Mandatory Minimum Sentences and s. 12 of the Charter

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Wednesday, March 22, 2023
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This blog post is part of a series on “SCC Decisions and more” written by CIAJ’s collaborator James Hendry. Read all his posts here.

The Supreme Court of Canada recently struck down a four-year mandatory minimum sentence for discharging a firearm into a home in Hills (here). Though Hills admitted that the mandatory minimum was warranted in his case, he argued that the law might be applied to someone who did not deserve it. Parliament had repealed the mandatory minimum in his case after his appeal was heard, but the Court idealistically said that this legislative development would not affect his case (para. 7). The Court went on to reassert and refine its authoritative interpretation of s. 12 of the Charter protecting Canadians from cruel and unusual treatment or punishment (paras. 76-7). The Court then held in a companion case, Hillbach (here), that the mandatory minimum for armed robbery with a firearm was constitutional.

Rather than analyze how the Court refined its s. 12 jurisprudence, I propose to consider some of the objections of two justices of the Alberta Court of Appeal in Hills to the Court’s 35-year-old rule that a sentencing law breached s. 12 if it was grossly disproportionate in its effect on either the accused or a “reasonably hypothetical” offender. I also propose to comment on the Court’s view that s. 12 is breached by a sentence that either offends human dignity or is grossly disproportionate.

In the court below (here), Wakeling JA reviewed the Court’s jurisprudence to explain why he thought Parliament and not judges should set penal principles in this “blatant attack” on democratic values (paras. 146). He declared he could not comprehend how the Court developed such a “plague” of erroneous principles that he traced back to Smith, the leading case (paras. 128, Smith [here]). He summarized his objections: (1) incarceration was a “usual” form of punishment (2) s. 12 applies only to “real” and not to “make-believe offenders” (paras. 262) (3) reasonable prosecutors would not charge small-time offenders with an offence that carried a mandatory minimum (4) the sentencing regime is broken (paras. 141-3) and (5) the traditional concern that some judges act improperly as “wanna-be legislators” (paras. 299). Justice O’Ferrall agreed that s. 12 jurisprudence should be revisited (para. 102). He thought that the reasonable hypothetical improperly focused on the law and not treatment of individual offenders (para. 109).  

The Court gave the well-worn “wanna-be” legislators argument short shrift in Hills by holding that there was no reason for departing from their longstanding constitutional interpretation of approach to s. 12 (para. 3). It noted anyway that the standard of gross disproportionality gave Parliament sufficient room to exercise its power to set penalties, even mandatory minimums, provided they were not outrageous (para. 113; Smith, 1072). The Court simply did its job of setting the reasonable reach of the law (Nur para. 63).

What about the objection to the Court’s concern for the “make-believe offender”? Perhaps the most basic reason for extending the reach of s. 12 by the reasonable hypothetical analysis was made in Smith. It was needed to ensure the certainty that the law would not impose an outrageous penalty in some cases (here, 1078). As in Hill, the Court’s concern was not for accused who often admitted the sentence was warranted, but for the now iconic hypothetical young person driving back to Canada from the US with her first joint and subject to the seven-year mandatory minimum in a penitentiary for importing a narcotic under s. 5 of the Narcotic Control Act (1053-4). Section 12 has always been about the law, not the claimant (Hills, para. 72). The law cannot constitutionally allow judges to hand down a sentence that is grossly disproportionate or incompatible with human dignity: Bissonnette, para. 69. McIntyre J, dissenting in Smith, noted that the Court allowed parties to advance a breach of rights of third parties not before the court because they might otherwise never be able to make their case because of impecuniosity or where there would never be a better party (1084). While McIntyre J was thinking about legally protected expression, so the Court’s extending the right to offenders to rely on the rights of third-party small-time offenders might seem incongruous, it does ensure that the impecunious small-time offender will not receive an unconstitutional sentence. It is interesting that the accused often agrees that the mandatory minimum applies to him but not to others in a s. 12 challenge. This altruism might be explained by the reasoning of the Court in Smith that sent the accused back to the lower court for resentencing because of the presumably inflating effect that the unconstitutional mandatory minimum might have had on the sentence (1082).

As for the objection that no reasonable prosecutor would let a small-time offender be unconstitutionally punished, the Court has always held a s. 12 challenge must be decided judicially and not by delegating their constitutional role to prosecutors (Smith, 1078-9, Nur, paras. 85–98).

It is hard to discern the Court’s reaction to the objection that Canada’s sentencing process is broken. Sentencing is the mainstay of criminal punishment and the default in case a mandatory minimum is struck down. The Court has rejected the idea that a constitutional exemption might be ordered where the small-time offender would suffer a s. 12 breach in a mandatory minimum case: Ferguson. This would do little more than preserve the basic sentencing process.

The return of the dignity standard is noteworthy (Hilbach, para. 89, Hills para. 133). The Court held in the Charter equality case of Law (here para. 52) that various relevant factors had to be assessed to determine whether they breached human dignity in s. 15. That standard ultimately proved rather vague and slowly gave way by the time of Fraser (here para. 27) to the simpler measure of constitutional wrong in exacerbating the disadvantage of vulnerable groups on grounds of discrimination, the state of the law in 1989 (here 1333). What will happen to this standard in s. 12?

The reasonable hypothetical standard is here to stay. It weathered the objections made to it in Hills. And in the two most recent cases, it led to the demise of one mandatory minimum while allowing another to stand based largely on the offence’s protection against danger to society.

About the author

James Hendry

James Hendry

James Hendry was called to the Ontario Bar in 1981. He was in private practice until 1984 when he joined the Canadian Human Rights Commission as counsel providing legal advice and litigation services, appearing at all levels of court, including the Supreme Court of Canada. In 1989, he was recruited by the Department of Justice. He was General Counsel in the Human Rights Law Section until 2011, specializing in civil Charter social policy advice and equality rights, and interpreting and designing human rights legislation. He was Research Director with the Canadian Human Rights Act Review Panel and a Visiting Scholar at Harvard Law School on a Canada-U.S. Fulbright Scholarship. He publishes extensively on Canadian and comparative constitutional issues and has lectured in Canada, Spain, South Africa, the United States, and Hong Kong. He taught Constitutional Law and Charter at the University of Ottawa, Faculty of Law and currently co-teaches a course on “Writing for Social Justice.” He designed and presented lecture series on the Charter, International Human Rights and Aboriginal Rights at Carleton University. He was the Editor in Chief of the Federated Press Charter and Human Rights Litigation journal from 1993 to 2016. He was founding Editor in Chief of the PKI Global Justice Journal, now published by Queen’s Law (2017 to 2022).