Mandatory Minimum Sentencing in Canada: Nur-sing the Wounds

Sarah Chaster March 17, 2016 Criminal Law Term University of Victoria Mandatory Minimum Sentencing in Canada: Nur-sing the Wounds Note: This is a draft paper. It is made available to Community CLE registrants. This paper should not be distributed to others without the author s express permission. The author can be contacted at sarah.chaster@gmail.com.

1 Table of Contents Introduction 2 Part 1: An Overview of Mandatory Minimum Sentencing 3 1. An Overview of Sentencing in Canada....4 2. The History of Mandatory Minimum Sentences.5 3. Academic Reaction to MMS: Social Science and Political Optics 6 Part 2: From Smith to Nur Cruel and Unusual Punishment 11 1. Section 12 and the Reasonable Hypothetical...14 2. Gross Disproportionality: A Workable Threshold?...18 3. Prosecutorial Discretion and Hybrid Offences...21 4. What Remedy? 25 5. Nur: Success and Failure.27 Part 3: Constitutional Frailties and Future Reform.29 1. Section 7: The Arbitrary Nature of MMS...29 2. Section 15: Substantive Inequality in MMS.36 3. Section 1: Deference and Dialogue.39 Conclusion: Looking Forward and Legislative Exemption Clauses...41

2 Introduction For the first time in nearly thirty years, the Supreme Court of Canada 1 struck down a mandatory minimum sentencing provision in the April 2015 decision of R v Nur. 2 The tension between a proliferation of mandatory minimum sentences 3, coupled with an increasingly restrictive approach to the section 12 Charter analysis commonly used to challenge minimum sentences, finally came to a head. After decades of failed constitutional challenges, the Court accepted that a mandatory minimum sentencing provision constituted cruel and unusual punishment, and struck it down as being of no force and effect. The future of MMS in Canada remains unclear. Does Nur augur a turning point for the continued survival of MMS in our justice system, or does it reinforce the status quo? In seeking to ascertain the state of MMS in Canada, 4 I will briefly engage with the evolution of MMS and some of the prolific academic commentary on their use. I will then examine how Nur altered or upheld existing principles in the s. 12 analysis. Finally, I will consider the constitutional frailties of these sentences beyond s. 12 and possibilities for future Charter challenges. Ultimately, this paper seeks to demonstrate that, though a politically appealing device on their surface, mandatory minimum sentencing provisions are a crude and undesirable tool in our sophisticated sentencing process. Courts must be more activist in examining the underlying justifications, and unintended consequences, of MMS. I suggest that a direction from the Court, that MMS must be accompanied with a legislative exemption clause to pass constitutional muster, would be the best and easiest outcome 1 Hereinafter, the Court. 2 R v Nur, 2015 SCC 15, 1 SCR 773 ( Nur ). 3 Hereinafter, MMS. 4 A brief introductory comment on the scope of this paper is warranted. I will be addressing mandatory minimum sentences of imprisonment only, and will not consider other mandatory penalties such as fines, prohibitions, or periods of parole ineligibility. I will also not be addressing arguably less controversial mandatory penalties for such offences as murder, and will limit the scope of my paper to the rapid increase in mandatory minimum sentences attaching to offences which historically did not have minimum penalties (i.e. aside from murder, high treason, etc.).

3 from a political perspective. 5 With Nur arguably changing the landscape of MMS, and the Court s decision of R v Lloyd 6 waiting in the wings, time will soon tell whether the Court will use this momentum to send a clear message to Parliament and the public on the constitutional infirmities of MMS. Part I: An Overview of Mandatory Minimum Sentencing Mandatory minimums have existed as a sentencing device since our Code was first enacted in 1892. However, their use has exploded in the last twenty years and is increasingly the subject of much debate and controversy. Mandatory minimum sentences have been described by the Court as a forceful expression of government policy in the area of criminal law and a clear statement of legislative intent. 7 They are not in themselves unconstitutional, and have been historically upheld by the Court as a harsh but acceptable sentencing device and statement of policy in a particular sphere. However, mandatory minimum sentences have also been denounced by the Court as devices which by their very nature have the potential to depart from the principle of proportionality in sentencing, which function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences and which may, in extreme cases, 5 While the outright abolition of MMS has been recommended by the Canadian Sentencing Commission, as explored later in this paper, this would be a difficult task politically. I suggest that the insertion of legislative exemption clauses would be the easiest outcome from a political perspective. 6 R v Lloyd 2014 BCCA 224, [2014] BCWLD 4234; leave to appeal allowed (SCC, Apr. 30, 2015); appeal heard (SCC, Jan. 13, 2016); judgment reserved ( Lloyd ). The Court s decision in Lloyd will hopefully clarify several issues in the s. 12 analysis, including whether a court must find an inflationary effect on the sentence of the person bringing the s. 12 challenge in order to consider the constitutionality of the MMS, (i.e. is it wrong for a sentencing court to ignore a reasonable hypothetical?) and whether a provincial court has the jurisdiction to issue a formal declaration that a provision is of no force and effect. This outcome is important because a review of the lower courts treatment of these issues in the British Columbia context shows a problematic divergence of approaches: see, for example, R v Veinotte, 2016 BCCA 21, [2016] BCJ No 179; R v Dickey, 2015 BCSC 191, [2015] BCJ No 223; R v Craig, 2013 BCSC 2098, [2015] BCJ No 1728; R v Q (EM), 2015 BCSC 201, [2015] BCJ No 229; R v Sajadim 2014 BCPC 256, [2014] BCJ No 2759; and R v Hammerstrom, 2014 BCSC 1201, [2014] BCJ No 1354. 7 R v Nasogaluak, 2010 SCC 6 at para 45, [2010] 1 SCR 206 ( Nasogaluak ).

4 impose unjust sentences 8 Given the clear tension between these statements, what do we know about MMS and the debates over their use? 1. An Overview of Sentencing in Canada Sentencing in Canada is governed by Part XXIII of the Criminal Code. The fundamental purpose of sentencing is set out in s. 718 as follows: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct [ ]; to deter the offender [ ]; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders 9 This melange of sentencing objectives coalesces in different ways, depending on the specific offender, the nature of the offence, and societal pressures of the day. It is accepted that the relative weight of factors will vary, and that at times one or more objectives will supersede others 10. For example, mandatory minimum sentences clearly reflect a prioritization of denunciation and deterrence at the expense of rehabilitation. The fundamental principle of sentencing assumes a central focus in s. 718.1: a sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. 11 By virtue of codification, proportionality is a focal point in the sentencing process, tied to the fundamental purposes and objectives sentencing as set out in s. 718. As held by Lebel 8 Nur, supra note 2 at para 44. 9 Criminal Code, RSC 1985, c C-46, s 718. 10 Canadian Encyclopedic Digest, Sentencing I.i.(a) at para 1 ( CED ). 11 Criminal Code, RSC 1985, c C-46, s. 718.1.

5 J (as he then was) in R v Ipeelee, proportionality is the sine qua non of a just sanction. 12 Proportionality embodies the just deserts philosophy of sentencing in that a given sentence must reflect the gravity of the offence, responding to the objective of denunciation, while remaining appropriate relative to the moral blameworthiness of the offender, thereby responding to the need for restraint. 13 Within the bounds of constraints imposed by proportionality, as well as mandatory punishments imposed by Parliament, trial judges enjoy broad discretion and considerable deference on appellate review. 14 Therefore, despite the increasing use of mandatory punishments such as fines, prohibitions and periods of incarceration, sentencing in Canada has always been a highly individualized process. 15 2. The History of Mandatory Minimum Sentences The proliferation of MMS is a relatively recent phenomenon. When the Criminal Code of Canada was enacted in 1892, few offences carried a minimum penalty. 16 Rather, maximum penalties were used to set the upper limit, leaving broad judicial discretion as to the length and severity of the sanction under the maximum. Thus, the Canadian Sentencing Commission noted that, in 1892, mandatory minimum penalties were the exception to [the] rule. 17 Although mandatory minimum sentences are often attributed to the tough on crime stance of our recent Conservative federal government, their steady increase in fact began with the Liberal 12 R v Ipeelee, 2012 SCC 13 at para 37, [2012] 1 SCR 443 ( Ipeelee ). 13 Ipeelee, supra note 11 at para 37. 14 R v M (CA), [1996] 1 SCR 500 at para 90, 105 CCC (3d) 327. 15 CED, supra note 10 at para 1. 16 In 1892, most offences did not carry a minimum penalty, except those the most serious offences such as murder and high treason. See Sentencing Reform: A Canadian Approach, Report of the Canadian Sentencing Commission, February, 1987 ( CSC ). 17 Ibid at 176.

6 Government in the 1990s and the use of MMS as part of a strict approach to gun control. 18 In 1987, there were only nine mandatory minimum sentences on the books in Canada. 19 The Firearms Act of 1995 imposed additional mandatory penalties for numerous firearms-related offences 20, with a further flourishing of MMS under the Conservative government through such legislative enterprises as the Safe Streets and Communities Act. 21 By the end of 2012, there were nearly one hundred mandatory minimum sentences between the Criminal Code and the Controlled Drugs and Substances Act. 22 While MMS are still the exception to the rule, their rapid burgeoning in Canadian criminal policy has made them increasingly controversial. 3. Academic Reaction to MMS: Social Science and Political Optics Our examination begins with the following premise: MMS are not in themselves unconstitutional. 23 Standard penalties are the exclusive prerogative of Parliament 24, and in the absence of a clear legislative exemption or successful challenge on constitutional validity, sentencing judges are bound to follow these legislative precepts. Although mandatory sentences have increasingly been the target of controversy and rigorous challenge, the debate is by no means one-sided. For example, Clewley and McDermott in The Practitioner s Guide to Sentencing accept that the increasing trend towards mandatory minimum sentencing is certainly tough on crime in its retrenchment of judicial discretion and requisite prison sentences. However, 18 R v Morrisey, [2000] 2 SCR 90, 148 CCC (3d) 1 at para 70 ( Morrisey ). 19 Debra Parkes, From Smith to Smickle: The Charter s Minimal Impact on Mandatory Minimum Sentences, (2012), 57 SCLR (2d) at 149. 20 Morrisey, supra note 18 at para 70. 21 Safe Streets and Communities Act, SC 2012, c 1. 22 Parkes, supra note 19 at 149. 23 For further discussion on this point, see R v Smith (Edward Dewey), [1987] 1 SCR 1045, 34 CCC (3d) at para 97 ( Smith ). 24 CED, supra note 10 at 2.

7 the authors opine that as the mandatory minimums are applied to very serious criminal conduct it is hard to argue that the penalties imposed are unfit. 25 They conclude that minimum sentences are a legislative prerogative: The message intended to be sent by the imposition of mandatory minimum sentences of imprisonment for these offences should be quite clear: society and Parliament alike regard such conduct as being particularly dangerous and thus deserving of a clear measure of their denunciation and deterrence. 26 Mandatory minimums are thus perceived as a forceful expression of Parliamentary opinion, and a harsh but valid sentencing device. Those writing in support of MMS argue that judicial discretion has never been unfettered, and that legislators have long relied on mandatory sentencing tools to achieve uniformity in the sentencing of offenders. 27 In this sense, MMS operate as a bastion against the idiosyncrasies of the sentencing judge. As the Court has held, a key objective of mandatory minimum sentences is the removal of judicial discretion in pursuit of greater certainty and consistency in sentencing. 28 MMS are thus perceived as ensuring, rather than inhibiting, the pursuit of justice by contributing to certainty and predictability in the rule of law. 29 In legislating a minimum sentence, Parliament has presumably asked the following question: What sentence would be appropriate for the least morally culpable person whose behaviour still constitutes the elements of the offence? 30 In this endeavour, Parliament must perform a nuanced, multi-faceted policy analysis of the moral status of the behaviour in question. 31 These arguments display a placement of trust in Parliament over the judiciary. Essentially, a defence of the mandatory minimum sentence raises the following question: why ought the courts hold the proverbial reins in the 25 Gary Clewley, Paul McDermott and Rachel Young, Sentencing: A Practitioner s Guide (1995) at 1-13. 26 Ibid. 27 Lincoln Caylor & Gannon Beaulne, Parliamentary Restrictions on Judicial Discretion in Sentencing: A Defence of Mandatory Minimum Sentences, (2014) Macdonald-Laurier Institute at 2. 28 R v Ferguson, 2008 SCC 6, [2008] 1 SCR 96 at para 54 ( Ferguson ) and Smith, supra note 23 at para 21. 29 Caylor et al, supra note 27 at 16. 30 Ibid. 31 Ibid

8 sentencing process? Parliament is democratically accountable to the Canadian public. The enactment of mandatory minimums is a direct legislative response to what some argue are the most serious issues of the day. 32 Understood in this way, is the passage of mandatory minimums not an iterative, vital, and fundamentally part of our democratic process? These arguments have contributed to a long period of deference to Parliament and minimal judicial intervention in the context of MMS. However, offsetting this view on the legitimacy of mandatory minimum sentences is a fervent protest emerging from the academic community. Indeed, mandatory minimum sentences have been denounced in Canada for decades. In 1987, the Canadian Sentencing Commission issued the most extensive and comprehensive Report on Sentencing, which recommended the outright abolition of mandatory minimum penalties for all offences in Canada, with the exception of murder and high treason. 33 Put briefly, the most salient concerns raised by the Commission turned on unfettered prosecutorial discretion, the low deterrent effect of mandatory penalties, and the fact that mandatory minimum sentences do not reflect the reality of the wide range of circumstances in which offences are committed and in which offenders find themselves. 34 Over half of sentencing judges surveyed by the Commission felt that minimum penalties constrained their ability to impose a just sentence. Over half also believed that such sentences contributed to inappropriate agreements between Crown and defence counsel. 35 The message of the Commission was clear: mandatory minimum penalties create at least as many difficulties as they attempt to solve. 36 32 However, the recent enactment of numerous mandatory minimum sentences for various drug related offences in the Controlled Drugs and Substances Act might contradict this point, given what many perceive as the relatively minor nature of these offences. 33 CSC, supra note 16 at 189. 34 Ibid at 65. 35 Ibid at 180. 36 Ibid at 66.

9 Since 1987, though increasing in volume, the essence of complaints against mandatory minimum sentences remains fundamentally unaltered. Beyond their constitutional frailties, MMS continue to be seen as a flawed policy device which, though purportedly responding to valid problems, result in a Hydra-like leaping up of new problems where their shadow is cast. Lightly unspooling some of the massive body of evidence 37 over the last fifty years accumulated on MMS exposes the following common threads of complaint. Mandatory minimum sentences increase costs on an overburdened justice system by leading to higher rates of incarceration. The recent spike in MMS will lead to costs in increased trial frequency and Charter challenges. 38 Among their many unintended consequences, they reduce transparency and accountability in the sentencing process by shifting discretion from judges to prosecutors. They spawn a real possibility of wrongful convictions by increasing the pressure on offenders to plead to a lesser included offence in order to circumvent a mandatory minimum sentence. They distort the sentencing process by creating an inflationary floor, where the mandatory minimum is reserved for the best offender in the best circumstances. Consequently, this leads to longer sentences overall for a given offence. And they have been assailed as a cause of substantive inequality by disproportionately affecting certain marginalized populations. 39 Ultimately, MMS are criticized as a flawed device, rooted in a deep distrust of the judiciary, which appeals to a seductive but spurious philosophy that a mandatory minimum sentence can be a fit and fair sentence in all cases for a given offence. 37 Parkes, supra note 19 at 151. 38 This is likely to occur because more accused persons will go to trial now that guilty plea negotiations for a sentence below the mandatory minimum are no longer possible. Further, the dramatic spike in MMS particularly for drug related offences will likely result in increasing Charter challenges to the nature of these provisions. 39 For a more detailed examination of these arguments, see Parkes, supra note 19; Rosemary Cairns Way, A Disappointing Silence: Mandatory Minimums and Substantive Equality (2015) 18 CR-ART 297; Pivot Legal Society, Throwing Away the Keys: The Human and Social Cost of Mandatory Minimum Sentences (2013); and Kent Roach, Matthew Estabrooks, Martha Shaffer & Gilles Renaud, Reducing Expectations While Maintaining the Function of Canadian Criminal Law (2015) 62 CLQ 274.

10 Finally, in addition to these unintended consequences, MMS purportedly fail to achieve what has been posited as their central objective and most frequently cited justification: deterrence. 40 The tenuous link between the severity of sentence and deterrent effect has been challenged to the extent that Anthony Doob and Cheryl Webster have called it a null hypothesis. 41 After an exhaustive review of social science evidence and literature, they posit that sentence severity does not affect levels of crime. 42 Given the dearth of any evidence to the contrary, it is difficult to ignore the proposition that severe sentences simply do not deter crime to any greater extent than less severe senteces. I will argue, as did Doob and Webster, that we must grapple with this evidence to explore the real utility and consequences of MMS, rather than sheltering their continued use behind the cracked shield of deterrence. This brief review of opinions on MMS reveals a turbulent and deeply ruptured state of the law. On the one hand, they are viewed as a severe but not inherently unconstitutional tool, which has properly resulted in decades of curial deference to their challenged use. On the other, they are seen as a crude instrument which hobbles judicial discretion, threatens proportionality as a fundamental principle of sentencing, and are simply bad policy. Academic commentary properly reveals a clarion call for deeper consideration, at a judicial and legislative level, into their continued presence in Canadian criminal justice. Armed as we now are with an understanding of MMS in their theoretical context, we can turn to their treatment by the Court, the nature of dialogue between courts and Parliament in this sphere, and possibilities for future reform. 40 For further examination of this point, see CSC, supra note 16 at 182 and Smith, supra note 23 at para 20. 41 Anthony Doob & Cheryl Webster, Sentencing Severity and Crime: Accepting the Null Hypothesis (2003) 30 Crime & Just. 143. 42 For a greater exploration of this hypothesis, see arguments in Doob et al, supra note 41.

11 Part 2: From Smith to Nur Cruel and Unusual Punishment Section 12 has been the most commonly invoked Charter provision used to challenge the constitutionality of MMS. This Charter right reads as follows: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 43 The Court first struck down a mandatory minimum sentence using s. 12 in the seminal case of R. v. Smith 44. At this time, the Narcotics Control Act carried a seven year minimum sentence for the importation of narcotics, regardless of the type of narcotic at issue, the quantity imported, and whether the purpose was for trafficking or personal consumption. 45 Writing for the majority, Justice Lamer described the analytical framework to measure a s. 12 violation. The threshold was set very high; beyond being unfit or merely excessive 46, a cruel and unusual punishment must be grossly disproportionate to what would have been appropriate absent the mandatory minimum. Justice Lamer described such gross disproportionality as whether the punishment prescribed is so excessive as to outrage the standards of decency, 47 and held that courts should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation. 48 The test emerging from Smith consisted of two parts. First, a court must look to the particular offender before the court to determine whether the sentence is grossly disproportionate, based on the gravity of the offence, the circumstances and the moral blameworthiness of the offender. 49 Second, a court can engage in a generalized inquiry to determine whether a sentence would be grossly disproportionate in a reasonably hypothetical scenario. Thus, while the seven year minimum 43 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 12 ( Charter ). 44 Smith, supra note 23 at 97. 45 Ibid at para 45. 46 Ibid at para 87. 47 Ibid at para 86. 48 Ibid at para 87. 49 Ibid at para 88.

12 was not grossly disproportionate for the specific offender before the Court in Smith, it would have been grossly disproportionate for a hypothetical young offender who drove into Canada with his or her first joint of grass. 50 The mandatory sentencing provision cast too wide a net and would certainly end up imposing a grossly disproportionate sentence on a reasonable hypothetical offender at some point. 51 As such, it was struck down. Justice Lamer s use of the reasonable hypothetical in the s. 12 analysis could easily have foreshadowed increasing judicial activism in this arena. Indeed, Justice Lamer commented on the lingering reluctance 52 of courts in testing penal legislation for compliance with s. 12, and reminded them of their constitutional obligation to do so. His judgment demonstrates that the duty of courts to oversee the constitutionality of Canadian legislation does not abrogate the tradition of deference to Parliament. However, the decades following Smith surprisingly did not provide fertile ground for a flowering of jurisprudence to challenge these provisions. Rather, the intervening decades were marked by judicial minimalism in light of increasingly aggressive legislation of MMS. As Debra Parkes wrote, since Smith, the Supreme Court s approach has been decidedly deferential to Parliament and has given s. 12 little substantive content or application. 53 Indeed, as we have seen, it took 28 years before another MMS was struck down by the Court. In Nur, the Court considered mandatory minimum sentences of three and five years for the offence of possessing loaded prohibited firearms, contrary to s. 95(1) of the Criminal Code. Writing for the majority, Chief Justice McLachlin struck down the mandatory minimum sentences as violating s. 12 of the Charter, based on their application to reasonably foreseeable 50 Ibid at para 34. 51 Ibid at para 99. 52 Ibid at para 79. 53 Debra Parkes, The Punishment Agenda in the Courts (2014), 67 SCLR (2d) at 598 599.

13 cases. 54 Since s. 95 encompassed a wide range of conduct which stretched from serious firearms infractions to mere licensing transgressions, the mandatory minimum sentences would inevitably lead to grossly disproportionate sentences for those at the lower end of the moral blameworthiness spectrum. In a dissenting judgment, Moldaver J disagreed with the propriety of the reasonable hypotheticals used by the majority, and argued that the hybrid nature of the scheme acted as a safety valve to prevent grossly disproportionate sentences, since the Crown could proceed summarily in less serious cases and bypass the MMS. 55 The interplay between the majority and dissenting judgments in Nur represents an interesting cross-section of issues in the legal analysis of mandatory minimum sentence provisions. Accordingly, Nur can be used as a lens through which we can examine the evolution of s. 12 since Smith. In the next section, I will address these sub-topics, broken down in the following manner: (1) the s. 12 test and the scope of a reasonable hypothetical scenario; (2) the maintenance of gross disproportionality as the threshold for a s. 12 violation; (3) prosecutorial discretion and hybrid schemes; and (4) available remedies once a s. 12 violation has been made out. Finally, I will address what Nur fails to consider, specifically in its limited engagement with the social science evidence and consequences of MMS. Nevertheless, I will seek to demonstrate that Nur has breathed some new life into the s. 12 analysis and may well herald a turning point for the Court s future determinations of the constitutional validity of MMS. 54 Nur, supra note 2 at para 4. 55 Nur, supra note 2 at paras 146 156.

14 1. Section 12 and the Scope of the Reasonable Hypothetical Arguably, the most dramatic change made by Nur to the s. 12 analysis is its reformulation of the reasonable hypothetical requirement. Determining the extent to which reasonable hypotheticals can be used to test the validity of a mandatory minimum sentence has been a focal point of the jurisprudence since Smith. Indeed, McLachlin CJ identified this issue in Nur as the heart of the case. 56 In so doing, she firmly rooted the reasonable hypothetical analysis at the protected core of the s. 12 analysis and rebuffed arguments in support of abandoning this analytical tool. 57 I will seek to demonstrate that by rephrasing and expanding the scope of reasonably foreseeable situations against which the validity of legislation could be tested, the Court has loosened the stranglehold of an increasingly restrictive reasonable hypothetical analysis and perhaps mark an era where we will see more successful s. 12 challenges to the constitutionality of mandatory minimum sentencing. In Smith, despite striking down the impugned MMS based on a reasonable hypothetical, the Court did not provide much guidance to assessing the scope of reasonable hypotheticals in the s. 12 analysis. Courts were left with little direction as to how common, reasonable or detailed the hypothetical must be. Three years later, the Court fully explored these questions in R v Goltz 58 and, in so doing, severely tightened the availability of the reasonable hypothetical in the s. 12 analysis. Writing for the majority, Gonthier J. grudgingly accepted the use of a reasonable hypothetical in the s. 12 analysis, but emphasized throughout that courts cannot consider remote or extreme examples 59 and must instead focus on imaginable circumstances that would 56 Nur, supra note 2 at para 47. 57 Nur, supra note 2 at paras 49 52. 58 R v Goltz, [1991] 3 SCR 485, 67 CCC 3(d) 381( Goltz ). 59 Ibid at para 45.

15 commonly arise in day-to-day life. 60 Further, using the severability doctrine, the Court refused to consider other prohibitions which would trigger the same mandatory minimum sentence in the impugned provision 61. Had those other prohibitions also been considered in the reasonable hypothetical analysis, Gonthier J. conceded that the provision would admittedly cast a wider and potentially more suspect net. 62 It is logically problematic to constrain the reasonable hypothetical analysis to the extent that other prohibitions which give rise to the same mandatory minimum sentence at issue cannot feature into the Charter analysis. If the full scope of the provision casts a perilously broad net, there is no principled basis on which to exclude the provision in all of its potential applications from Charter scrutiny. 63 Ultimately, the majority decision in Goltz resulted in such a narrow and constrained approach to the reasonable hypothetical analysis that scholars concluded that it essentially became a faint hope clause, 64 rather than a vital part of the s. 12 analysis. In R v Morrisey, the Court revisited the scope of the reasonable hypothetical analysis. Writing again for the majority, Gonthier J upheld the restrictions he had imposed on the use of reasonable hypotheticals in Goltz. 65 Morrisey is particularly noteworthy for the comments made regarding the use of reported cases when crafting a reasonable hypothetical. One might think that looking to actual cases would logically lend itself quite well to the analysis. Surely something 60 Ibid at para 73. 61 Ibid at para 18. In this case, the accused had been found guilty of driving while prohibited under s. 86(1)(a)(ii) of the BC Motor Vehicle Act, contrary to s. 88(1)(a). Section 88(1)(c) mandated a minimum sentence of 7 days imprisonment and a $300 fine for driving while prohibited under ss. 84, 85, 86, or 214. However, the majority decision refused to consider reasonable hypotheticals based on other offences which gave rise to the same prohibition (triggering the MMS), thus narrowly circumscribing the availability of the reasonable hypothetical as an analytical tool. The mandatory minimum sentencing provision was not considered in all of its applications, and the reasonable hypothetical analysis was consequently tailored to only one application of the mandatory minimum sentence. 62 Ibid at para 76. 63 For deeper consideration of these arguments, see the dissenting reasons of McLachlin J (as she then was) in Goltz, supra note 58 at paras 91 112. 64 Palma Paciocco, Proportionality, Discretion, and the Roles of Judges and Prosecutors at Sentencing (2014) 18 Can Crim L Rev 241 at 10. 65 Morrisey, supra note 18 at paras 30 31.

16 which not only might reasonably occur in a hypothetical context, but has in fact already occurred, provides a useful benchmark for potentially unconstitutional applications of a sentencing provision. However, Justice Gonthier was once again very restrictive. In allowing the use of reported cases, he held they were to be used with caution and as a starting point only. 66 He justified this in part because a reported case could be one of the marginal cases, not contemplated by the approach set out in Goltz. 67 Again, this restrictive approach exhibits a logical quandary, in that events which have in fact transpired are not seen as common enough to reasonably ground the analysis. Such an approach seems certain to result in constitutional violations. 68 Finally, Gonthier J restricted the analysis by considering reasonable hypotheticals at a broad, general level of abstraction, rather than at a level of specificity which he maintained was never contemplated by Smith. 69 This restrictive approach, considering reasonable hypotheticals at a very generalized level, is problematic because there can be scenarios that, though marginal, are still foreseeable. 70 The analysis in Morrisey precludes consideration of details which would demonstrate grossly disproportionate applications of a mandatory minimum sentence, thus making a Charter challenge much more difficult to establish. Fortunately, the decision in Nur injected some much-needed flexibility into the s. 12 analysis. After dissenting in both Goltz and Morrisey, McLachlin CJ led the majority decision in Nur and made four important alterations (or clarifications) to the reasonable hypothetical analysis: 66 Morrisey, supra note 18 at para 33. 67 Ibid at para 32. 68 For further consideration of these arguments, see the reasons of Arbour J in Morrisey, supra note 18 at 65. 69 Ibid at paras 50 53. In this case, the impugned provision was a four year minimum sentence for the offence of criminal negligence causing death with a firearm. Thus, rather than looking at the specifics of actual cases resulting in this offence, Gonthier J concluded that there were two general types of reasonably hypothetical scenarios an individual playing around with a gun, and a hunting trip gone awry and concluded that in neither hypothetical would a four year term of imprisonment consist of cruel and unusual punishment. 70 R v Smickle 2012 ONSC 602, 280 CCC (3d) 365 ( Smickle ).

17 1. The requirement of common or day-to-day generality from Goltz was altered in favour of a broader test based on reasonable foreseeability 71 ; 2. A ruling that a particular provision does not violate s. 12 does not preclude future challenges to this provision 72 ; 3. Reported reported cases should be considered when determining whether an MMS might violate s. 12 as it applies to reasonably foreseeable cases 73 ; and 4. Personal characteristics can be used when constructing a reasonable hypothetical, as long as they are not tailored to create remote or far-fetched examples. 74 Ultimately, these changes in Nur will, I believe, mark a turning point in the s. 12 analysis. The Court s analysis is flexible, less restrictive, and ultimately will make it easier to demonstrate that mandatory minimum sentences can lead to cruel and unusual punishment, certainly as applied to reasonably foreseeable circumstances. 75 Scholars are not yet in agreement as to what effect, if any, Nur will have in the context of mandatory minimum sentences. Some, for example, conclude that by rephrasing the test as reasonable foreseeability, the Court is merely playing with words while making no substantive changes. As Rosemary Cairns Way put it, while thirty 71 Nur, supra note 2 at paras 67 68. 72 Nur, supra note 2 at para 71: A particular offender can at any time argue in a future case that the provision violates s. 12 in their specific contexts; further, an offender can also argue a violation based on reasonable hypotheticals if there are different circumstances or new evidence. Although stare decisis requires a significant change in the reasonably foreseeable applications of the law for courts to revisit the question, this still allows for a degree of flexibility in the evolving s. 12 analysis, and represents a broader and more generous approach to s. 12. 73 Nur, supra note 2 at para 72: Rejects the exclusion of reported cases which might seem marginal and holds there is no principled reason to exclude them on the basis that they represent an uncommon application of the offence. It is heartening to see the court tae a practical, principled and common-sense approach to the analysis here. 74 Nur, supra note 2 at paras 73 76: Again, departs from the degree of generality in Morrisey and allows the use of personal characteristics. However, it is still problematic because courts are instructed to exclude using personal features to construct the most innocent and sympathetic case imaginable. This is very subjective and there are many foreseeable situations which are sympathetic, innocent or strange (particularly in the context of drug offences, where selling drugs to fuel an addiction might result in lower moral blameworthiness). It remains to be seen how restrictive courts will be on this point. 75 I would argue we have seen this emerge in Lloyd, where the reasonable hypothetical analysis was used to insert characteristics like poverty, marginalization and drug addiction into the analysis. It remains to be seen whether the Court will be receptive to the use of such details in the reasonable hypothetical analysis.

18 paragraphs are devoted to this semantic clarification, I am not convinced that the problem is semantic. It is a problem about the nature of mandatory minimums. While I do not disagree with the underlying problems in MMS, I suggest that the change in language is important and will have repercussions on the analysis. Uncommon scenarios, though unlikely, may still be reasonably foreseeable. There is clearly a difference, as the Court stated, between what is foreseeable although unlikely to arise and what is remote [and] far-fetched. 76 Scholars such as Debra Parkes have argued that extreme cases, like R v Smickle 77, are the canaries in the coal mine that should prompt a reassessment of our reliance on counter-productive, blunt instruments such as mandatory minimum sentences. 78 However, she was writing before the Court released its decision in Nur, which seems to have broadened the availability and applicability of the reasonable hypothetical analysis. Time will tell, but I would argue that hopefully this approach means we will need to rely less on extreme cases and can rather use an expanded test based on reasonable foreseeability, incorporating reported cases and more personal characteristics, to demonstrate the scenarios where a given MMS will be grossly disproportionate and consequently violate s. 12. 2. Gross Disproportionality: A Workable Threshold? Gross disproportionality is maintained, in Nur, as the standard against which violations of s. 12 must be measured. As mentioned earlier in this paper, gross disproportionality is a terrifically high threshold to meet; it applies to punishment which is so excessive as to outrage our society s sense of decency, such that Canadians would find the punishment abhorrent or 76 Nur, supra note 2 at para 68. 77 Smickle, supra note 70. 78 Parkes, supra note 19 at 165.

19 intolerable. 79 Since Smith, the Court has accepted consideration of relevant contextual factors to assess whether a punishment is cruel and unusual, including the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case. 80 In Goltz, Gonthier J added certain other factors, including the actual effect of the punishment on the individual, the penological goals and sentencing principles at play, and the existence of valid alternatives to the sentence imposed. 81 The high bar of gross disproportionality is upheld in Nur. 82 Given that proportionality is the central axis on which the other purposes, principles and objectives of sentencing turn, it is surprising to note such a high standard dominating the s. 12 analysis. In her dissenting judgment in Morrisey, Arbour J wrote that although mandatory minimum sentences depart from fundamental principles of sentencing, the framework of the constitutional analysis is such that they must be upheld even if demonstrably unfit, as long as they are not grossly disproportionate. 83 In Nur, McLachlin CJ came to the same conclusion. 84 It seems illogical at best, verging on simply wrong, that our highest court is willing to uphold mandatory minimum sentences which are manifestly and demonstrably unfit, as long as they do not violate the high water mark of gross disproportionality. Indeed, many scholars have maligned this threshold as unreasonably high. For example, Palma Paciocco has argued for a reconfiguration of the s. 12 analysis wherein the threshold would be relaxed to require proof of mere, rather than gross, disproportionality. Given the central and fundamental role of proportionality in our sentencing process, she posits that if mandatory minimum sentencing 79 Morrisey, supra note 18 at para 26. 80 Smith, supra note 23 at para 88. 81 Goltz, supra note 58 at para 29; Morrisey, supra note 18 at para 27. 82 Nur, supra note 2 at para 39. 83 Morrisey, supra note 18 at para 69. 84 Nur, supra note 2 at para 39 and paras 44 46.

20 schemes cannot survive the honest application of [basic constitutional principles like proportionality], they should not survive at all. 85 Though her arguments are persuasive, it seems unlikely they will take root in the Court, particularly given the recent endorsement of the gross disproportionality standard in Nur. The Court has long defended the necessity of a stringent standard in s. 12, maintaining that a lesser standard would trivialize the Charter. 86 It is unlikely that the Court will now depart from this standard. However, gross disproportionality might be easier to make out if the focus of the analysis shifts somewhat. As mentioned above, the Court has explicitly held that the penological goals and sentencing principles which underlie the sentence can be examined as part of the contextual analysis for measuring gross disproportionality. Mandatory minimum sentences are by their nature driven by goals of communicating a strong denunciation, and deterring crime in what is perceived to be serious offences. However, as we have seen, increasing the severity of a sentence does not seem to make it any more likely to deter. Indeed, the Court in Nur stressed that general deterrence cannot, without more, sanitize a sentence against gross disproportionality. 87 Therefore, when arguing that an MMS violates s. 12, emphasis must be placed on the goals of deterrence underlying MMS and the improbability of their achieving this goal, supported with social science evidence. These penological goals and sentencing principles including the fundamental role of proportionality are relevant to the gross disproportionality analysis. Thus, even if the gross disproportionality standard is unlikely to change, there is space to engage with the other principles and penological goals underlying the MMS to establish whether the provision violates s. 12. 85 Paciocco, supra note 10 at 267. 86 R v Latimer, 2001 SCC 1, [2001] 1 SCR 3 at para 76. 87 Nur, supra note 2 at para 44.

21 3. Prosecutorial Discretion and Hybrid Offences Nur marked the first time the Court considered the constitutional validity of a mandatory minimum sentencing provision in the context of a hybrid scheme. 88 The ability of prosecutors to proceed summarily and thus avoid triggering an MMS raised challenging questions about the role of prosecutorial discretion in mandatory minimum sentencing schemes. Justice Moldaver set much store in regarding the hybrid nature of the impugned provision and the Crown s ability to proceed summarily where the MMS would otherwise be grossly disproportionate. As such, he argued in dissent for a different analytical framework where the prosecutorial discretion on how to proceed could be challenged for abuse of process, with a remedy under s. 24(1), rather than challenging the entire provision and striking it down under s. 52. 89 However, McLachlin CJ firmly rejected this in the majority judgment. Since Smith, the Court has rejected relying on prosecutorial discretion as a way to cure constitutional frailties in mandatory minimum sentences. 90 This reasoning was maintained in Nur for some of the following reasons: sentencing is an inherently judicial and not prosecutorial function, 91 review of prosecutorial discretion 88 As Justice Moldaver noted at paragraph 147 of his dissenting judgment in Nur, to date, our section 12 jurisprudence from Smith to Morrisey has only considered the constitutionality of mandatory minimum sentences in the context of straight indictable offences. 89 Nur, supra note 2 at paras 148 150. Justice Moldaver suggested that Parliament s decision in enacting a hybrid scheme meant the Crown could proceed summarily in less serious cases, where the mandatory minimum would not be appropriate, meaning that it would not be necessary to strike down the whole provision. Rather, he set out an alternative scheme, consisting of two stages. First, a court must determine whether the hybrid scheme adequately protects against grossly disproportionate sentences in general. Second, a court must determine whether the Crown has exercised its discretion in such a way that results in a grossly disproportionate sentence for that particular offender. If so, a remedy would like under s. 24(1) of the Charter, since the state action (i.e. the Crown s discretion on how to proceed), and not the law itself, is at issue. The remedy under s. 24(1) would most likely come in the form of a sentence reduction below the mandatory minimum. The challenge to prosecutorial discretion in this circumstance would be for abuse of process, with the burden on the offender to prove. There would be no need to prove bad faith or malicious intent on the part of Crown to establish an abuse of process, but simply that the Crown s decision to proceed by indictment undermined society s expectations of fairness in the administration of justice. 90 Smith, supra note 23 at para 101. 91 Nur, supra note 2 at para 87.

22 would be illusory given the notoriously high bar required to establish abuse of discretion, 92 and this would endanger trial fairness by giving prosecutors a significant advantage over the defence. 93 Therefore, Nur ultimately presents another small victory in the s. 12 analysis in that it firmly rejects the possible use of Crown election in hybrid schemes as a way to immunize a mandatory minimum provision from Charter scrutiny. I would argue that this is prescient given that many of the mandatory minimum sentences added in the Safe Streets and Communities Act are in the context of hybrid sentencing schemes. 94 We are likely to see increasing Charter challenges to MMS in the drug context, and Nur properly forecloses any arguments that the Crown s exercise of discretion to proceed summarily in less serious cases can shield the provision from unconstitutional applications. Beyond prosecutorial discretion specific to hybrid regimes, the general transfer of discretion from the judiciary to the prosecution as a result of MMS has been consistently regarded as deeply problematic. 95 Debra Parkes has identified this transfer of discretion from judges to prosecutors as a central problem: A very significant result of the move to mandatory minimum sentences is the wholesale transfer of discretion from judges to prosecutors. 96 This signals a lack of trust in the judiciary and a concomitant increase of trust in prosecutors, whose decisions are virtually unassailable due to the high threshold for abuse of process. 97 The recent 92 Nur, supra note 2 at para 94: The court uses language that is ironically close to similar arguments made about the standard of gross disproportionality and the fact that this has similarly immunized mandatory minimum provisions from meaningful review. It is strange that the court accepts that here, such a high bar has no place in the s. 12 analysis, but draws no similar conclusions on gross disproportionality. 93 Nur, supra note 2 at paras 95 96. 94 Safe Streets and Communities Act, SC 2012 c 1. 95 For example, in some cases, the prosecution has the discretion as to whether they will give notice and seek a mandatory minimum sentence (in certain impaired driving charges); otherwise, the prosecution may also lay inappropriate charges, without MMS, in place of appropriate offences which have unfit MMS. 96 Parkes, supra note 19 at 166. 97 Ibid.

23 decision in R v Anderson is pertinent to this context. 98 Here, an Aboriginal offender argued that, in light of the transfer in discretion resulting from a mandatory minimum sentences, Crown prosecutors ought to be constitutionally required to consider Aboriginal status when deciding whether to seek an MMS. However, the Court refused to attach any constitutional obligations to prosecutorial discretion in the sentencing context. Specifically, the Court rejected these arguments as inappropriately conflating the role of a prosecutor with that of a sentencing judge; courts cannot both supervise the exercise of prosecutorial discretion and at the same time act as impartial arbitrators. 99 Again, Palma Paciocco s criticisms of this judgment are persuasive and bear mentioning. She writes that the Court has failed to effectively enforce the principle of proportionality 100, and that given the key role played by prosecutors in deciding whether mandatory minimums will apply, the increasing number of MMS results in a huge increase in prosecutorial power. 101 Paciocco concluded that, given the division of powers in our adversarial system, it was defensible for the Court in Anderson to foreclose a s. 7 requirement that prosecutors consider proportionality when making discretionary decisions that limit the range of available sentences. 102 However, she advocates an ethical obligation that prosecutors, as ministers of justice, ought to consider proportionality when seeking mandatory minimum sentences, even if this duty does not rise to the level of a constitutional obligation. Paciocco also explicitly acknowledges the limitations in 98 R v Anderson, 2014 SCC 41, [2014] 2 SCR 167 ( Anderson ). In this case, an Aboriginal offender argued that, in light of the transfer in discretion resulting from a mandatory minimum sentence, Crown prosecutors ought to be subject to certain Constitutional obligations. Specifically, when using their discretion on whether to seek a mandatory minimum sentence, prosecutors should be under a constitutional obligation to consider Aboriginal status, as directed in s. 718.2(e) of the Criminal Code. Thus, although the Court held in R v Ipeelee at paragraph 36 that proportionality is a principle of fundamental justice, and Parliament has explicitly directed that attention be given to the unique circumstances of Aboriginal offenders in a sentencing context, these obligations cannot and do not attach to the prosecution in its exercise of discretion. 99 Anderson, supra note 98 at paras 25 and 32. 100 Paciocco, supra note 10 at 248. 101 Ibid at 251. 102 Ibid at 252.