In my second post on Nur, I noted that, in light of Mr. Justice Doherty’s reading of the Smith-Goltz-Morrisey line of authorities, a hypothetical may be ”˜reasonable’ even if there are no reported cases resembling it. It is enough for the hypothetical to ”œreflect[] the scope of the prohibition as described in the legislation”. Here, I want to focus on a closely connected issue: the implications of Nur for prosecutorial discretion (and vice versa).

There is an obvious sense in which prosecutorial discretion arguably should matter to the constitutionality of a mandatory minimum sentence. We count on the Crown not to charge individuals for a given offence merely because their conduct could be said to satisfy all of its essential elements. We rely on prosecutors to use a degree of professional judgment and common sense in deciding whether to charge individuals with one offence rather than another, whether to proceed summarily or by indictment, and indeed whether to charge them at all. As a practical matter, most or all of the hypothetical offenders for whom the mandatory minimum would be grossly disproportionate are unlikely to face it. That being the case, in what sense can they be said to be reasonable hypotheticals?

In Smith, however, Lamer J. tersely rejected the argument that a mandatory minimum could survive a s. 12 Charter challenge merely because the Crown used its discretion not to charge individuals with the offence triggering it:

In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter.

Smith does not stand alone. There are many other cases in which the Supreme Court has rejected arguments that Crown discretion can cure constitutional problems with legislation: see, for example, Nguyen; Hess, Lavallee, Rackel & Heintz, and Bain. Recently, in Anderson, it endorsed the flip-side of this proposition: there is no constitutional duty on the Crown to consider an offender’s Aboriginal status when deciding whether to limit the sentencing options available to a judge. In effect, the Supreme Court has held that, as a constitutional matter, the Crown’s prosecutorial discretion to use all of the options given to it by Parliament cannot be narrowed by the Charter. If legislation permits an unconstitutional result, the problem is with the legislation – not with the Crown’s decision to use it.

This brings me to Nur. Mr. Justice Doherty noted that a wide spectrum of conduct falls into s. 95(2). On one end of that continuum, he claimed, we have the sort of behaviour associated with ”˜true crimes’ – for example, carrying a loaded and unregistered weapon into a public location in contemplation of its possible use. Applied to this sort of behaviour, he suggested, s. 95(2) addresses a real, discernible harm, albeit at a ”˜preparatory’ stage. At the other end of the continuum, Doherty J.A. continued, we have conduct more closely resembling the sort typically addressed by ”˜regulatory offences’ – e.g., knowingly possessing an unloaded firearm for which one has a license and ammunition stored nearby, but who is in a location not covered by the terms of that license. This kind of behaviour, he found, is all but harmless.

In considering whether the three-year mandatory minimum would be grossly disproportionate when applied to the reasonable hypothetical offender, should we look at those cases potentially falling into the quasi-regulatory end of the spectrum? The Crown thought not. Section 95(2) is a hybrid offence. The Crown can choose to proceed summarily or by indictment. The three-year minimum, challenged in Nur, is only in play when the Crown proceeds by indictment. Presumably, any responsible Crown prosecutor will take into account the seriousness of an offender’s alleged conduct when deciding which way to proceed. On that basis, the AG of Canada has argued that hypotheticals on the less serious end of the spectrum should not be treated as ”˜reasonable’ or ”˜realistic’.

To make this argument, given the ruling in Smith, the Crown plainly needs to draw a distinction between the discretion not to charge an individual with a given offence, and the discretion to proceed summarily rather than by indictment. The lower-court ruling in Nur by Mr. Justice Code will have emboldened the Crown on this point. He suggested that Lamer J.’s comments in Smith were directed at the Crown’s discretion not to apply the law at all – to effectively negate the will of Parliament that individuals who have engaged in certain courses of action should receive ”˜this’ kind of punishment and not another. This sort of discretion, Code J. opined, is more constitutionally suspect (or, anyway, may well have been thought more dubious at the time Smith was released) than the sort of authority at issue here: namely, the discretion to apply the law, choosing from one of two charging options given to it by Parliament.

Part of me finds this distinction attractive. But, in light of the many other statements by the SCC cited above, it is not altogether surprising that the Court of Appeal rejected it. (Peter Sankoff has an article that is well worth a read on this point.) In any case, Doherty J.A. denied that Crown discretion even provided a reliable ”œsafeguard” for offenders on the quasi-regulatory end of the scale. This is not because he thought that the Crown would exercise its discretion capriciously or unprofessionally. Instead, he simply observed that the Crown is often not in full possession of the facts at the time when charging decisions are made. A case that, at first glance, appears serious enough to warrant a prosecution by indictment may, as first evidence emerges, come to seem (relatively) trifling.

By way of example, Doherty J.A. drew upon a variation of the facts in R v Snobelen. The accused had recently moved to Ontario from Oklahoma. Without his knowledge, a restricted firearm and ammunition were shipped to Ontario with his other property. He discovered the firearm and ammunition, and planned to legally dispose of them. He did not, however, do so with due haste. His wife reported the gun to the police. In Snobelen, the Crown proceeded summarily. But, as Doherty J.A. argued, it is all too easy to imagine a counter-factual scenario, in which the Crown proceeded by indictment – say, because it believed that the accused was using the weapon to intimidate his wife. Even if it came to light at trial (or during sentencing) that no such intimidation had occurred, it would make no difference to conviction or to the application of the mandatory minimum: the accused would receive three years imprisonment.

The Attorney General of Canada, in its written submissions, took issue with Doherty J.A.’s approach. In part, it continued to stress the distinction made by Mr. Justice Code between the discretion to charge and the discretion to proceed by indictment with respect to hybrid offences. But it also argued that Doherty J.A.’s reasoning ”œignores the common practice of early plea discussions, where counsel for the accused often brings mitigating facts to the attention of the Crown in the hope of beneficial treatment for their client.” Furthermore, the AG observed, the Crown has a strong incentive to exercise its discretion in a responsible manner: since the Supreme Court in Ferguson rejected the claim that constitutional exemptions can be used to remedy a s. 12 violation, proceeding by indictment with the ‘wrong’ offender will result in a declaration of invalidity.

It will be interesting to see what the Supreme Court makes of this argument in its judgment tomorrow.