court struck down the 3 year mandatory minimum for possessing a loaded prohibited firearm in R v Nur, 2015 SCC 15, the 1 year minimum for repeat drug trafficking in R v Lloyd, 2016 SCC 13, the 4 year minimum for discharging a firearm into a place in R v Hills, 2023 SCC 2, and, most relevant here, the mandatory minimums for child luring under section 172.1 in R v Bertrand Marchand, 2023 SCC 26. That decision directly informs what Bill C-16 has been implemented to address.

What Bill C-16 Changed

According to the Government of Canada's own release, Bill C-16 restored mandatory minimum sentences across roughly 60 Criminal Code offences, including a few serious child sexual offences whose minimums had previously been struck down. Rather than simply reimposing a rigid floor and inviting the same constitutional problem, the legislation added a judicial safety valve under section 718.4 of the Criminal Code. A sentencing Justice now must impose a shorter term of imprisonment than a stated mandatory minimum punishment if, in the circumstances, the minimum punishment would amount to cruel and unusual punishment for the offender. The addition of this section of the Code is an attempt by Parliament to legislate around the "reasonable hypothetical" jurisprudence while reviving mandatory minimum punishments for offences previously held to be unconstitutional.

The Supreme Court Is Still Actively Working This Out

This isn't settled law sitting quietly on the books. Bill C-16 only came into effect on July 18, 2026. Whether the re-imposition of many previously ruled unconstitutional mandatory minimums is constitutional through the creation of s.718.4's safety valve will certainly need to be determined by the courts. Those arguments are made at sentencing and, where a sentencing judge gets it wrong, on a sentence appeal. The Supreme Court recently upheld the 6-month mandatory minimum for communicating to obtain sexual services from a minor under section 286.1(2), in a 7-2 decision in Quebec (Attorney General) v Denis, 2026 SCC 25. The Supreme Court continued a line of reasoning from R v Friesen, 2020 SCC 9, that sexual offences against children had historically been under-sentenced. However, the Supreme Court also struck down comparable minimums in Bertrand Marchand only a few years earlier. The honest takeaway is that whether a specific mandatory minimum currently applies, survives a challenge, or gets displaced by the new safety valve, depends on the specific offence and needs to be checked against the current state of the law, not assumed from what was true two or three years ago.

Why "Mandatory Minimum" Doesn't Mean "No Defence Is Worth Running"

A mandatory minimum only applies once there's a conviction on that specific charge. It says nothing about whether the Crown can prove the charge in the first place or whether a plea to a different offence without that minimum is a realistic option in each case. A defence is often more important in offences with mandatory minimums because if convicted, the sentencing options available to a sentencing judge are limited by the sentencing floor imposed in the mandatory minimum sentence. A conditional sentence order, for example, is not available for an offence that carries a mandatory minimum. That is the thinking behind how we defend sexual assault charges: the fight over whether the Crown can prove the charge is where the sentencing floor is avoided altogether.

What This Means for Sentencing Strategy

For the kinds of charges we handle, the practical effect of all this back and forth is that, whether a mandatory minimum currently applies, and whether the new grossly disproportionate exception is realistically available, must be assessed against where the law stands right now, for the specific charge and the specific facts. If you're facing a charge where a mandatory minimum might apply, Purser Law can walk through what applies to your situation today, rather than what applied a few years ago.

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