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There is, for my money, no clearer example of the State’s coercive power over an individual than the criminal sentence. There is also, for my money, no other aspect of the Government of Canada’s legislative program that will more readily come into conflict with the Constitution than the panoply of sentencing reform provisions in the controversial Safe Streets and Communities Act,?SC?2012, c 1. In fact, a recent firearms-related sentencing decision in Ontario, R v Lewis, 2012 ONCJ 413?[Lewis], seems to lend support to my proposition.
A Troublingly Brief Primer on Sentencing
The sentencing process works like this. Once the trier of fact has been satisfied, beyond a reasonable doubt, that the accused committed an act prohibited by Parliament, the trier of law (the judge) is then left to determine the appropriate consequence the offender shall face. When the time comes for this task, you can be sure, the judge is given considerable guidance as to how to proceed. “The fundamental purpose of sentencing…” as s. 718 of the Criminal Code, RSC 1985, c C-46?begins, “is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society.” The explicit objectives of sentencing that help bring this purpose to life include, among other things, denunciation, deterrence, and rehabilitation. Above all else, however, a sentence must be proportionate to the gravity of the offence, and the degree of responsibility of the offender.
Historically, the presiding judge has been left with considerable discretion to make sense of these esoteric notions of the just in the context of the case at bar. This makes sense, too, for there is no one more familiar with the facts and circumstances of the accused than the trial judge. In numerous instances, Parliament has decided to constrain judicial discretion by adding firm guidelines with respect to minimum and maximum sentence lengths—someone convicted of polygamy cannot be incarcerated for life, just as someone convicted of murder cannot receive a conditional discharge. Indeed, this also makes sense. Just as Parliament has the rightful authority to delineate which acts constitute criminal offences, so too does Parliament have the rightful authority to emphasize those that are particularly offensive.
Recently, the Conservative government has used the mandatory minimum as a way of getting “tough on crime.” The government’s hallmark criminal justice reform effort, the Safe Streets and Communities Act, is riddled with new stiff mandatory minimum sentence provisions. In response, criminal defence lawyers across the country have been challenging the constitutionality of various mandatory minimums on the basis of a seldom used provision of the Charter—section 12, or the right not to be subjected to cruel and unusual punishment.
The Mechanics of a section 12 Argument
Collectively, the Supreme Court of Canada’s (“SCC”)?R v Ferguson,? 1 SCR 96?[Ferguson], and the more recent Ontario Superior Court of Justice’s R v Nur, 2011 ONSC 4874 and R v Smickle, 2012 ONSC 602?[Smickle] work together to form the analytical framework involved in determining whether a given sentence amounts to cruel and unusual punishment. Ultimately, as Justice Bellefontaine helpfully restates in Lewis, judges must resolve two questions:
- What would the appropriate sentence for the offender be in the absence of any mandatory minimum penalty? If the appropriate sentence is equal to or greater than the prescribed mandatory minimum, the section 12 argument must fail.
- If the appropriate sentence in the absence of any mandatory minimum penalty—for the offender, or in a “reasonable hypothetical case”—would be less than the prescribed mandatory minimum, does the mandatory sentence amount to “cruel and unusual punishment?”
To put meat on the bones, the inquiry must be understood with the SCC’s reasons in Ferguson kept closely in mind. There, the top court restated a number of important principles that help clarify what it means for a sentence to be “cruel and unusual punishment.”
First, the threshold an offender must meet is an onerous one. It is not enough that the sentence be simply excessive. Rather, the sentence must be “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable.”
Second, in entertaining section 12 arguments, courts must be especially cognizant of their role and Parliament’s intent in drafting mandatory minimum sentences. To be clear, the very purpose of mandatory minimums is to strip judges of some of their discretionary power. Hence, in the ordinary case, a judge should not be substituting his or her opinion for that of Parliament. It follows, then, as the SCC has repeatedly stated, that courts should be reluctant to “invalidate sentences crafted by legislators” (R v Goltz,  3 SCR 485, 501).
Finally, the appropriate remedy for a provision in violation of section 12 is a declaration of invalidity and not a constitutional exemption (this was squarely at issue in Ferguson). In part, this helps explain why, when analysing a section 12 argument, a judge must consider whether the sentence is grossly disproportionate not only in the case of the accused, but also in a “reasonable hypothetical case.” In addition, this just makes sense. As a rule, a law cannot be unconstitutional in some applications, while constitutional in others. If a mandatory minimum sentence constitutes cruel or unusual punishment in one instance, it is entirely inconsistent with the constitution and, accordingly, is of no force and effect.
Perhaps to some surprise, given the clear, cautionary instructions from the SCC, trial judges in the first half of 2012 have twice found newly minted mandatory minimums unconstitutional.
R v Lewis and the “Reasonable Hypothetical Case”
In Lewis, as was the case in the R v Smith,  1 SCR 1045?[Smith], the only instance of the SCC striking down a mandatory minimum, the determination was made not on the basis of the offender’s situation, but on the basis of a “reasonable hypothetical case.” The facts of Lewis are entirely familiar. After receiving a confidential tip, a Toronto Police detective posed undercover to arrange a drug deal with Christopher Lewis. After three separate transactions involving nearly two ounces of cocaine, the detective pressed Lewis about acquiring a gun. The protracted negotiations between Lewis and the detective regarding the firearm were characterized by backtracking and excuse-making on the part of Lewis, and ultimately, the sale never materialized. Nevertheless, Lewis’ offer was enough to earn him a weapons trafficking charge, which makes it an offence to unlawfully transfer (or offer to transfer) a firearm. The charge, detailed in section 99 of the Criminal Code, carries with it a mandatory minimum sentence of three years.
These were not the facts that grounded Justice Bellefontaine’s conclusion that the section 99 mandatory minimum violated section 12 of the Charter. On the facts of the case, Justice Bellefontaine was satisfied that “Mr. Lewis never had access to a gun and never had any intention to carry through with the offer to transfer the firearm.” Additionally, while the three-year penalty was stiff, Justice Bellefontaine “was not prepared to find that it is so at al level that would be grossly disproportionate and/or would outrage standards of decency.”
Instead, Justice Bellefontaine found that, when the actual facts were substituted for a “reasonable hypothetical case”—a youthful, first offender making a “hollow offer” to sell a handgun—the character of the section 99 mandatory minimum penalty changed. Considered from this lens, a minimum penalty of three years served in the “harsh environment of a federal penitentiary” with “many hardened violent criminals” for a senseless youth would sufficiently outrage community standards of decency.
Lewis is not the first instance of a trial judge invalidating a mandatory minimum in the recent past.
Smickle, decided in February by Justice Molloy of the Superior Court of Justice, involved another firearms-related offence. ?There, the remarkably foolish Leroy Smickle, alone in the apartment of his cousin and clad only in boxer shorts, a tank top and sunglasses, decided to pose with his cousin’s handgun to capture that perfect Facebook profile picture. Coincidentally, at that very moment, Toronto Police barged through the door to execute a search warrant in relation to Smickle’s cousin. Smickle was charged and convicted of unlawfully possessing a loaded firearm, which carries with it a mandatory minimum sentence of three years. Though Smickle’s behaviour went “beyond mere foolishness,” Justice Molloy found a three-year sentence to be “fundamentally unfair, outrageous, abhorrent, and intolerable” (paras 1, 89).
Conclusion: Trial Courts Straddling a Fine Line
So, returning to the question, then—just how mandatory should mandatory minimums be?
Certainly, in forming an answer one cannot help but acknowledge the widespread criticism the Safe Streets and Communities Act in general, and mandatory minimums in particular have received. Mandatory minimum sentences are widely seen as being simplistic, ineffective and misguided attempts at reducing crime that utterly ignore well-regarded scholarly evidence on criminality. However, one also cannot help but acknowledge the clear, stern directives from the SCC which appear to have been discarded or glossed over Lewis.
As Justice Cory stated in Steele v Mountain Institution,  2 SCR 1385, “It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter.” This is because, as the SCC often reminds us in criminal law matters, “Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment” (Smith, 725). As one reads the frustratingly brief analytical justification given for Justice Bellefontaine’s decision in Lewis, you cannot help but feel that it is not the type of case contemplated by the SCC. By invalidating mandatory minimum sentences outside the clearest of cases—granted, Smickle may pass muster—the courts are no longer determining constitutional limits (as they should), but are rather, in effect, substituting their own position on the gravity of a given offence for the considered view of Parliament. It is precisely what the SCC has cautioned against, and it is a very fine line to tread.
With mandatory minimums and section 12 arguments increasing together in lockstep, I anticipate the SCC will inevitably weigh in and provide further guidance to lower courts—particularly, one can hope, with the “reasonable hypothetical case.” For better or for worse, however, rest assured this will not be the last time mandatory minimum sentences provide fodder for our newspapers’ opinion pages.