Mandatory minimum sentences for criminal acts don’t stand a chance in Canada. Out of 51 minimums challenged at appellate courts and the Supreme Court over the last 15 years, 39 were struck down, according to a study published this year in the Ottawa Law Review.
Why did so few survive? Because the Supreme Court allows judges to create a “reasonable hypothetical” offender to determine whether a given minimum would be shocking and grossly unfair. Even if the minimum is fair and just for the actual offender.
Yes, really. Judges have been frequently declaring minimum sentences to be cruel and unusual punishment under the Charter of Rights and Freedoms on the basis of offenders who do not exist.
Even relatively short sentences for sex crimes against minors are vulnerable. Last year, the Supreme Court struck down a one-year minimum for an adult using the internet to lure a child into sexual activity. Partly it did so on the basis of a hypothetical case of a female teacher with bipolar disorder who contacts a 15-year-old male student to discuss an assignment, and later engages in sexual activity with him on one occasion. (A more extreme version of this hypothetical happened in Nova Scotia.) The teacher would deserve 30 days served on weekends; a year would “outrage Canadians’ standards of decency.” (The actual case involved a 22-year-old man and a 13-year-old girl.)
The “hypothetical” approach comes from a 1987 case, R v Smith, in which a man was convicted of importing cocaine with a street value of up to $168,000 into Canada. The minimum sentence was seven years, which the court struck down, saying it would be grossly disproportionate if applied to the hypothetical case of a young person bringing a single marijuana cigarette into the country. The Crown argued that no prosecutor would lay a charge in that case, but future chief justice Antonio Lamer rejected the point, saying courts must not delegate their responsibilities.
We understand the principle. An unjust law for one is an unjust law for all. And there are drawbacks to minimums.
But a law’s constitutionality should not depend on an exercise of imagination. It’s too easy to throw the balance between Parliament and the judiciary out of whack by the creation of hypothetical cases.
If a minimum would be cruel and unusual punishment in an actual case before a court – sure, throw it out. And if, say, 100 cases come before the courts and a given minimum is upheld each time on the basis of the actual offender – well then, perhaps the reasonable hypothetical was not so reasonable after all in the real world in which Crown prosecutors exercise their discretion.
Besides, law should be clear and not require an advanced degree in philosophy (or gymnastics, for that matter) to explain.
As Justice Brian O’Ferrall of Alberta’s Court of Appeal wrote in a 2019 case, “Legislation ought not to be interpreted in ways which the citizen could not possibly have contemplated.” What he didn’t say is that in a populist age, this kind of exercise may invite some future federal government to use the Charter’s notwithstanding clause.
Justice O’Ferrall was writing in a classic case of hypotheticals: a man convicted of shooting bullets from a hunting rifle through the walls of a house, and facing a four-year minimum. The trial judge had accepted a hypothetical scenario of a person using a BB gun, which would not penetrate a house, and struck down the minimum as cruel and unusual punishment. (Again we say, yes, really.)
Once the minimum was gone, the judge gave Mr. Hills 3½ years. After the appeal court rejected the concept of the hypotheticals (two of the three judges mocked Supreme Court precedent), the Supreme Court insisted on it.
Parliament could create a safety valve by allowing judges discretion to set aside a minimum in exceptional cases. Britain uses this approach, which may explain why reasonable hypotheticals are not deployed in its courts. But governments, perhaps understandably, do not want to weaken the message they wish to send by creating the minimums.
A future government might try to restore some of the minimums tossed out by either the governing Liberals or the judges. When push comes inevitably to shove, is it too much to ask the judges to adopt an approach that leaves less room for the imagination, and more for actual, existing people?