Tomorrow, the Supreme Court of Canada will release its highly anticipated decision in Nur. The case concerns the constitutionality of s. 95(2)(a)(i) of the Criminal Code. Section 95(1) makes it an offence to be in any place while (a) possessing a loaded prohibited/restricted firearm, or an unloaded prohibited/restricted firearm together with readily accessible ammunition; and (b) lacking an authorization or a licence under which he or she may possess such a firearm in that place. When prosecuted as an indictable offence, the crime carries a mandatory minimum sentence of 3 years imprisonment. The main question is whether the mandatory minimum is ”œcruel and unusual punishment” within the meaning of s. 12 of the Charter.

The Ontario Court of Appeal, in 2013, held that it is. It did not reach that conclusion, though, on the basis that a three-year sentence was grossly disproportionate for Mr. Nur himself. Rather, Mr. Justice Doherty, writing on behalf of a unanimous full bench, found that the three-year minimum would be grossly disproportionate for a reasonable hypothetical offender. It would be significant in itself if the Supreme Court affirmed the ruling – a mandatory minimum has not been struck down by the Supreme Court since its 1987 decision in Smith. But it would be especially significant if the Court relied upon the reasonable hypothetical test to do so: in Goltz and Morrisey, it seemingly adopted a narrow understanding of what hypotheticals would be ”˜reasonable’. The OCA’s unanimous opinion in Nur, authored by one of the most well respected criminal law judges in the country, could resuscitate this aspect of the s. 12 analysis.

Or not. The Crown, and several Attorneys General, have taken this opportunity to argue that the ”˜reasonable hypothetical’ test established in Smith should be swept away altogether. The Crown argues that the Supreme Court, in Goltz and Morrisey, has already effectively backed away from the more sweeping suggestions made in Smith. There is something to this claim though, as we will see, Doherty J.A. makes a compelling argument that the difference in approach is not as significant as it may appear at first glance. But more to the point, the Crown suggests that changes to the law since Smith have not made the reasonable hypothetical test sufficiently ”œworkable”: ”œIt has proven confusing and difficult to apply in that the distinction between what is a reasonable as opposed to a far-fetched example of the offence does not allow for a clear answer in practice. Similarly, it is unclear how one should use reported cases as a starting point, while discounting some of their specific facts.” That being the case, the Crown argues that Smith is ripe for reconsideration.

For its part, the AG of British Columbia has stressed that the use of reasonable hypotheticals is ”œincompatible with judicial restraint”. At the core of its argument, it seems to me, is the (albeit implicit) idea that, although courts make law, they do so primarily by way of resolving the particular controversy between the parties – i.e., the controversy that gave rise to the litigation in the first place. In a case like Nur, the AGBC effectively argues, the central question is whether this defendant is entitled to a remedy for unconstitutional treatment that has befallen (or will befall) him. The Court’s role is not to provide constitutional remedies for imaginary people, adjudicating claims in Neverland.

It was partly with this in mind that McIntyre J. dissented in Smith. He noted the ”œair of unreality” surrounding arguments that a mandatory minimum should be struck down, as cruel and unusual punishment, when no one claimed that it would result in a grossly disproportionate sentence for the actual defendant standing before the Court. As the AGBC noted in its submissions, one can see some echoes of this view – that the s. 12 inquiry should focus on the remedies owed to this offender – in Arbour J.’s concurring opinion in Morrisey. The current Chief Justice signed on to that opinion.

In my next post, I will say something about the SmithGoltzMorriseyNur line of authorities, with a view to explaining why this question of overturning Smith has arisen. Here, though, I would make a number of broad observations. First, and most obviously, this case represents yet another skirmish before the Supreme Court of Canada over the constitutionality of a piece of legislation enacted during the Harper administration. (The mandatory minimum in issue here was enacted as part of the Tackling Violent Crime Act of 2008.)

But, and this is my second point, it will be more interesting to see what the Court does with the suggestion that there is something fundamentally ”˜un-judicial’ about deciding s. 12 Charter cases by asking whether a given mandatory minimum would be grossly disproportionate if applied to a hypothetical offender. Many of these arguments were made in the latter half of 2014 – a year when, to put it mildly, charges of ”˜judicial activism’ were gaining momentum. In a term that has seen the Court issue bold rulings on the right to strike and the right to physician-assisted suicide, it will be interesting to see if it takes this opportunity to respond.

That brings me to my third point. Both Saskatchewan Federation of Labour and Carter were cases in which the Supreme Court overturned its own precedents by way of striking down legislation. Here, it is the Crown that seeks to have a precedent over-ruled. As we will see in my next post, there is at least a credible claim that the ”œlegal matrix” has changed substantially since Smith, though the Ontario Court of Appeal’s ruling in Nur provides strong reasons for doubt. That, too, could make this an intriguing decision.

One last thing. The Court only announced, at noon on Friday, that it would release its decision in Nur on the following Tuesday morning. Why only two business days of notice? Why the weird timing for the decision? Usually, of course, SCC opinions are released on Thursday or Friday. With ”˜ordinary’ rulings, notice is typically given on Mondays or Tuesdays; when the ruling is a ”˜blockbuster’, notice may come the previous Friday. The notice is important. It gives the media an opportunity to consult with lawyers and legal academics in advance, and work out the issues at stake in the judgment. When the decision is ultimately delivered, the issues have already been so thoroughly hashed over that the public is able (one hopes) to understand what it means. In this case, the media would have needed to talk to lawyers and academics on the weekend. As a result, comparatively little has been reported about a ruling that could have significant implications for mandatory minimum sentences. That’s a shame.

ADDENDUM: As I was writing my third entry on Nur, the Supreme Court announced that it will release three other judgments this week. One of them concerns the constitutionality of a by-law requiring prayer before municipal council public meetings. It is due to be released on Wednesday. Is there now a ‘two business day’ rule for notice? My Twitter feed is abuzz with anxious law profs wondering what this all means…

Photo by Ken Teegardin / CC BY-SA 2.0 / modified from original