I had not planned to write another post on Nur. (My earlier posts are here, here, and here.) One aspect of the majority ruling, though, caught my eye – in particular, something in the ruling that isn’t there. The majority, as I observed in an interview with Justin Ling, made it clear that certain ”œpersonal characteristics” can be attributed to the offender in a ”œreasonable hypothetical”. This represented something of a departure from the approach adopted by the Ontario Court of Appeal, which took the view that hypotheticals should abstract away features of the offender – both mitigating and aggravating – and instead focus on modes of committing the offence in question. The SCC majority did not, however, say which personal characteristics could be attributed to the hypothetical offender.

This leads to an intriguing question: can the hypothetical offender have a particular race or ethnicity? Can he or she be Aboriginal? And if she can, what about the Supreme Court of Canada’s decisions in Gladue and Ipeelee? In those cases, the Court held that, in light of the continuing over-representation of Aboriginal persons in the Canadian criminal justice system, trial judges have a statutory obligation (under s. 718.2(e) of the Criminal Code) to consider the Aboriginal status of offenders before sentencing them to terms of incarceration. In particular, sentencing judges should take into account ”œ[t]he unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts” and ”œ[t]he types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.”

Now, of course, mandatory minimums by definition strip away some of the discretion of the sentencing judge. To the extent they require terms of incarceration, they prevent sentencing judges from engaging in the very sort of analysis demanded by s. 718.2(e) and Gladue.

In Nur, the majority observed that, in determining whether a given sentence would be proportionate, we must look to the foundational sentencing principles articulated in ss. 718 and 718.2 of the Code. This includes s. 718.2(e):

The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2 (c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)). [my emphasis]

The stage, then, is set: if Aboriginal status can be attributed to hypothetical offenders, there is at least a case that some mandatory minimums – in particular, those not attached to crimes of violence – are more vulnerable to a s. 12 challenge.

We should not raise expectations too high. I have a few reasons for urging caution. First, as I noted above, the majority in Nur did not say that hypothetical offenders could have racial or ethnic characteristics attributed to them. Rather conspicuously, the Court did not even cite Gladue or Ipeelee. This, I feel, cannot be a mere slip of the mind. The African Canadian Legal Clinic, in its submissions to the Court, explicitly argued that systemic factors should be available for consideration in the s. 12 analysis. In making that argument, it drew explicitly on the ruling in Ipeelee. For its part, the BC Civil Liberties Association likewise referred to Gladue. And only last summer, in Anderson, the Supreme Court was asked to decide whether exercises of prosecutorial discretion, insofar as they result in the application of a mandatory minimum to an Aboriginal offender, could offend s. 7 of the Charter. The Court unanimously said no, on the basis that the constitutional challenge must be to the legislation itself and not to the exercise of Crown discretion. The Court may well prefer to address the s. 12 implications of Gladue in a case where the actual offender is Aboriginal – but to suppose that this issue is not at the forefront of its collective mind simply defies belief.

Second, the majority decision in Nur, if it stands for anything, stands for the proposition that the scope of a given mandatory minimum – i.e., the class of offenders to whom it might ”˜realistically’ be applied – should be determined by looking to the intentions of Parliament, and not by asking how the offence in question is actually being enforced or prosecuted. It is, after all, precisely for that reason that the majority rejected the position endorsed by Moldaver J. It is not obvious to me how considerations like systemic over-representation can get a foothold in the sort of analytical framework adopted by the majority.

In the end, the issue may boil down to something like this. The majority’s reasoning in Nur was premised on the idea that a mandatory minimum’s grossly disproportionate impact on a single hypothetical offender can render it unconstitutional. In determining whether it is realistic to expect the mandatory minimum to be applied to that sort of individual, we should ask whether the legislature intended to target the kind of conduct he or she putatively engaged in. If the answer to that question is ”˜yes’, then the mandatory minimum is unconstitutional. And it is unconstitutional whether the court finds that one person would have been caught, or one million. Numbers don’t matter, at least in themselves.

Surely, one might say, the fact that Aboriginal offenders are over-represented in the criminal justice system makes it ”˜realistic’ that a given mandatory minimum will be applied to an Aboriginal offender with a particular sort of background. But that, by itself, shows nothing. So long as the hypothetical offender engaged in conduct that is ”˜captured’ by the offence in question, he or she is already ”˜realistic’ within the meaning of the majority judgment – whether he or she is Aboriginal or not. The Crown certainly cannot argue that she should be dismissed as an unrealistic offender by virtue of her Aboriginal status. (That would be perverse.) But it is by no means obvious that the greater statistical likelihood that an Aboriginal offender will be prosecuted for the offence in question makes any difference to the s. 12 analysis. If that matters, the reasons why it matters are not to be found within the four walls of Nur.

Still, I don’t want to sound too pessimistic. Maybe, for the reasons I just gave, the systemic over-representation of Aboriginal people in the criminal justice system cannot factor into the reasonable hypothetical framework developed in Nur. But that still leaves the second Gladue principle. Nothing I have said so far would block the court from asking whether a given mandatory minimum permits consideration of alternative sentencing procedures and sanctions, given the ”˜realistic’ possibility that the offence in question will be applied to an Aboriginal person. Indeed, assuming a hypothetical offender can have racial or ethnic characteristics attributed to him or her, this strikes me as an almost irresistible conclusion.

I am not passing judgment on whether ”˜this’ or ”˜that’ mandatory minimum would be grossly disproportionate if Gladue was brought into the frame. We may see very soon the impact it could have. In Michael, Mr. Justice Paciocco declared that the victim surcharge in s. 737 of the Criminal Code is unconstitutional because it would result in a grossly disproportionate sentence for a reasonable hypothetical offender. (The effect of that ruling is explored in Sharkey.) The hypothetical offender in Michael was constructed to resemble the actual Inuit offender before the Court, one for whom a Gladue Report was submitted. At the time, Paciocco J. had to address the apparent constraints imposed by the Ontario Court of Appeal in Nur.

[114]   I am mindful in arriving at this position that in R. v. Nur… [the Ontario Court of Appeal] directed that ordinarily in constructing reasonable hypotheticals, courts must look at the ”œconduct that includes all of the elements of the offence that triggers the mandatory minimum, but no more. Characteristics of individual offenders, whether they aggravate or mitigate, are not part of the reasonable hypothetical.” In this case, however, I am not conjuring up a mythical character to enhance the impact of the sentence, which is what I understand this direction to be preventing. I am using the very offender bringing the challenge. Moreover, that admonition does not appear to fit the case of a mandatory victim surcharge because the mandatory victim surcharge has no ”œelements of the offence.” It is a roving punishment and must be evaluated as such. I am therefore of the view that I am permitted to look at the proportionality of the sentence realistically, by testing the proportionality of the sentence using the entire concept of cardinal proportionality and not just the ”œseriousness of the offence.”

Whether or not Paciocco J. was right to think that this approach was open to him before the Supreme Court’s ruling in Nur, it may well be open now. His ruling has driven much of the legal argument in other Ontario cases addressing the constitutionality of the victim surcharge. The issue of attributing Aboriginal status to hypothetical offenders is already squarely before the Ontario Superior Courts.