The Supreme Court invented its first hypothetical offender in 1987. The offender has come up in hundreds of criminal cases since then.Sean Kilpatrick/The Canadian Press
Nearly 40 years ago, a Supreme Court judge created an imaginary offender to test whether a mandatory minimum jail sentence was unconstitutionally cruel. Since then, this Zelig-like character has popped up in hundreds of criminal cases, obliterating legislated minimum punishments effortlessly along the way.
In the latest and strangest such case to reach the Supreme Court of Canada, the imaginary offender had developed emotions. To speak plainly, he was in love.
Inexplicable though it seems, we shall explain.
The case, called Quebec v. Denis, involved a mandatory minimum jail term of six months for a man who tried to buy the sexual services of a 16-year-old girl. The question for the Supreme Court: Should such a punishment be considered cruel and unusual treatment under Section 12 of the Charter of Rights and Freedoms? The answer depended on whether the judges viewed six months as grossly disproportionate, defined as shocking to the conscience of Canadians.
The judges had to decide not only whether six months was grossly disproportionate for the offender, Mario Denis, but whether it would outrage Canadians if applied to a hypothetical offender in reasonably foreseeable circumstances.
Why? Precedent. In 1987, the Supreme Court invented its first hypothetical offender – a youth bringing a single marijuana cigarette over the border. The minimum was seven years. The actual case before the court involved a man who brought a massive amount of cocaine. No matter.
The court struck down the punishment, saying that an unjust law should not stay on the books. Decades later, when the Conservative government of Stephen Harper added scores of mandatory minimums, the imaginary offender would appear, no doubt smiling, in courts across the country, ready to plead his (and occasionally her) case for mercy.
Supreme Court upholds Harper-era mandatory minimum for a sex crime against minors
Which brings us to Quebec v. Denis. Mr. Denis’s lawyer proposed a hypothetical scenario of an 18-year-old man who has romantic feelings for a sex worker under the age of 18. He agrees to pay her for sex. (Mr. Denis was 60, and had never met the 16-year-old, because she didn’t exist; she was the creation of a police sting.)
The Quebec Court of Appeal accepted the lawyer’s hypothetical, and struck down the minimum. (At the same time, it affirmed a lower court’s six-month sentence for Mr. Denis.)
Up till this case, the imaginary offender had been drawn as a collection of characteristics. A young female schoolteacher with bipolar disorder who uses the internet to lure a 15-year-old boy to engage in sexual contact. (Because of her, the Supreme Court struck down the one-year minimum for child luring.) A licensed gun owner who stores his gun and ammunition safely, though in a residence not covered by the licence. (Because of him, the Supreme Court struck down the three-year minimum for illegal gun possession.) But now, approaching middle age, the imaginary offender had learned to ... love? And the courts were now duty-bound to consider the invented creature’s imaginary feelings?
If anything highlights the illegitimacy of the entire reasonable-hypothetical project, it is the decision of a respected, senior court to consider the supposed romantic feelings of a young man who doesn’t exist.
Thankfully, a 7-2 majority of the Supreme Court wasn’t buying it. It said the feelings were designed to make the imaginary perpetrator sympathetic. It also made the important point that children should never be described as sex workers; doing so conceals the very vulnerability that made them turn to commodifying their bodies. Taking a blue pencil to the Quebec appeal court’s scenario, the majority was left with an 18-year-old who offers to buy sex from a younger friend. That person, the majority said, would deserve five months; six was not grossly disproportionate. (The two dissenters, for their part, offered a hypothetical of their own: an offender who agrees to buy the sex, but doesn’t go through with it.)
The public expects law to be about facts and analysis. Are they to be faulted for believing decisions should be grounded in reality, not creative writing?
Anyway, it’s all over for the ubiquitous troublemaker. The Liberal government has brought in a law that would give judges some discretion to avoid mandatory minimums, thus making the reasonable hypotheticals all but unnecessary.
The imaginary offender lived like a hellion, and never seemed to learn his lesson. The shock to the conscience of Canadians was that he lived at all.