Title: Unreasonably hypothetical: what’s wrong with s.12

Date: Monday, November 17, 2025

Description: 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.

Speakers:

• Vincent Chiao - Professor and Associate Dean, Graduate Programs, University of Toronto, Faculty of Law

Podcast: 

Transcript: 

00:00:00
I think we can all go ahead and get started.
00:00:03
Welcome everyone to this meeting of our visiting speaker series.
00:00:06
My name is Benjamin Ewing and I will be introducing our program and visiting speaker and also keeping the queue for questions after our guest is done presenting.
00:00:15
As is customary for these visiting talks, I'll begin with a land acknowledgement, although some of us are tuning in remotely and
00:00:24
elsewhere but campus, we here are situated on traditional Anishinaabe and Haudenosaunee territory.
00:00:30
And we're very grateful to be able to live, learn, and play with various academic ideas, including reasonable hypotheticals on these lands here.
00:00:40
It's my pleasure to introduce our great speaker, Vincent Chao.
00:00:45
He is professor of law at the Henry N.R.
00:00:49
Jackman Faculty of Law, the University of Toronto.
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Professor Chao is one of the leading criminal law theorists of his generation and the author of many articles in academic journals, contributions to edited volumes, and the book Criminal Law in the Age of the Administrative State, published by Oxford University Press in 2018.
00:01:08
Title of his talk today is Unreasonably Hypothetical, What's Wrong with Section 12?
00:01:14
Some of you will know this is a very topical issue because every time the Supreme Court of Canada strikes down another mandatory minimum sentence as unconstitutional, we get assorted op-eds in our newspapers about whether this is the correct interpretation of gross disproportionality.
00:01:32
So I look forward to Professor Chao's presentation today and the conversation to follow.
00:01:40
And with that, I'll hand it over to Vincent.
00:01:43
Thanks.
00:01:44
Thanks, Ben.
00:01:44
I appreciate that introduction.
00:01:46
That is a very generous introduction.
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I appreciate you taking the time to come to this talk, especially because I know this is a very busy time of the semester for everyone.
00:01:56
So I'm very grateful.
00:01:59
I'm just going to try and keep a little bit of track of where I am.
00:02:04
This is my first time kind of presenting this paper, so I would really super appreciate any thoughts and feedback that you have.
00:02:10
I should say off the top that this is a joint authored paper with Francois Tengay-Renaud at Osgoode Hall Law Journal, at Osgoode Hall Law School.
00:02:19
Sorry, not the drill.
00:02:21
So for
00:02:25
As Ben mentioned, since the Canadian courts have been using this idea of the reasonable hypothetical to strike down mandatory minimums.
00:02:31
So a recent study looked at challenges brought to appellate courts in Canada since 2008 and found that Canadian courts have struck down 3/4 of the challenged mandatory minimums, about 51 separate provisions.
00:02:49
using the device of the reasonable hypothetical.
00:02:51
The reasonable hypothetical is when the court imagines a case that is often quite different from the actual case before it and says, well, in this hypothetical case, we think the mandatory minimum would be grossly disproportionate and therefore will invalidate the mandatory minimum under Section 12 of the charter.
00:03:14
Academic commentary on this device of the reasonable hypothetical, so it's a kind of notorious device, so it's gotten quite a bit of attention in the journals.
00:03:23
And as far as we can tell, academic commentary tends to be generally quite favorable towards the Supreme Court's use of this device.
00:03:32
We are kind of positioned on this as a kind of the skunk in the room, as it were, where we disagree.
00:03:37
We think the use of reasonable hypotheticals is unjustifiable for a range of reasons which
00:03:44
we'll go over.
00:03:46
But just to kind of give you a flavor of this, if you're not familiar with these cases, the device of the reasonable hypothetical starts and is first seen in this case called Smith, an early charter case.
00:03:58
And in that case, Chief Justice Lemaire invalidated mandatory minimum on the basis of involving a drug trafficking offense on the basis of this hypothetical.
00:04:14
And so, well, I can imagine this set of facts occurring that would, under the four corners of the statute, constitute an offense.
00:04:23
And I think the mandatory minimum would be grossly disproportionate for this kind of case.
00:04:27
This is the description of the case.
00:04:30
We're not we're not seeing like huge descriptions of like it's just a very simple hypothetical.
00:04:39
So that's the earlier case.
00:04:42
Then basically nothing happens for a couple of decades.
00:04:45
And then we get to Nur more recently, where they strike down a minimum on this hypothetical for unmoted possession of an unmoted firearm.
00:05:00
More recently, still in a case called Hills.
00:05:05
for firing, discharging the firearm that's not capable of perforating the residence walls.
00:05:11
Again, these are all hypothetical cases where the four corners of the statute are met.
00:05:17
And the idea is that the punishment would be
00:05:20
grossly disproportionate.
00:05:22
And then most recently, this case, Senevel, involving an 18-year-old who receives a sext from his 17-year-old girlfriend, which would constitute child *********** under the terms of Section 163 of the code.
00:05:38
Now, in none of these cases do these hypotheticals actually resemble the cases at Barr, right?
00:05:43
They're quite different along many different dimensions.
00:05:49
And also somewhat strikingly in these cases, in many of the Supreme Court's mandatory minimum cases, they will strike down a mandatory minimum while nonetheless affirming the sentence imposed on the accused, which is equal to or in some cases indeed above the minimum, kind of highlighting that they are not actually responding to any actual injustice done to the accused, but imagining future cases which might potentially be brought, right?
00:06:17
Okay, so that's just to kind of give you a general flavor of the kind of what the device of the reasonable hypothetical is doing in these cases involving mandatory minimums for, mandatory minimum punishments for various types of crimes.
00:06:35
So briefly, kind of the plan for the rest of the talk, I'm gonna kind of make three related arguments.
00:06:42
The first addresses
00:06:44
what I believe to be the most commonly given justification for the use of reasonable hypotheticals by the Supreme Court, which is that it prevents people from being sentenced under unconstitutional laws.
00:06:56
We're going to spend a fair amount of time on this because this is a very, in various forms, this is one, I think, the most consistent line of defense for this doctrinal approach in both the cases and in the law reviews.
00:07:14
Second, we're going to, or I'm going to, I guess, spend a little bit of time talking about some of the doctrinal puzzles that the reasonable hypothetical device creates.
00:07:25
And especially we're going to focus, I'm going to focus especially on this puzzle that it creates with what the Supreme Court has otherwise said about its very individualized approach to sentencing, that sentencing is a very contextual process.
00:07:39
And then finally, I'm going to kind of back out a little, zoom out a little bit and offer a diagnosis that there's a kind of deeper philosophical problem here about that kind of explains these institutional and doctrinal puzzles that has to do with what proportionality is.
00:07:57
In A nutshell, I think the reasonable hypothetical approach assumes that
00:08:02
Proportionality is an individualistic property, a property of punishments that you can discern case by case, whereas I think proportionality is relational.
00:08:12
It's A holistic judgment that is about how one punishment for a given crime relates to the broader system of punishments, in which case it is just not possible to say in the abstract on the basis of a hypothetical, like what is the proportion of punishment?
00:08:27
That is just, there is no answer to that question framed in that way.
00:08:32
So that's the kind of where we're going to end up.
00:08:36
Okay.
00:08:37
So let me start with this idea that no one should be sentenced under an unconstitutional law.
00:08:41
So as I said, this is the most commonly given justification for the reasonable hypothetical.
00:08:46
Most recently in Senavel, the court says, the rule of law, so this is a quote, the rule of law requires that no one be sentenced under an invalid statute.
00:08:57
So you see this, you know, reaffirmed by the court just
00:09:01
couple weeks ago.
00:09:04
And so the basic idea is that even if the mandatory minimum, X number of years for this crime is like okay for a particular accused, like maybe for one particular guy who happens to be in a dock at this time, he's like, yeah, that's not too far off the mark.
00:09:20
I can imagine some other case where it would like really be offensive to my sense of justice or something like that.
00:09:27
And so we need the courts to like really be aggressive about that to ensure that doesn't happen.
00:09:31
that we don't have the sympathetic person, the sympathetic accused who's facing this, like what in that case would be a really disproportionate punishment.
00:09:45
So that's part of it.
00:09:46
And this argument is usually wrapped up as well with some kind of
00:09:51
arguments having to do with crown discretion because crowns, as I'm sure have quite a bit of discretion in terms of how to structure a charge and whether to proceed with a prosecution in the interests of justice in the 1st place.
00:10:04
And so the kind of argument that, well, look, these more sympathetic cases won't reach the courts because the crowns will choose not to prosecute them has been roundly criticized on the idea that the constitutionality of a punishment should not be contingent on the exercise, the proper exercise of crown
00:10:21
discretion.
00:10:22
So that's kind of the general thought here.
00:10:27
So I want to try and convince you that this is a bad argument, that this is a bad argument.
00:10:33
So let's see.
00:10:37
Here's the kind of, I want to break, so to explain why I want to kind of break this down into two kinds of cases.
00:10:42
So first,
00:10:44
The idea seems to trade on an implicit assumption that judges are reliable when it comes to discerning proportionality, right?
00:10:53
Because the idea is that you have a judge who is bound to impose the mandatory minimum, but that's bad because if they weren't bound by the mandatory minimum, they would impose the proportionate punishment.
00:11:10
which we're assuming is below the minimum.
00:11:13
So the argument only works if you think that the judges are going to reliably impose the correct proportionate punishment, because if they weren't, then the mandatory minimum's like not doing anything, right?
00:11:25
So, okay, so let's start with that assumption that judges are good at discerning proportionality in individual cases.
00:11:31
They can tell you whether a punishment is proportional or not.
00:11:36
Well, the problem then is that
00:11:39
In Canada, sentences are imposed by a judge.
00:11:43
So if a crown brings a case, again, charges someone under a mandatory minimum statute where the facts suggest that the mandatory minimum is grossly disproportionate as applied to that individual, then the judge will catch it because the guy's in his courtroom and the judge will be like, yeah, crown,
00:12:03
That doesn't make sense.
00:12:04
Like, I am going to say that I think there's a problem with the mandatory minimum statute for this person, because I'm a reliable discerner of proportionality.
00:12:12
I have discerned what is proportionate on these facts, and it is not that.
00:12:17
It is not that.
00:12:17
And so you then have no problem.
00:12:21
There's no risk of anyone slipping through the cracks in that case.
00:12:26
Whenever the Crown brings such a case, it will be caught.
00:12:30
So I think on this view, on kind of this approach, the whole appeal to crown discretion is a complete red herring.
00:12:37
It's got nothing to do with crown discretion because whether the crown brings the case or doesn't bring the case, it will still be caught by the judge.
00:12:43
It has everything to do instead with the judge's ability to correctly discern proportionality, which as I've said, is already built in to the very argument in the first place, right?
00:12:54
Okay, so that's step one, that's step one.
00:13:02
The step 2 is like, you might think, okay, fine, fair enough, but this is a little bit unrealistic because like, judges are human, they make mistakes too.
00:13:13
They may impose a sentence that is in fact grossly disproportionate and not realize that.
00:13:24
And empirically, that seems like plausible to me.
00:13:26
It seems like, fair enough.
00:13:28
I think that that is very plausible, but consider what this implies.
00:13:38
If you think a sentence imposed by a trial judge is in fact grossly disproportionate, that must be because you think judges can make mistakes about proportionality.
00:13:54
But an appellate judge is just a judge.
00:13:57
It's just another judge.
00:13:59
So there's no reason to think that appellate judges are somehow immune from the same kinds of...
00:14:05
fallibility, especially if they're opining on a case based on a skeletal hypothetical rather than a full evidentiary record.
00:14:15
And so all we are imagining now is a case in which a trial judge has imposed a sentence and then an appellate judge would have imposed something else, right?
00:14:27
And that is just, without anything more, like just on that description, all you have is now a conflict of opinion, you have two different opinions.
00:14:34
We don't have, we can't say, well, one is definitely right and the other is definitely wrong.
00:14:38
You just got two people with two different opinions about this.
00:14:42
And so the kind of the way I put it here is that, you know, if judges aren't reliable, then just having more judges is not really the answer.
00:14:54
And more broadly, if the
00:14:59
worry here, the foundational worry is like, look, proportionality is hard and people make mistakes about that, including judges.
00:15:07
They make mistakes from time to time.
00:15:09
Well, like that seems
00:15:12
plausible, but that is a much broader problem than mandatory minimums.
00:15:16
That affects all sorts of just sentencing in general, mandatory minimum or not.
00:15:20
That's a problem about judging and how we can improve the quality of judging.
00:15:26
So the kind of making a particular rule for mandatory minimums, as a court has done, does not seem warranted.
00:15:37
So to sum up, if judges reliably detect, if judges are reliable at detecting disproportionality, then reasonable hypothetical device is unnecessary because they will always catch errors when those errors show up in court.
00:15:50
They will always catch them.
00:15:53
On the other hand, if judges are fallible and make mistakes about proportionality, then the use of reasonable hypotheticals is question begging because the problem of judicial error is not a problem that can be fixed by asking another judge to just do it over again.
00:16:07
That's like, oh, you flip one coin and you're not sure of the result, so you flip another coin.
00:16:12
Like that's not really super helpful.
00:16:16
Okay.
00:16:17
So I spent a little bit of time on this again, because it's a kind of very commonly given argument about why the court really needs to use a reasonable hypotheticals.
00:16:25
And I really hope to persuade you that argument is a lot weaker than it seems.
00:16:34
We have a section in the paper talking about plea bargaining and kind of arguing why plea bargaining doesn't really change the basic argument here.
00:16:42
For interests of time, I'm just gonna skip this, although I'm, you know, happy to discuss plea bargaining in questions in the Q&A as well.
00:16:54
I mean, I guess just very briefly, what I will say, the basic intuition here is that just as with trial pleas,
00:17:04
The guilty plea requires where we have a kind of negotiated plea and the parties go in together on a joint position that is where crown and defense say the accused has agreed to plead guilty to this offense.
00:17:15
We crown and defense both think this roughly, this kind of punishment is the appropriate punishment.
00:17:21
Judges still need to approve those joint positions.
00:17:26
And so if you, again, that just creates the same issue.
00:17:28
So if you think judges are reliable at discerning gross disproportionality, they will observe it at that point.
00:17:34
And I would also point out that in the case called Anthony Cook, the Supreme Court insisted that judges review joint positions in a very, very deferential manner, which suggests that the Supreme Court actually does not think it's that big a problem that people, that crowns are using, are extracting disproportionately harsh plea positions.
00:17:56
The Supreme Court could be right or wrong about that, but that does seem to be their view.
00:18:02
Okay.
00:18:04
So I want to now move on to kind of the second line of argument.
00:18:14
So I think the use of reasonable hypotheticals in section 12 mandatory minimum context creates a whole host of like kind of weird doctrinal problems that seem a little bit ad hoc to us.
00:18:30
I mean, for one thing, it effectively seems to remove standing requirements for this particular issue and this particular part of the charter in a way that seems a little bit weird, frankly.
00:18:43
It doesn't seem to be that consistent with some of the approaches to over-breadth, constitutional arguments about over-breadth, because the over-breadth cases are usually about asking whether a statute is broader than necessary to achieve Parliament's objective.
00:19:00
whereas the Section 12 context is about asking, oh, we know what Parliament's objective is, just maybe they shouldn't have that objective, maybe it's limited by other.
00:19:10
a rights guarantee such as rights against gross disproportionality.
00:19:13
So it's just a conflict of kind of opining on the merits of parliament's objective rather than saying, okay, well, here's your thing, the thing that you want to do, but maybe you could do it in a better way, a more tailored way.
00:19:26
And we also, sorry.
00:19:32
We also, we also,
00:19:35
We don't think it's on all fours with statutory interpretation arguments because none of these cases involve disputes about the meaning of the mandatory minimum.
00:19:44
All of these cases, everyone's clear about what the minimum means.
00:19:47
They just disagree about whether it's a good idea or not.
00:19:49
So we don't really think it's a statutory interpretation kind of a case.
00:19:53
But the main puzzle that I want to kind of draw to your attention today is a bit broader.
00:20:03
So the Supreme Court has, I think, consistently in its other sentencing cases, characterized sentencing as individualized, indeed, super individualized.
00:20:16
Indeed, I would go so far as to say super duper individualized, right?
00:20:20
So I've given you a little bit of kind of text from various cases to give you a flavor of this.
00:20:25
They commonly kind of make these kinds of statements for, in context such as when they're chiding appellate courts for being too aggressive in reviewing trial courts' decisions.
00:20:36
And they're trying to say, like, judges, appellate judges, you should not be so quick to substitute your judgment for that of the trial court judge.
00:20:42
Well, like, why not?
00:20:44
Well, because sentencing is a delicate art.
00:20:46
It's profoundly contextual, and, you know, so on and so forth.
00:20:52
And the idea here is that we want
00:20:55
And that judging, sentencing is something that judges should do on a case-by-case basis, each case on its own, right?
00:21:03
Not comparing it to other cases.
00:21:04
We're just saying, you in the stand before me, in all your particularity, the offense that you did, all your history, the history of your inaction with the victim, if there is one, what brought you all these various sorts of things.
00:21:18
And this is a kind of...
00:21:24
whatever you want to call it, multifactorial balancing, ineffable judgment, rub your hummy, pat your head, say something, depending on how you want to characterize it, but it's a very individualized process that does not admit of general rules.
00:21:38
It's very hard to generalize, right?
00:21:42
That seems to be the approach the court generally takes towards sentencing.
00:21:51
But in its mandatory minimum cases, the Supreme Court pronounces fit and proportionate sentences based on extremely skeletal.
00:22:01
Hypothetical.
00:22:02
So recall the hypotheticals from the first slide, but that's basically the case.
00:22:06
Like they're basically imagining in one or two sentences the essential facts of the case.
00:22:11
And then they're like, oh, given that hypothetical, like here's what the fit and proportionate sentence would be.
00:22:17
And since these are hypothetical cases, there's no evidence, there's no testimony, there's no pre-sentence report, there's no adversarial testing on a developed record, none of it.
00:22:27
It's like just the hypothetical.
00:22:28
So like in a classroom, right?
00:22:31
So I think it's worth thinking about what the court is claiming here.
00:22:37
If they're claiming they can confidently determine the fit and proportionate sentence on those facts, and yet they're simultaneously telling appellate courts, you can't second guess trial judges because sentencing requires such
00:22:53
incredible like immersion in the facts of the case, which are so difficult to generalize about and so endlessly variegated, so contextual.
00:23:04
Like, I think there's an obvious tension here, right?
00:23:07
There's an obvious tension here, because if you really can just say, given those like that sentence or two, and each sentence contains, somewhere, some relatively small number of facts, like I can tell you what proportionality, what's proportionate, and certainly can tell you what's disproportionate, then it's like, well, okay, I guess it looks like sentencing can be subject to general rules, because that's what you just did.
00:23:29
And if it can be subject to general rules, then it's like, well, like,
00:23:34
You know, A, appellate courts could do that by aggressively setting and enforcing ranges and starting points and things like that.
00:23:42
And on top of that, so could Parliament.
00:23:44
Parliament could do the same thing, which is, in effect, what they are doing with the mandatory minimum statutes.
00:23:57
And so I will say that
00:24:03
kind of for the record, our own view is that sentencing is not really as individualistic as the court typically says it is, commonly says it is.
00:24:19
I think sentencing is actually somewhat predictable.
00:24:21
It's not perfectly predictable, but somewhat
00:24:25
predictable, especially to experienced counsel.
00:24:29
Experienced counsel very commonly have a pretty good idea of what a case is so-called worth.
00:24:34
Like if you tell them the basic facts, like it may be, by the way, also like which judge you're appearing before, they'll have a sense like, yeah, this is roughly what you might expect, which would be kind of hard to explain if there really was no pattern to sentencing.
00:24:50
Appellate courts, there is in fact
00:24:52
There's, it's not totally free ranging, but there is some level of appellate review of sentencing on the merits, which would again be like hard to explain if sentencing were super duper individualized.
00:25:05
If it were super duper individualized, there should just be no appellate review.
00:25:08
There should be like, you get one shot and that's it.
00:25:11
Because we don't even know what it would mean to make a mistake in that kind of context.
00:25:16
And I think also, like,
00:25:22
There's a lot of heat about mandatory minimums, like super controversial politically.
00:25:30
No one seems to have a problem with mandatory maximums, statutory caps on acceptable punishments.
00:25:37
But if you really took the view that like, you know, when it comes to a sentence, like anything goes, like, I don't know, like I decide on the facts before me and I'm not making any generalizations.
00:25:48
then mandatory maximums are just in trouble, just as much trouble as mandatory minimums, because they also impose a rule that constrains across cases in a way that's insensitive to that context.
00:26:01
So for a lot of reasons, I actually think...
00:26:03
that this kind of first point number one there, I mean, my kind of prior on that is that the Supreme Court's exaggerating a little bit.
00:26:10
Like not completely.
00:26:11
The sentencing is there is definitely a subject, a lot of subjectivity and variation there.
00:26:15
I don't want to deny that.
00:26:16
And there's an appropriate level of subjectivity and variation.
00:26:20
It's just not endless.
00:26:21
There is some degree of predictability there.
00:26:23
That's kind of my own view about this.
00:26:29
All right.
00:26:36
So now let's move to a broader point, Trent.
00:26:41
I'm going to offer a kind of foundational diagnosis, as it were.
00:26:50
Like what's going on here?
00:26:52
Like we've got these arguments about why you have to do this thing using reasonable hypotheticals that we don't see in other parts of the law, including other parts of public law, criminal law, or constitutional law, this kind of weird thing.
00:27:05
We don't see other countries doing this.
00:27:06
It's kind of strange.
00:27:08
The arguments they give are like not super compelling, creates a lot of institutional problems.
00:27:14
There's other things about separation of powers that I've kind of skipped over.
00:27:17
It also creates a bunch of doctrinal puzzles like
00:27:20
Why are we doing this?
00:27:20
What's going on here?
00:27:22
What's the problem?
00:27:25
And our suggestion is that the Supreme Court has gone so far off the track in these Section 12 mandatory minimum cases, because it's operating on the assumption that there is an identifiably fit and proportionate sentence.
00:27:46
You can identify a fit and proportionate sentence
00:27:48
for a case by looking at nothing more than that case, looking at the case in isolation, and indeed that they can determine what the fit and proportionate sentence is by looking at the case in isolation.
00:28:03
And that's just not true.
00:28:07
That's like false.
00:28:08
That's our claim.
00:28:11
Proportionality is a relational property of sentences, not an intrinsic property.
00:28:20
So kind of the first thing I would kind of say to kind of motivate this a little bit is that most of the actual cases at the Supreme Court of, you know,
00:28:34
Smith, Hills, Noor, Bertrand, Machan, Sanville, all the other ones, involve quite a bit of judicial disagreement.
00:28:46
The majority of these cases were decided over dissents.
00:28:51
And if you look beyond just the Supreme Court record, but look at the courts of appeal and the trial court as well, with only one exception, Bertrand, Machan, every single one of those cases.
00:29:04
featured disagreements between judges.
00:29:05
So there's a high degree of inter-judge disagreement here, whether at the dissents on the bench at the Supreme Court or differing opinions by trial judges or provincial courts of appeal.
00:29:18
So the judges presumably agree on the facts and they agree on the relevant principles of sentencing.
00:29:24
It's not like someone's like, oh, I forgot that proportionality is important.
00:29:27
Like, oh, silly me.
00:29:28
Or I thought this was a murder case.
00:29:30
I didn't realize it was a robbery case.
00:29:32
Or
00:29:34
I'm exaggerating a little bit, but these are truly not cases where the judges, the disagreement can be explained on the basis like, oh, I just had a misapprehension of the facts, or I think these principles are completely not relevant.
00:29:45
They all agree on what the relevant principles are.
00:29:49
They just weigh them and apply them differently in particular cases.
00:29:55
So I think
00:29:58
That casts some doubt on the proposition that the Supreme Court, or indeed any court, is well-placed to discern the fit and proportionate sentence simply by attending to the case on its own, by applying principles, general principles, sentencing to a discrete set of facts and then spitting out some answer.
00:30:17
I'm like, yeah, that's the right answer.
00:30:20
I'm not so sure about that because the track record of judges doing that is pretty bad, actually.
00:30:31
So on a relational view of proportionality, the starting point is that there are lots of different sentences, lots of different punishments that could in principle be proportionate for any given set of facts, any given offense, any given offender.
00:30:53
There's lots of different things that could potentially be proportionate.
00:31:00
Which one is the appropriate punishment?
00:31:03
Which one is, for us, the proportionate sentence?
00:31:07
It cannot be determined by looking at the facts alone, but you want to look at, okay, what are our overall commitments in our system of law?
00:31:15
When we look at our justice system, what are the range of punishments it's imposing in other cases, cases that are like this one along relevant dimensions and unlike it in other dimensions?
00:31:27
Do cases that the law would regard as more aggravated, what do those get?
00:31:33
Cases that the law would regard as more mitigated, what do those get?
00:31:37
And you do this along a number of different legally relevant.
00:31:42
dimensions and you try and get a sense of the overall pattern and you fit the particular case into that broader pattern, right?
00:31:51
So it's the context, how this case relates to the overall pattern of cases that gets you a sense of saying, okay, we've got a broad universe of potentially proportionate sentences.
00:32:01
Which one is actually proportionate?
00:32:03
Well, we have to look at our system of punishments as a whole.
00:32:10
And it's like, I think this is a very compelling view.
00:32:12
It is, I think basically some version of it is broadly accepted by virtually every penal theorist.
00:32:20
Ben can correct me if I overstate on that.
00:32:24
And not just that, I think the Supreme Court has itself acknowledged this from time to time.
00:32:31
So I put a quote from a case called Friesen on the board where the court is basically making some version of that claim.
00:32:46
So I will kind of just try to wrap up very quickly.
00:32:49
Once, if you agree that proportionality is relational rather than intrinsic, the doctrinal puzzles,
00:32:55
kind of fall into place.
00:32:58
The contradiction with individualized sentencing, the displacement of crown discretion, the invasion of parliament's lawmaking authority, these all flow from the underlying conceptual error that the court makes in thinking that it can, on its own, just looking at one single case, determine what the fit and proportionate sentence is.
00:33:17
And sort of more constructively, so like I've kind of like been here for like the last
00:33:21
30 minutes, basically telling you all the various ways I think the Supreme Court has gotten things wrong and why it's all messed up and stuff like that.
00:33:29
And unless I end on a down note, I would say, what would be a more constructive way of going forward?
00:33:35
I think.
00:33:36
A more constructive way of dealing with Section 12 is to say, look, Parliament's created a mandatory minimum, or Parliament's intervened in some way in our sentencing system.
00:33:47
And what we want to know under Section 12 is like, what kind of disruption, how great a disruption does this create to our established norms about sentencing?
00:33:56
Is this consistent, roughly consistent with existing practice?
00:34:01
And if it's not, presumably in many cases, it won't be perfectly consistent, like how gross a disruption is it?
00:34:06
Is it a completely unprincipled disruption that kind of throws the whole system out of whack?
00:34:10
Or is it like, yeah, okay, within some realm of a reasonable disagreement there?
00:34:20
Now, I want to say a little bit before I close on some kind of more contentious matters, maybe, because I suspect that's part of what motivates a lot of the discussion around this topic.
00:34:35
So
00:34:36
Speaking for myself, I think what may actually be going on here is that the court, the Supreme Court, is not...
00:34:46
necessarily super interested in proportionality per se, so much as they are in preserving judicial power against the legislative encroachment.
00:34:55
It's like, we want to make sure, Parliament, you keep your grubby hands off sentencing.
00:34:59
That's for judges, right?
00:35:01
And this happens to be a convenient way of doing that, an aggressive way of doing that.
00:35:08
Now, mandatory minimums are strongly associated with a very harsh kind of
00:35:15
tough on crime approach, you know, strongly associated with right wing governments.
00:35:21
And in fact, the Harper administration did create a whole bunch of mandatory minimums.
00:35:26
Most of the ones that have been struck down in the last couple of years have been Harper era minimums, although liberal governments have created mandatory minimums as well.
00:35:37
So it depends like depending which government is like what it's about, whether it's drugs or, you know, child sex offenses.
00:35:44
And these are cases in which a government of the day is effectively saying, hey, courts, we think you're not taking this type of crime sufficiently seriously.
00:35:52
Different governments are going to have different priorities about this, but they're saying like, we think you're not taking this seriously.
00:36:02
So I think it's noteworthy that in the last 15 years, I would just repeat, that Canadian courts have struck down over three dozen mandatory minimums.
00:36:10
The overwhelming majority of charter appeals, 76%, brought between 2008 and 2023, involving Section 12 claims against minimums, were successful.
00:36:22
And not because on the merits of the individual case that they were injustice, but just because they might be.
00:36:29
So the overwhelming majority of these challenges have been successful in the last couple of years.
00:36:35
I would say it's really hard to characterize
00:36:38
lopsided practice like that as dialogue.
00:36:40
That doesn't look like dialogue.
00:36:42
When three quarters of legislative initiatives are invalidated based on an imaginary hypothetical scenario, that looks less like dialogue and more like the assertion of judicial supremacy, a kind of my way or the highway approach.
00:36:56
So last thing, I just want to be like really clear about this.
00:37:00
Neither myself and my co-author are fans of mandatory minimums.
00:37:04
We don't think they're like a great idea as a matter of policy.
00:37:07
But the question before us is not one of like what's reasonable policy, criminal crime policy, but one of constitutional method.
00:37:16
We think a more defensible approach would evaluate mandatory minimums for their consistency with existing sentencing norms in actual concrete cases, the usual pattern of adversarial testing in common law courts.
00:37:33
This would preserve meaningful Section 12
00:37:37
review while respecting both parliament's institutional competence and principled limits on judicial power.
00:37:46
The current doctrine, we think, sacrifices both values for the sake of maximizing judicial power over sentencing.
00:37:54
That's the paper.
00:37:57
So thanks for your attention.
00:37:59
I look forward to your thoughts.
00:38:01
Great.
00:38:02
I think, unfortunately, we are a couple of minutes past time, so we've got to let folks get to their next meetings.
00:38:08
But let's all thank very much, Vincent Chao, for this great presentation.