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Unreasonably hypothetical: what’s wrong with s.12
Proportionality in punishment is deeply uncertain. Even when people agree on facts and values, they often reach different but reasonable conclusions about appropriate sentences. Against this backdrop, the Supreme Court of Canada’s reliance on “reasonable hypotheticals” to strike down mandatory minimums under Section 12 of the Charter is flawed. Abstract principles cannot produce a single correct sentencing outcome. The Court’s use of “reasonable hypotheticals” obscures the comparative reasoning behind sentencing in a common law system and replaces democratic accountability with judicial intuition.