By: Lisa Silver
Appeals commented on: R v Hills (SCC Case No 39338), R v Hilbach and the companion appeal, R v Zwozdesky (SCC Case No 39438)
PDF Version: Does the Punishment Fit the Crime?
The week of March 21 was a momentous occasion for criminal law. In that week, over the course of three days, four Supreme Court of Canada appeals were heard that may change our sentencing principles and subsequently our entire conception of a fit and proper sentence. All four cases evoke the Charter in their drive to clarify, confine, and restrain punishment. The Alberta trilogy of R v Hilbach (argued with the companion case R v Zwozdesky), 2020 ABCA 332, and R v Hills, 2020 ABCA 263 all focus on the interpretation and application of s 12 of the Charter in challenging the mandatory minimum penalties of firearm offences. Bissonnette v R, 2020 QCCA 1585 from the Quebec Court of Appeal, on the stacking of the twenty-five-year parole ineligibilities for multiple convictions of first-degree murder under s 745.51, turns to ss 7 and 12 of the Charter. Finally, in R v Sharma, 2020 ONCA 478, ss 7 and 15 are applied to question the unavailability of conditional sentences for certain offences, particularly for Indigenous offenders. This comment will focus on the trilogy of Alberta cases in Hilbach, Zwozdesky, and Hills, which give us a snapshot of those trending issues that the Supreme Court of Canada will be grappling with when writing their decisions for all these appeals. For further ABlawg reading on the concerns with mandatory minimum sentences, see Erin Sheley, “The Next Shot in the Constitutional Debate Over Mandatory Minimum Sentences for Firearms Offences”; and Daphne Wang, “R v EJB: Another Unconstitutional Mandatory Minimum Sentence”.
The Background
The Alberta trilogy of cases involve firearm offences with very different results. In Hills, released July 10, 2020, Justices Antonio, O’Ferrall, and Wakeling, each writing their own concurring decisions, allow the Crown appeal and find the mandatory minimum sentence of four years for an aggravated form of intentionally discharging a firearm under s 244.2(1)(a), constitutional, increasing the sentence of three and a half years by six months to that minimum sentence.
Jesse Hills entered pleas of guilty to four charges, including the charge under s 244.2(1)(a). While under the influence of drugs and alcohol, Jesse fired a round of four shots from his rifle into a home occupied by a family including two children. Multiple shots entered the home and bullets were found embedded in the wall and a bookcase. No one was physically injured but the psychological damage suffered by the family and the community was great (at paras 4–8, 16). A Gladue Report was filed on sentencing, which showed Jesse to be a first offender who had made “significant rehabilitation efforts” and maintained “steady employment, had support of family, friends, and co-workers and efforts at restitution” (at para 16).
Almost two months later, on September 18, 2020, Justices Feehan and Strekaf in the majority with Justice Wakeling in dissent, upheld the unconstitutionality of the mandatory minimum sentences found in Hilbach for the first offence of robbery while using a prohibited weapon under s 344(1)(a)(i), and in Zwozdesky for the offence of using a firearm in the course of a robbery as a party to that offence under s 344(1)(a.1).
Ocean Hilbach, who was a nineteen-year-old Indigenous offender whose sentencing was required to be viewed through Gladue principles. The sentencing judge imposed a sentence of two years less a day, which the Alberta Court of Appeal increased to three years, in contrast to the mandatory minimum sentence of five years. The robbery committed by Ocean, with an accomplice, was on a commercial establishment with an unloaded sawed-off rifle (at paras 40–41). Ocean’s life story was troubled. His parents abandoned him when he was a baby, and he was raised by his paternal grandparents who were traumatized by the residential school system (at paras 42–43). Ocean suffered from addiction, violence, poverty, and a life marked by anti-social behaviour (at paras 43–44). The judge, in sentencing Ocean, found that jail would have a “profound impact” on him (at para 44).
Curtis Zwozdesky was the driver of the “getaway car” for two robberies of convenience stores committed by his two accomplices (at para 19). He was fifty-three years of age, had no prior criminal record, and was abused as a child (at para 20). Curtis was also addicted to pain medication after a serious motor vehicle accident (at para 20). At the time of the robberies, he was under the influence of drugs (at para 20). Curtis’s sentence of three years was upheld by the Alberta Court of Appeal in contrast to the mandatory minimum sentence of four years incarceration.
Why Sentencing Matters
Sentencing, more than any area of criminal law, reflects who we are as a society. Treating those we deem to be “criminals” with respect and dignity through a fair and just sentence is a key feature of our democracy. It shows the democratic process can protect society while encouraging those who have done wrong to choose to do right. Sentencing is unique in criminal law because the focus is not just on the offender. This differs from the trial process, where the continuing question is whether this accused committed this offence. Upon conviction, that focus shifts dramatically. Although individualization still matters, so does the harm caused to the victim and the impact on society.
Sentencing involves long-held principles, which were traditionally founded within a highly discretionary regime. In some ways, it is the judge who is front and centre in the sentencing court. It is to the judge that counsel makes submissions because it is the judge that fine tunes the sentence to respond to the offender’s background and the circumstances of the offence. The judge is on the front-line of justice and fulfills that democratic promise. The sentencing judge hears the unique life stories of each offender and assesses the impact their conduct has had on the victims and society at large. Sentencing is discretionary because it takes human effort and feeling by the judge to craft a just and appropriate sentence. Unsurprisingly, it is to the judge that the eye of society is fixed upon. The stakes are high in the sentencing court as liberty is in issue and public safety is a concern; all of which is magnified as the community lens of justice peers in.
The overarching fundamental principle of sentencing is proportionality (see s 718.1 of the Criminal Code). The principle requires that sentences are proportionate to the seriousness of the offence and the responsibility or culpability of the offender. This proportionality requirement is “fundamentally connected” (R v M(CA), 1996 CanLII 230 (SCC), [1996] 1 SCR 500 at para 40) to the criminal offence itself through the fault element. It is this mental state that gives rise to the moral culpability of the accused, which is then worthy of approbation through just sanctioning (R v M(CA) at para 79). Indeed, according to the then Chief Justice Lamer, the “general principle of criminal liability” (and the Charter) requires that punishment only be imposed on those accused who are morally blameworthy (ibid at para 40). In a criminal trial, the mental state is either established beyond a reasonable doubt or it is not. But, once found, it is left to the sentencing court to determine the level of culpability. Conviction crystallizes the blameworthiness but sentencing weighs it to a nicety.
The proportionality principle is not applied in a vacuum. It is infused with the objectives or purpose of sentencing as enumerated under s 718 of the Code such as deterrence, rehabilitation, and condemnation. The principle is further animated by the many other principles engaged in the sentencing exercise, such as totality and parity, and filled in by the many aggravating and mitigating features of each particular case. Although a sentence must comply with these principles and objectives, the sentencing judge has the discretion to craft the fit and appropriate sentence within those principles. Sentencing is unique because it is applied in a singular fashion to unique circumstances of which not one case is the same. Yet, the principles themselves remain very much the same. Until, of course, the courts determine otherwise.
Why Mandatory Minimum Sentences Matter
But sometimes it is Parliament and our law makers that determine otherwise. Such is the case of mandatory minimum sentences, which are purely statutorily created. Mandatory minimum sentences constrain the discretionary nature of sentencing. They provide a ready-made starting point for sentences, signalling societal approbation of the offence through that constraint. This runs against the discretionary nature of sentences, binding the judge to impose the mandated minimum sentence even if otherwise unshackled the judge would impose a lower one. Mandatory minimum sentences raise the concern with whether the sentence subsequently imposed is fit and appropriate considering that fundamental principle of proportionality. But does it matter that the punishment does not fit the crime if the lawmakers deem it does? Or is the real question whether it matters only if the Charter deems it does?
It is important to note that mandatory minimum penalties pre-date the Charter. Indeed, in our first Criminal Code of 1892, there were 6 offences carrying mandatory minimum sentences. At their peak, there were over 100 mandatory minimum sentences found in the Criminal Code and other federal criminal law statutes. But it is not the number of mandatory minimum penalties that count, it is what kind of offences are garnering this kind of treatment. This is because mandatory minimum sentences send a societal message.
This message has many meanings. Mandatory minimum penalties signal that the offence deserves special condemnation that can only be found in a minimum sentence. The mandatory minimum penalty is also signalling which sentencing objectives require special emphasis such as deterrence, denunciation, protection of the public, and where that minimum penalty is jail, that the offender must be separated from society. These are all valid sentencing objectives under s 718 of the Criminal Code. Mandatory minimum sentences may also send a more subtle message, particularly when there are many mandatory minimums, as we have experienced in the past decade. By legislating a hard floor to sentencing, Parliament might be saying that we cannot trust the judges to impose the appropriate sentence – that they are too “soft” on crime. Whatever the message, we must all be concerned by the generous use of mandatory minimum sentences because their use may be the proverbial canary in the coal mine, potentially signalling a public loss of confidence in the justice system.
The ultimate question, with mandatory minimum sentences is: is that the message we want to send and if so, why? Is this who we are as a society? For instance, in 1892, the 6 mandatory minimum sentences were imposed for engaging in a prize fight (mandatory minimum three months with or without hard labour under s 94), fraud and corruption in governmental affairs (s133 and s 136), and three offences involving stealing mail or mail bags (s 326). Notably, stopping the mail with intent to rob or with the intent to search the mail garnered a five-year minimum sentence under s 401. This suggests that prize fighting, government frauds and interference in the post required specific condemnation. Fast forward to the present mandatory minimum sentences in the Code and for the most part they involve violent offences where firearms are used, drug offences, and sexual offences against children. This reveals changes in the kinds of behaviour society labels as so pressing, so noxious, and so reprehensible, that judges must attend to the seriousness of the conduct through a minimum sentence.
Why Mandatory Minimum Sentences are a Problem
Considering the reasons, the use of mandatory minimum sentences seems reasonable. It provides judges with guidance on sentencing by directing them to those offences that matter to society, create the most cause for public concern, and signal the need for deterrence and denunciation. But that is not the entire narrative. The main concern with mandatory minimum sentences is truly the reason why lawmakers feel they are needed. Many critics suggest that mandatory minimum sentences inappropriately constrain judicial discretion and run counter to sentencing principles. Chief Justice McLachlin, as she then was, in R v Nur, 2015 SCC 15, the decision setting the gold standard for the law surrounding s 12, called mandatory minimum sentences a “blunt instrument” that “deprive” the judge’s ability to individualize a proportionate sentence (at para 44).
As a result, the effect of mandatory minimum sentences is to cast a “wide net” by capturing those individuals whose circumstances and responsibility do not align with the minimum sentence (R v Morrison, 2019 SCC 15 at para 179). In this way, mandatory minimum sentences are overbroad by not providing a “safety valve” allowing the less blameworthy to receive a sentence less than the mandatory minimum (Morrison at para 148). By affecting the sentencing outcome, mandatory minimum sentences change the “normal judicial process of sentencing” (Nur at para 44), creating inequities, and potentially oppressive disproportionate sentences. But there is also a less than legal concern, which is when you constrain judicial discretion, when you step away from individualization and rehabilitation, then justice lacks the touch of humanity.
Moreover, mandatory minimum penalties can adversely affect the justice system by creating systemic delays (see Greg Lepp, “Injecting a sense of urgency.” (2013)) and encourage improper guilty pleas (see Dianne L. Martin, “Distorting the Prosecution Process: Informers, mandatory minimum sentences, and wrongful convictions” Osgoode Hall LJ 39:2 (2001) 513; and Alice Woolley, “Mandatory Minimums and Lawyers’ Ethics”). Those charged with mandatory minimum sentences have an incentive to fight the charge and go to trial. There is simply no benefit in entering a plea of guilty. This can clog up the courts and cause delays for other pressing cases. Conversely, an accused person, for fear of the unknown outcome at trial, may enter into plea negotiations, despite a judiciable issue at trial, in the hopes of entering a plea to a lesser offence that does not carry a mandatory minimum sentence. Either way the integrity of the justice system is at risk.
Why Mandatory Minimum Sentences Engage the Charter
All the concerns with mandatory minimum sentences are meaningless if there is no mechanism for change. In the sweeping 1953-54 amendments to the Criminal Code, the 6 mandatory minimum sentences from 1892 were repealed but no doubt, at the time, others were added. This kind of legislative change is driven by the creators of mandatory minimum sentences and is dependent on the lawmakers in power and their priorities in government. For instance, the present Liberal federal government is moving to repeal many mandatory minimum sentences in Bill C-5, which has received second reading on March 31, 2022. In fact, the three mandatory minimum sentences challenged under s 12 of the Charter in Hills, Hilbach, and Zwozdesky would be eliminated if Bill C-5 is enacted into law. Justice Minister Lametti in his responses before the House Justice and Human Rights Committee, defended the changes, explaining that mandatory minimum sentences simply don’t deter others from committing these crimes, don’t reduce crime, and don’t impact recidivism. Rather, the imposition of mandatory minimum sentences increases the incarceration of Indigenous and Black offenders. Mandatory minimum sentences are not a mechanism of social justice but of injustice by promoting racial discrimination.
These arguments against MMPs are compelling, and we see our government retrenching. So why should we still await these decisions? The reason is connected to the other way change can be affected, which is through the application of the Charter. The Charter can be a powerful ally to criminal law, engaging judicial scrutiny and ensuring our laws are normatively consistent with the values underlying the Charter. The Charter does not, however, have the same impact after an accused has been convicted and becomes an offender. At the sentencing stage there is no presumption of innocence and due process is less of a concern.
According to the Supreme Court of Canada in R v Safarzadeh-Markhali, 2016 SCC 16, the proportionality principle is not a principle of fundamental justice and is not protected by the Charter. The Court did find that proportionality does have constitutional dimensions by virtue of s 12 of the Charter (at para 70). Section 12 protects everyone’s “right not to be subjected to cruel and unusual treatment or sentence.” Although the Charter does not guarantee a proportionate sentence, through s 12, it protects against grossly disproportionate ones. This constitutionalized protection then becomes a principle of fundamental justice under s 7. Mandatory minimum sentences have been challenged under ss 7 and 12 on this basis, although s 12 seems to be the most effective route.
The test under s 12 is a two-part analysis (Nur at para 46). First, the judge must determine what the fit and proportionate sentence should be for the offender in the circumstances of the offence. Then the judge must compare that sentence to the mandatory minimum sentence to determine if the effect of the mandatory minimum sentence is “grossly disproportionate” to that fit sentence. Grossly disproportionate means more than merely excessive and must be a sentence that “outrage the standards of decency and be ‘abhorrent or intolerable’ to society” when considering the role of the offender and the harm caused (Hilbach at para 17). The role of the offender can be viewed in two ways, the specific offender before the court, or whether the “reasonably foreseeable applications” on other offenders not before the court would impose a grossly disproportionate sentence (Morrison, at para 144). This second way to determine constitutionality has become to be known as “reasonable hypotheticals” (at para 170). Once a sentence violates s 12, it is difficult to justify it under s1.
In Hilbach, the mandatory minimum sentence of five years was grossly disproportionate for him personally as an Indigenous offender and for other reasonably foreseeable applications (at paras 53, 54, 56). In Hills and Zwozdesky, the constitutionality was determined based on the reasonable hypotheticals. Counsel in Zwozdesky, relied on five cases and five other scenarios to advance the position that other reasonably foreseeable applications of the mandatory minimum sentence produced grossly disproportionate sentence (at paras 58–70). The majority of the Alberta Court of Appeal found two of the cases and two of the proposed scenarios would create grossly disproportionate sentences (at para 68).
In Hills, the court by “applying judicial experience and common sense,” found the mandatory minimum sentence constitutional (at para 85). Notably, expert evidence was advanced to support the “reasonable hypothetical” but the evidence failed to consider the “additional harm” being the “impact on the feeling of safety in communities” (at paras 70–83). Justice Antonio, in dismissing the scenario, relied on the Alberta Court of Appeal’s earlier decision in R v Arcand, 2010 ABCA 363, in finding that “harm to one member of the community affects the rights and security of others” (Arcand at para 179 and Hills at para 82). As the offence in Hills was intentionally discharging a firearm into an occupied home, the psychological effect on the occupants and the neighbourhood confirmed the Court’s view that the offence required an elevated minimum sentence (at paras 81–84). The mandatory minimum was reasonable.
Why These Cases Will Impact the Sentencing Generally and Charter Rights Specifically
Let us now return to the question of why these cases are important in the Charter landscape if the government is repealing so many mandatory minimums. The answer lies in the arguments raised on appeal before the Supreme Court of Canada and in those other cases heard during that week of sentencing appeals. The issues raised will impact the legal test under s 1, other Charter sections such as s 7, and the outcome of the Bissonnette case on the stacking of parole ineligibilities under s 745.51. These decisions will also have a broad impact on our sentencing principles and the weight we place on proportionality and individualization.
To highlight the importance of these cases, I have identified six issues the Court will be considering in writing their decision.
First is the use of reasonable hypotheticals in the analysis. This is an issue that will impact s 12 challenges and other Charter violations where hypotheticals are used, such as in s 7. The concern with why the Court should consider those offenders who are not before the Court as part of a constitutional challenge raised by a specific accused was discussed in the Nur decision. On that issue, Chief Justice McLachlin did not approve of the label “reasonable hypotheticals.” In her opinion, the descriptor “hypothetical” “overwhelmed the word ‘reasonable’” (Nur at para 57). Instead, the focus should be on the “reasonable reach of a law”, the kinds of conduct captured by that law, and the impact of it, rather than the potential offender themselves (at para 61).
It should be noted the word “hypothetical” does not even appear in Chief Justice McLachlin’s characterization of the s 12 test (at para 65). Yet, after the Nur decision in 2015, the phrase “reasonable hypothetical” has been used in 593 cases (based on a CanLII search) with the majority (395 cases) released after Nur. Indeed, “reasonable hypothetical” is used in the Hills decision, where the Alberta Court of Appeal found the mandatory minimum sentence constitutional, but in Hilbach, which upheld the unconstitutionality of the mandatory minimum sentence, the Court references “reasonably foreseeable applications”. In the Hills decision, Justices O’Ferrall and Wakeling suggest the use of reasonable hypotheticals needs to be revisited. For Justice O’Ferrall, it makes “no sense” to determine constitutionality based on an individual not before the court (at para 111). Justice Wakeling goes so far as to call them “make-believe” problems “that would never happen in real life” (at paras 140).
McLachlin, CJC disagreed. In her view,
refusing to consider an impugned law’s impact on third parties would also undermine the prospect of bringing certainty to the constitutionality of legislation, condemning constitutional jurisprudence to a wilderness of single instances. Citizens, the police and government are entitled — and indeed obliged — to know what the criminal law is and whether it is constitutional. Looking at whether the mandatory minimum has an unconstitutional impact on others avoids the chilling effect of unconstitutional laws remaining on the statute books (at para 63).
This quote shows there is more at stake than just the parameters of a test. It is a question of reach and whether it is the law makers who are overreaching in their desire to control the sentencing process or is the Courts who are overreaching by hammering away at laws when a chisel would do.
The other concern with considering the impact of the sentence on other potential offenders is, how detailed should that consideration be? McLachlin, CJC did not want the potential other offender to overshadow the judge’s determination on the sentence, but without some details on the potential offender, the exercise becomes futile. Without that personal touch, the concern is whether the test adequately accounts for those who are overrepresented in the justice system such as Indigenous and Black offenders. In the end, the Court will need to clarify this issue and give some direction on how far counsel must go in constructing the less blameworthy person, short of creating “remote or far-fetched” scenarios (Nur at para 68).
A related issue will be defining the factors, other than those involving the potential offender, which should be considered in creating the reasonably foreseeable applications. In Hills, Justice Antonio went beyond the potential harm caused by the offence itself to the broad effects of such gun-related crime on the community. In Hilbach, the Court agreed to consider the “psychological effect on the victims and others nearby, the risk of a violent reaction from a target or bystander, and the impact on the feeling of safety in the community” when applying reasonably foreseeable applications involving “firearms involving violence” (at para 56). The Supreme Court of Canada will need to weigh in on how these potentially lasting effects on the community will impact the test under s 12.
This issue will be the one to watch in these decisions, particularly as Justices Moldaver and Wagner dissented in Nur and they tend to be the authors in those non-Charter sentencing decisions (see e.g. R v Suter, 2018 SCC 34 and R v Lacasse, 2015 SCC 64). Justice Karakatsanis is the only one left from the Nur majority.
The second issue raised in these appeals calls for clarification of the test and the concept of “gross disproportionality”. This latter concern is tied into the use of reasonable hypotheticals and whether the true meaning of the phrase “gross disproportionality” is being properly engaged. For instance, Justice Wakling in Hilbach suggests that a “cruel and unusual” sentence must be “barbaric” (at para 130).
In Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32, a case considering the constitutionality of hefty mandatory minimum fine for a corporation breaching regulatory requirements, Justice Abella, writing in a concurring judgment, commented on the historical “origins and values” of s 12 (at para 88). The protection comes from the English Bill of Rights of 1688 (1 Will & Mar Sess 2, c 2, at art 10) which prohibited the infliction of “cruel and unusual punishment” along with “excessive bail” and “excessive fines” (at para 89). The same provision was incorporated into the American Constitution (Eighth Amendment) in 1791 where it was considered in a death penalty case of Furman v. Georgia, 408 US 238 (1972). In that case, there was some debate on the meaning of the phrase, with Justice Marshall commenting on whether the provision was “properly read as a response to excessive or illegal punishments, as a reaction to barbaric and objectionable modes of punishment, or as both, there is no doubt whatever that in borrowing the language and in including it in the Eighth Amendment, our Founding Fathers intended to outlaw torture and other cruel punishments” (Furman at page 319). In the same decision Justice Brennan preferred to look at what the provision was trying to protect as opposed to what it meant. In his opinion, the heart of the provision was the protection of human dignity requiring the state to “treat its members with respect for their intrinsic worth as human beings” (Quebec at para 91). This is the approach Justice Abella embraced whole-heartedly in interpreting the section (at para 93). Although Justice Abella’s position is the minority decision, this reasoning presages the kind of debate that might occur when the Alberta trilogy of cases are released, particularly as Justice Abella was joined by Justices Karakatsanis and Martin in the judgment, both of whom heard the Hills, Hilbach, and Zwozdesky appeals.
The third issue considers the intersection of s 12 and Gladue principles under s 718.2(e). The Hilbach court recognized and accounted for Gladue principles in deciding the mandatory minimum was grossly disproportionate to what Ocean Hilbach would have received considering his role in the offence and his personal circumstances. This is a timely issue and a pressing concern when applying mandatory minimum penalties.
The fourth issue considers the placement of the proportionality principle in our sentencing regime – is it still the fundamental organizing principle of sentencing? In Hills, Justices O’Ferrall and Wakeling seem to suggest that basing our sentencing regime on proportionality is misguided as our system can tolerate disproportionate sentences (see e.g. at para 116). The interesting discussion point is what the link is between “grossly disproportionate” and the proportionality principle. There is a constitutional gap between a proportionate sentence and a grossly disproportionate one. That gap should be closed by appellate review, as a disproportionate sentence should be unfit. But not every sentence is reviewed and there is no mechanism of ensuring perfect application of the proportionality principle. This issue may bring to the foreground the then Chief Justice McLachlin’s fear that mandatory minimum sentences change the “normal judicial process of sentencing” (Nur at para 44). But that does leave the question of what exactly is “normal” or, in the realm of mandatory minimum sentences is there a “new normal”?
This kind of discussion could open a review of the entire sentencing regime. For instance, in Hilbach, Justice O’Ferrall opined that rather than proportionality as the fundamental principle of sentencing, public safety is paramount (at para 45). It will remain to be seen how far the Supreme Court will go in delineating these issues.
The fifth issue, although connected to the proportionality principle discussion, is the extent to which individualization matters in sentencing, what a “tailored made” sentence truly requires, and how mandatory minimum sentences affect this concept. A proper consideration of the circumstances of the accused is non-negotiable when it comes to sentencing. Individualization identifies and operationalizes the specific sentencing principles and objectives, which may receive more or less weight. Yet, other than being mentioned as an important organizing principle, there is not much legal discussion how specifically the law ensures individualization is fulfilled.
The final issue, is the long-standing dialogue between lawmakers and the courts – who is overreaching when it comes to mandatory minimum sentences? Is it the lawmakers or the courts? Who deserves deference on these issues? Parliament, who presumably have the pulse of the people, or the Courts, as the guardians of the Constitution? That will be the ultimate question to answer, although as suggested by Chief Justice McLachlin in R v Lloyd, 2016 SCC 13, if the lawmakers narrowed the reach of mandatory minimum sentences and targeted only those situations and offenders that required such approbation, such sentences might survive constitutional scrutiny (at para 3). It appears Justice Minister Lametti is considering just that in the Bill C-5 amendments, as some mandatory minimums are retained for gang violence. Alternatively, McLachlin, CJC suggested building back in some amount of discretion, permitting a judge, in warranted circumstances, to go below the mandated minimum (at para 3). In the end, only discretion can account for the human factor.
Finally, we return to the societal message of mandatory minimum sentences. Perhaps the real message here is that the justice system does not do a good job at creating its own messaging about sentencing. We don’t take time to explain to the public what sentencing is in law, how it works, and why we think it works. The justice system needs to listen and hear what the public is saying to adequately respond to their fears, because sentencing does engage the community sense of justice in a very visceral and real way.
This post may be cited as: Lisa Silver, “Does the Punishment Fit the Crime?” (May 20, 2022), online: ABlawg, http://ablawg.ca/wp-content/uploads/2022/05/Blog_LS_Minimum_Sentencing.pdf
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