The members of Canada’s Supreme Court have such wonderful imaginations. They are able to look at the facts of a case – or a couple, as recently brought before them regarding prison sentences for accessing and possessing child pornography – and invent an entirely unrelated and far-fetched scenario in order to strike down a mandatory minimum sentence as unconstitutional. It’s an impressive exercise: one that risks undermining the legitimacy of the Court in the eyes of the public (or further undermining that legitimacy, depending on one’s perspective) with just one creative-writing assignment. Because if the Supreme Court can simply fabricate any scenario it wants, no matter how tenuously related to the actual case before it, and use that invented case to strike down law, then no law could possibly survive a Supreme Court challenge.
