A More Lasting Comfort? The Politics of Minimum Sentences, the Rule of Law, and R. v. Ferguson

Supreme Court Law Review, Vol. 47, No. 2, pp. 1-25, 2009

26 Pages Posted: 4 Oct 2009  

Benjamin L. Berger

York University - Osgoode Hall Law School

Date Written: October 3, 2009

Abstract

As a priori political judgments about what is a just punishment in all circumstances, minimum sentences pose particular and profound problems for the administration of criminal justice. Mandatory minimums are, however, politically seductive. Faced with their proliferation in Canadian penal law, Canadian courts have experimented with using the constitutional exemption as a means of addressing the excesses created by mandatory minimum sentences. This experiment was terminated in the Supreme Court of Canada’s decision in R. v. Ferguson. Although this judgment has been met with dismay in some quarters, this article argues that the decision is best read as a welcome disruption of the troubling politics of minimum sentences and sends the right message about the substantive demands that we make of our penal laws and the responsibilities of politicians in their approach to criminal justice.

Keywords: Minimum Sentences, Punishment, Exceptions, Constitutional Law, Canada

JEL Classification: K14, K00

Suggested Citation

Berger, Benjamin L., A More Lasting Comfort? The Politics of Minimum Sentences, the Rule of Law, and R. v. Ferguson (October 3, 2009). Supreme Court Law Review, Vol. 47, No. 2, pp. 1-25, 2009. Available at SSRN: https://ssrn.com/abstract=1482106

Benjamin L. Berger (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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