In my first post on Nur, I observed that the Crown and several Attorneys General have invited the Supreme Court to overturn its foundational ruling in Smith insofar as it allows a mandatory minimum sentence to be struck down on the basis of a ”˜reasonable hypothetical’. These arguments, I noted, rest on three premises: that, even if the Court hasn’t expressly rejected this aspect of Smith, it has effectively undercut it; that, insofar as the reasonable hypothetical test survives, it serves only to confuse and dumbfound those who attempt to apply it; and that there is something fundamentally ”˜un-judicial’ about basing a finding of unconstitutionality on hypothetical scenarios that bear only a tenuous relation to the actual case being litigated.

To make sense of these arguments, we need to return to Smith and its aftermath. In Smith, the accused faced a seven-year minimum sentence for importing narcotics under s. 5(1) of the Narcotic Control Act. Such a sentence would not have been grossly disproportionate when applied to the accused, who had a prior criminal record and had imported a large quantity of cocaine. But, Lamer J. asked, what about the ”œyoung person who, while driving back into Canada from a winter break in the U.S.A., is caught with only one, indeed, let’s postulate, his or her first ”˜joint of grass’”? It was impossible to believe that a seven-year sentence could be anything other than grossly disproportionate when applied to that individual. On that basis, the Court struck down s. 5(1).

Smith raised a number of troubling issues. In Smith, Lamer J. strongly suggested that a mandatory minimum could not be regarded as cruel and unusual merely because there was the ”œpotential” that it would be grossly disproportionate for some offender. The finding of unconstitutionality follows from the ”œcertainty” or ”œinevitab[ility] that, in some cases, a verdict of guilt will lead to the imposition of a term of imprisonment which will be grossly disproportionate.” This idea was pushed further in Goltz. There, Gonthier J. (writing for the majority) remarked:

A reasonable hypothetical example is one which is not far-fetched or only marginally imaginable as a live possibility. While the Court is unavoidably required to consider factual patterns other than that presented by the respondent’s case, this is not a licence to invalidate statutes on the basis of remote or extreme examples. Laws typically aim to govern a particular field generally, so that they apply to a range of persons and circumstances. … The applicable standard must focus on imaginable circumstances which could commonly arise in day-to-day life.

Gonthier J.’s point is well taken. Given the ”˜open texture’ of statutory rules, we can almost always imagine some hypothetical offender whose conduct technically satisfies all of the elements of a given offence, but who deserves nothing like the mandatory minimum attached to it. If the reasonable hypothetical inquiry is to be workable at all, there must be some means of anchoring it.

To some extent, the above passage from Goltz itself gives us some insight. But just saying that a reasonable hypothetical cannot be ”œfar-fetched or only marginally imaginable as a live possibility” does not get us very far. Many hypothetical situations can seem only marginally imaginable until you imagine them. Imagination is funny that way. So do we get more guidance?

Well, yes and no. Gonthier J. appears to say in Goltz that, in constructing a reasonable hypothetical, a court should envision a scenario in which the hypothetical offender committed the offence in the same manner as the actual defendant (the ”˜mode of commission’ requirement). Furthermore, he notes that the court can treat the facts of the instant case as ”œan important benchmark”. Taken together, these comments suggest stringent limits on just how far the court can stray from the actual facts of the case before it. Later, in Morrisey, the Court indicated that it was appropriate to look at the facts of actual cases when fashioning reasonable hypotheticals. There is also, as Doherty J.A. noted, a hint in Morrisey that hypothetical offenders should be described at some level of abstraction: ”œIndividual characteristics of an offender that might mitigate or aggravate the penalty are virtually eliminated”. Thus, personal characteristics such as age and motive cannot form part of the hypothetical.

These are all important ways of putting a leash on the court’s imagination. They do, however, rather beg the question. Once we remove the personal characteristics of the offender, and envision him or her committing the offence in question in much the same way as the actual offender, there does not seem to be much basis for concluding that the hypothetical offender would deserve a sentence that is substantially different from the actual offender. So why consider the hypothetical offender at all? This is the crux of the argument made by the Crown in its written submissions to the Supreme Court: Even if Smith hasn’t been struck down yet, the reasonable hypothetical test has been so thoroughly neutered that it serves only as a source of confusion.

This brings us to the Ontario Court of Appeal’s ruling in Nur, which could change the terms of the debate. Mr. Justice Doherty denied that Goltz requires (at least in all cases) the reasonable hypothetical to posit an offender who commits the offence in question in much the same way as the actual offender. (Warning: this bit gets technical.) Goltz, Doherty J.A. argued, was a special case. The offence at issue in Goltz was ”˜driving while prohibited’. To be prohibited from driving in the first place, one must engage in some other offence or breach some other statutory provision or order. To know whether the mandatory minimum (seven days’ imprisonment and $300 fine) was grossly disproportionate, one would have needed to look at the seriousness of the underlying offence/breach. Otherwise, as Gonthier J. remarked, one would be ”œ[a]ssessing the gravity of the offence [of driving while prohibited]… in a vacuum.” There was, thus, a need to narrow the inquiry by focusing on the particular predicate offence triggering the prohibition of Mr. Goltz. Section 95(2), by contrast, has no predicate offence. Though the offence is broad, in the sense that it can encompass a wide variety of scenarios, we are not at sea to anything like the same degree. The reasoning at work in Goltz, then, has no application to a case like Nur (or Smith).

Is this valid reasoning? Keep in mind that the OCA was not really concerned with whether Smith should be overturned – it was proceeding on the basis that Smith remains good law insofar as it could be reconciled with Goltz and Morrisey. Doherty J.A., we might say, was trying to find a way of squaring the ”˜mode of commission’ requirement with the seemingly more open-ended inquiry undertaken in Smith. He did so; namely, by confining that requirement to cases where the mandatory minimum was attached to an offence predicated on the commission of some other, underlying offence. That might seem a bit shifty, but also keep this in mind: The Supreme Court has not disowned Smith, a case in which the reasonable hypothetical’s ”˜mode of commission’ scarcely resembled that of the actual offender. Quite the contrary, the Court in Morrisey approved of the hypothetical used in Smith.

This leads to a second point about the OCA opinion: Notwithstanding suggestions in Goltz and Morrisey that courts should look to actual cases to inform the reasonable hypothetical analysis, Doherty J.A. found that a hypothetical can be ”˜realistic’ 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”. That, again, follows from the Morrisey Court’s endorsement of Smith.

This does not, of course, mean that all bets are off. The fact that the hypothetical must describe the offender at a relatively high level of abstraction is important. (Certainly, Mr. Justice Doherty thought so.) After all, stack enough mitigating factors on top of each other and any minimum sentence is liable to crack beneath their weight. Still, it is clear that Doherty J.A.’s approach to Smith, Goltz, and Morrisey re-opens a door that looked closed. It allows the court to entertain scenarios that bear little resemblance to the actual case before it – to indulge all manner of ”˜what ifs’. We may, like the AG of British Columbia, wonder if this sort of inquiry is compatible with ”œjudicial restraint”. (See my previous post.) But whatever one thinks of the law as it was interpreted in Nur, the OCA’s judgment presents the Supreme Court with a clear set of options.

Tomorrow, we find out what it does. (Click here for part three.)

Photo by Thomas Hawk / CC BY-NC 2.0 / modified from original

Michael Plaxton is an Associate Professor of Law at the University of Saskatchewan. His research focuses on criminal law, constitutional law, and legal philosophy. His book, Implied Consent and Sexual Assault, published by McGill-Queen's University Press, is now available on Amazon. Follow him on Twitter @MichaelPlaxton.

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