The Supreme Court’s ruling on Friday could change the way mandatory minimum sentences are handled.
The use of imaginary people to commit made-up crimes will be at the center of a Supreme Court ruling this week on the constitutionality of mandatory minimum sentences for certain firearms offences.
Little known outside of the legal world, the fabricated scenarios have helped Canadian courts overturn dozens of mandatory sentences in the past five years, ranging from illegal gun possession to drug dealing outside of a school to possession of child pornography.
The idea is that if a sentence were cruel and unusual punishment for a person, it cannot stand, even if that person lives only a “reasonable hypothetical” existence, as the courts call it.
But now, after a high-ranking Alberta judge urged the Supreme Court to undo 30 years of his own decisions on the subject, the practice of using made-up circumstances will come under the microscope on Friday.
The land’s highest court will rule on the sentencing of a Lethbridge, Alta. man, Jesse Hills, who fired rounds from a bolt-action hunting rifle into a home, terrorizing a family. The mandatory minimum sentence for discharging a firearm in an occupied place is four years.
No one, including Hills’ own defense attorney, said the minimal punishment was cruel and unusual (defined as grossly disproportionate or an outrage to Canadians’ sense of decency) for what he had done.
But Mr. Hills’ legal team offered a hypothetical young man firing an air rifle or BB gun in a home, an offense covered by the minimum. Firearms experts, who testified about the imaginary scenario, said such weapons would not go through walls. Judge Rodney Jerke of the King’s Court Court then struck down the minimum and sentenced Mr Hills to 3 1/2 years in prison.
That process so infuriated Judge Thomas Wakeling of the Alberta Court of Appeal that, in a rare burst of judicial candor, he threw down a gauntlet to Canada’s Supreme Court, challenging it to undo decades of rulings on cruel and unusual punishment, beginning with a 1987 decision that established the use of fictitious persons.
“I suspect that most informed and reasonable Canadians cannot understand why the courts do this. I can’t,” she wrote about the hypotheses. In case that wasn’t clear enough, he added adjectives and phrases like “appalled,” “extremely concerned,” “remarkable to say the least,” and “a sad state of affairs.”
His colleague on the appeals court, Justice Brian O’Ferrall, used an “air of unreality” and “bizarre”. The court ruled 3-0 that the minimum sentence was allowed under the Bill of Rights and Freedoms, and sentenced Mr Hills to four years. (Judge Wakeling would have given him nearly six years.)
In a separate case also before the court, a minimum of five years is discussed for a first offense of robbery with a prohibited weapon. William Hilbach (accompanied by a 13-year-old accomplice) robbed an Edmonton store with a sawed-off rifle. The Alberta Court of Appeal majority overturned the minimum sentence, in part based on three hypothetical scenarios. Judge Wakeling dissented.
Mandatory minimum sentences have been controversial. The Liberal government has repealed some 20 mandatory sentences, including for drug trafficking and some weapons offences. But dozens of lows remain, and depending on Friday’s ruling, a new government could still reintroduce some lows.
So many mandatory minimums have been removed in various jurisdictions across the country that Canada now has a patchwork of sentencing provisions. (The rulings of one province do not apply in another, and sometimes judges within a province disagree on what is constitutionally permissible and what is not.) Judge Wakeling wrote that his own investigation revealed that mandatory sentences had been overturned in 147 cases. . The federal Justice Department says it has been tracking 217 constitutional challenges to lows.
Friday’s ruling will be closely watched. The attorneys general of three provinces and the federal prosecutor’s office intervened in the case to defend the mandatory minimums. Four civil liberties groups and lawyers stepped in to oppose them.
The Criminal Lawyers Association urged the court to preserve reasonable assumptions, saying in a presentation that they “have proven to be an effective and indispensable tool for the thousands of defense attorneys seeking fair sentences for their clients across the country.”
But the Ontario Attorney General asked the court to drop the term “hypothetical” altogether.
Compounding the problem, the mandatory minimums have helped increase the proportion of indigenous inmates in federal and provincial custody. The Canadian Bar Association, in its written argument to the court, said that the use of reasonably foreseeable characteristics of offenders “promotes access to justice and substantive equality in sentencing.”
The use of reasonable assumptions stems from a 1987 Supreme Court ruling. The case involved a man who imported a large quantity of cocaine. The mandatory minimum was seven years. The Supreme Court struck it down on the grounds that it might one day affect a young man who returns to Canada with a marijuana joint.
“The Court based its decision on a fictitious problem that would never happen in real life,” Justice Wakeling, appointed by Conservative Prime Minister Stephen Harper, wrote of that 1987 decision. He said no reasonable prosecutor would have brought charges against a young man. in the circumstances mentioned by the Supreme Court. However, the Supreme Court refused to trust the reasonableness of the prosecutors.
In his scathing ruling in the Hills case, Judge Wakeling said the 1987 decision introduced five concepts that “plagued” the justice system. The first is the concept that a jail sentence is cruel and unusual. Only barbaric practices such as burning a prisoner alive should be considered cruel and unusual, he said.