The Perfect Storm: Section 12, Mandatory Minimum Sentences and the Problem of the Unusual Case

Abstract

Canada's constitutional provision governing cruel and unusual punishment is suffering from a "perfect storm" of three competing doctrines of constitutional interpretation. The first is the long-standing judicial approach to section 12 of the Charter, which requires courts to assess both the actual impact of a sentence on the person before the court, and the potential for that same sentence to impose cruel and unusual punish- ment on a “reasonable hypothetical” offender. The second force is a Conservative government armed with a mandate to get tough on crime, whose policies have enacted minimum mandatory sentences for a wide variety of offences. Finally, a recent decision of the Supreme Court extinguished the possibility of using the controversial constitutional exemption remedy as a “safety valve” for legislation of this type. Two recent decisions from courts in Ontario signal that the storm is now quite clearly on the horizon. Like all storms, it is difficult to predict exactly how much damage will be wrought. What seems inevitable is that some aspect of the existing approach to section 12 claims is going to be revamped, or a number of the government’s cherished mandatory minimum penalties are going to be struck down. The various doctrines that govern the approach to minimum mandatory sentences are getting more and more difficult to reconcile, and Canada’s appellate courts will soon be forced to address the ramifications of three pressure systems colliding at once.

Keywords: Charter, cruel and unusual punishment, discretion