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A Criminal Mind: Despite flaws, reasonable hypothetical scenarios remain key to judicial oversight

Earlier this month, the Supreme Court heard arguments in R. v. Nur concerning the three-year mandatory minimum sentence for possessing a loaded prohibited firearm after the Ontario Court of Appeal struck down the law as cruel and unusual punishment under s. 12 of the Charter of Rights and Freedoms. This is obviously an important case, both for the narrow constitutional point at issue and for what it will say about the court’s approach to mandatory minimum sentences going forward.

We all know mandatory minimums tend to be unpopular with judges, and each year the government adds more of them to the Criminal Code. But the judicial inclination to defer to Parliament’s policy prerogative in sentencing matters is also strong.

I’ve expressed concern more than once about the Americanization of criminal justice policy under the current federal government, and mandatory minimum sentences are one aspect of that. However, for a bit of perspective, it’s heartening to compare the state of our case law in this area with that of our neighbours.

The American law under the Eighth Amendment is, frankly, a disgrace. In Harmelin v. Michigan, the Supreme Court upheld a sentence of life without parole for possession of cocaine. Justice Antonin Scalia purported to find “originalist” reasons for denying that the Eighth Amendment had anything to do with proportionality in sentencing. Imprisonment, according to this view, can never be cruel and unusual, no matter the duration. Then in Lockyer v. Andrade, the court upheld a three-strikes law that sent a person to prison for the rest of his life for stealing five videotapes from a Kmart. The dry legalism of the majority opinion, written by Justice Sandra Day O’Connor, reveals a stunning indifference to the casual infliction of disproportionate suffering by the state.

Fortunately, our court didn’t buy this approach as it took a robust approach to s. 12 in its initial foray into the area in the 1987 case of R. v. Smith. The court struck down a seven-year mandatory sentence for importing narcotics, positing the hypothetical scenario of a kid returning from spring break in the United States with a joint in his pocket. While Smith himself was a rather substantial cocaine trafficker who probably deserved at least seven years, the possibility of a more sympathetic offender receiving the same sentence was enough to push the law across the line of unconstitutionality. A few years later, in R. v. Goltz, current Chief Justice Beverley McLachlin (albeit in dissent) would have invalidated a seven-day mandatory minimum sentence for knowingly driving while prohibited. The contrast with the hands-off American approach was stark.

Realizing that few mandatory minimum sentences would survive scrutiny if the defendant could invoke any fanciful hypothetical scenarios to defeat them, the court tried to split the difference by developing the concept of the “reasonable hypothetical” in subsequent cases. Under this approach, the court can still strike down a mandatory minimum based on hypothetical facts, but they should be realistic and preferably reflected in actual decided cases. In Nur, appeal court Justice David Doherty conjured up the figure of the “otherwise law-abiding responsible gun owner” and determined that a three-year stint would be grossly disproportionate for that person, who wasn’t before the court.

I’ve always found this approach puzzling. It’s at odds with how constitutional adjudication works in nearly every other context I’m aware of. Courts are generally loath to decide constitutional issues in the abstract, and the Supreme Court has increasingly emphasized the need for claimants to develop a proper factual record at trial even where the facts are more in the nature of studies and statistics than traditional witness testimony. This makes sense, both pragmatically and in principle, as the real-world impact of an alleged Charter infringement is what matters and armchair speculation is a poor substitute for proof. We saw the power of solid facts dictating a bold constitutional result last year in Canada (Attorney General) v. Bedford.

So while watching the webcast of the Nur hearing, I wasn’t surprised that a number of judges expressed dissatisfaction with the “reasonable hypothetical” method both as a matter of practice and principle. The judges noted that deciding constitutional cases based on hypotheticals goes against the court’s clear policy of basing Charter decisions on proven facts. The chief justice observed that the methodology appears more in line with how European constitutional courts review laws prior to enactment than our own common law fact-bound approach. She also observed that lower courts have found it difficult to distinguish reasonable hypotheticals, which are fair game, from far-fetched scenarios that are out of bounds. McLachlin pointed out the approach may ignore important issues by dismissing real potential infringements as not sufficiently likely to merit scrutiny. And in my view, the methodology seems prone to encouraging judges to indulge their own biases and life experiences in deciding who counts as a suitably sympathetic imaginary offender for s. 12 purposes.

If mandatory minimums harmed only the offenders directly subjected to them, I might well consider this critique dispositive. But in reality, mandatory minimums produce systemic effects well beyond the offenders actually sentenced under them. They transfer discretion from the courts to prosecutors, making the decision of what to charge (or what plea to accept) more significant than the judge’s imposition of sentence. For every offender actually sentenced to a mandatory minimum, there are likely many others who plead guilty to something else in order to avoid it. How many of them had a plausible defence? Moreover, why should we tolerate the displacement of discretion from the relative transparency of an open courtroom to the relatively opaque setting of a prosecutor’s office?

All of this is enough to convince me that the courts need to keep considering hypotheticals in order to maintain some kind of effective judicial control over proliferating mandatory sentences. If we wait for a genuinely cruel and unusual case to come before the courts, the law has already worked unfairness into countless others. The reasonable hypothetical approach, whatever its flaws, at least provides a licence to litigate the issue in ordinary cases without needing to wait for an unusually angelic offender to walk through the courtroom door.

Better yet, the court also should consider resurrecting the doctrine of constitutional exemption. I think the court took a wrong turn in R. v. Ferguson when it decisively rejected the availability of exemptions for offenders facing a mandatory minimum. In the court’s view, allowing individual exemptions based on personal, case-specific circumstances would neuter the overall force of a law whose very point is to admit no exceptions. But I think that ignores the reality, already mentioned, that discretion is an intractable feature of the system. The only question is who gets to exercise it. Our own legal history and the sorry example of our neighbours to the south demonstrate to me that our system functions best when the law vests that discretion in the court.

Matthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He’s available at

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