Law Times

Law Times • November 17, 2014 Page 7 www.lawtimesnews.com COMMENT Despite flaws, reasonable hypothetical scenarios remain key to judicial oversight arlier this month, the Supreme Court heard arguments in R. v. Nur concerning the three-year mandatory minimum sentence for possessing a loaded prohibited fire- arm after the Ontario Court of Appeal struck down the law as cruel and un- usual punishment under s. 12 of the Charter of Rights and Freedoms. This is obviously an important case, both for the narrow constitutional point at issue and for what it will say about the court's approach to mandatory minimum sen- tences going forward. We all know mandatory minimums tend to be unpopular with judges, and each year the government adds more of them to the Criminal Code. But the judicial inclination to defer to Parlia- ment's policy prerogative in sentencing matters is also strong. I've expressed concern more than once about the Americanization of criminal justice policy under the cur- rent federal government, and manda- tory minimum sentences are one aspect of that. However, for a bit of perspective, it's heartening to compare the state of our case law in this area with that of our neighbours. The American law under the Eighth Amendment is, frankly, a disgrace. In Harmelin v. Michigan, the Supreme Court upheld a sentence of life without parole for possession of cocaine. Justice Antonin Scalia purported to find "orig- inalist" reasons for denying that the Eighth Amendment had anything to do with proportionality in sentencing. Im- prisonment, according to this view, can never be cruel and unusual, no matter the duration. Then in Lockyer v. An- drade, the court upheld a three-strikes law that sent a person to prison for the rest of his life for stealing five video- tapes from a Kmart. The dry legalism of the majority opinion, written by Justice Sandra Day O'Connor, reveals a stun- ning indifference to the casual inf lic- tion of disproportionate suffering by the state. Fortunately, our court didn't buy this approach as it took a robust approach to s. 12 in its initial foray into the area in the 1987 case of R. v. Smith. The court struck down a seven-year mandatory sentence for im- porting narcotics, positing the hypothetical scenario of a kid returning from spring break in the United States with a joint in his pocket. While Smith himself was a rather substantial cocaine trafficker who probably deserved at least seven years, the possibility of a more sympathetic offender receiving the same sentence was enough to push the law across the line of unconstitutionality. A few years later, in R. v. Goltz, current Chief Justice Beverley McLachlin (albeit in dissent) would have invalidated a sev- en-day mandatory minimum sentence for knowingly driving while prohibited. The contrast with the hands-off Ameri- can approach was stark. Realizing that few mandatory mini- mum sentences would survive scrutiny if the defendant could invoke any fan- ciful hypothetical scenarios to defeat them, the court tried to split the dif- ference by developing the concept of the "reasonable hypothetical" in subse- quent cases. Under this approach, the court can still strike down a mandatory minimum based on hypothetical facts, but they should be realistic and prefer- ably ref lected in actual decided cases. In Nur, appeal court Justice David Doherty conjured up the figure of the "otherwise law-abiding responsible gun owner" and determined that a three-year stint would be grossly disproportionate for that person, who wasn't before the court. I've always found this approach puz- zling. It's at odds with how constitutional adjudication works in nearly every other context I'm aware of. Courts are gener- ally loath to decide constitutional issues in the abstract, and the Supreme Court has increasingly emphasized the need for claimants to develop a proper factual record at trial even where the facts are more in the nature of studies and statistics than traditional witness testimony. This makes sense, both prag- matically and in principle, as the real-world impact of an alleged Charter infringement is what matters and armchair speculation is a poor substi- tute for proof. We saw the power of solid facts dictating a bold constitutional result last year in Canada (Attorney General) v. Bedford. So while watching the webcast of the Nur hearing, I wasn't surprised that a number of judges expressed dissatisfac- tion with the "reasonable hypothetical" method both as a matter of practice and principle. The judges noted that decid- ing constitutional cases based on hypo- theticals goes against the court's clear policy of basing Charter decisions on proven facts. The chief justice observed that the methodology appears more in line with how European constitutional courts review laws prior to enactment than our own common law fact-bound approach. She also observed that lower courts have found it difficult to distin- guish reasonable hypotheticals, which are fair game, from far-fetched scenar- ios that are out of bounds. McLachlin pointed out the approach may ignore important issues by dismissing real po- tential infringements as not sufficiently likely to merit scrutiny. And in my view, the methodology seems prone to en- couraging judges to indulge their own biases and life experiences in deciding who counts as a suitably sympathetic imaginary offender for s. 12 purposes. If mandatory minimums harmed only the offenders directly subjected to them, I might well consider this critique dispositive. But in reality, mandatory minimums produce systemic effects well beyond the offenders actually sen- tenced under them. They transfer dis- cretion from the courts to prosecutors, making the decision of what to charge (or what plea to accept) more significant than the judge's imposition of sentence. For every offender actually sentenced to a mandatory minimum, there are likely many others who plead guilty to something else in order to avoid it. How many of them had a plausible defence? Moreover, why should we tolerate the displacement of discretion from the relative transparency of an open court- room to the relatively opaque setting of a prosecutor's office? All of this is enough to convince me that the courts need to keep consider- ing hypotheticals in order to maintain some kind of effective judicial control over proliferating mandatory sentences. If we wait for a genuinely cruel and un- usual case to come before the courts, the law has already worked unfairness into countless others. The reasonable hypo- thetical approach, whatever its f laws, at least provides a licence to litigate the is- sue in ordinary cases without needing to wait for an unusually angelic offend- er to walk through the courtroom door. Better yet, the court also should con- sider resurrecting the doctrine of con- stitutional exemption. I think the court took a wrong turn in R. v. Ferguson when it decisively rejected the availabil- ity of exemptions for offenders facing a mandatory minimum. In the court's view, allowing individual exemptions based on personal, case-specific cir- cumstances would neuter the overall force of a law whose very point is to admit no exceptions. But I think that ignores the reality, already mentioned, that discretion is an intractable feature of the system. The only question is who gets to exercise it. Our own legal history and the sorry example of our neigh- bours to the south demonstrate to me that our system functions best when the law vests that discretion in the court. LT uMatthew Gourlay handles crimi- nal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. LET'S HAVE RESPECTFUL DIALOGUE ON RACE The Canadian Association of Black Law- yers, the Federation of Asian Canadian Lawyers, and the South Asian Bar Asso- ciation collectively comment on an article in the Nov. 3 issue of Law Times, "Non- white lawyers feel alienated, report finds," by Julius Melnitzer. We jointly commend the Law Society of Upper Canada for taking steps to iden- tify and address the barriers and issues faced by racialized lawyers and paralegals by issuing its consultation report on Oct. 30. This important work is the result of numerous interviews, focus groups, dis- cussions, and a survey sent to all members of the LSUC. The term "racialized" has been ad- opted as the preferred term used to de- scribe visible, ethnic or racial minorities as defined by the Ontario Human Rights Commission. The report's findings on the challenges racialized lawyers face give voice and credence to the experiences and issues that our members have confronted for years. Our respective associations have man- dates to advocate for diversity and in- clusion and act collectively to overcome barriers. The challenges identified in the report include: • Racist and discriminatory remarks and behaviour. • Bias and stereotyping based on race or ethnic background. • Barriers and challenges unrelated to merit in securing articling positions, employment, and advancement. • Social and economic exclusion, isola- tion, and alienation from the domi- nant culture. • A lack of both social and professional networks, connections, and mentoring critical to advancement and success in the profession. The report includes a consultation process. The upcoming consultation will inevitably elicit comments based on a disbelief that any barriers exist and an underlying assumption that any failure to advance by racialized lawyers and parale- gals is a result of a lack of merit rather than barriers. Such comments betray a lack of awareness and respect for the actual ex- periences of racialized licensees and are a hindrance to real progress towards mak- ing the profession inclusive and ref lective of Canadian society. Historically, the legal profession has been among the most conservative and, until relatively recently, excluded women, racial and religious minorities, and oth- ers. The report is an attempt to address remaining latent biases, further level the playing field, and affirm that discrimina- tion in the legal profession must be ac- knowledged and fully addressed. Lawyers and judges, as officers of the court and as part of the administration of justice, should embody and exemplify principles of equality, justice, and fair- ness. The empirical evidence from the report clearly shows that a large portion of the profession experiences exclusion, prejudice, and barriers to advancement that put our ability to uphold those prin- ciples in jeopardy and, from a public per- spective, cast disrepute on the adminis- tration of justice. The report is an exciting and unprec- edented opportunity for all of us to ref lect upon the barriers that remain in our pro- fession and consider the steps we can take towards a diverse, inclusive, and, conse- quently, more robust profession. Our three organizations jointly call for an open, respectful dialogue about how we can best overcome the challenges identified in the report. The first step to- ward this requires that the report be read with an open mind and a willingness to treat all lawyers and paralegals as equally valuable and contributing members of the legal profession. Arleen Huggins, president, Cana- dian Association of Black Lawyers; Lai-King Hum, president, Federa- tion of Asian Canadian Lawyers; Jayashree Goswami, president, South Asian Bar Association u Letter to the editor A Criminal Mind Matthew Gourlay E

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