Pubdate: Wed, 28 Oct 2015
Source: Province, The (CN BC)
Copyright: 2015 Postmedia Network Inc.
Author: Alan Shanoff
Page: 14


Section 12 of the Canadian Charter of Rights and Freedoms states:
"Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment."

It's hard to argue against this principle. Nobody should be subjected
to cruel and unusual treatment or punishment.

Capital punishment, torture and floggings obviously fall under the
category of cruel and unusual treatment or punishment.

Any grossly disproportionate or outrageous sentence, or any sentence
that would shock the conscious of the community, should also be
considered cruel and unusual.

I don't mind giving power to judges to make this determination. After
all that's the deal we made when the Charter was passed in 1982.

But I expect judges to make the determination using reasonable
criteria, based on the facts before the court.

However, the Supreme Court of Canada has given our courts the power to
make this determination without any regard to the facts before the

As a result, courts are considering hypothetical or made-up situations
that have never occurred and may never occur when deciding on the
issue of cruel and unusual punishment.

In an April 2015 decision, the SCC struck down the mandatory-minimum,
three-year sentence for illegal gun possession by a vote of 6-3.

But it wasn't that the imposition of minimum sentences on the two
people in the case was cruel and unusual.

They were, in fact, reasonable sentences.

However, the imposition of a mandatory three-year sentence would have
been cruel and unusual in a far-fetched hypothetical situation, a
made-up situation that had never been before the court.

So the Supreme Court justices struck down the mandatory-minimum
sentence law.

In other words, the court created or made-up a fact situation and
tested the minimum sentence against the made-up facts.

Based on these made-up facts, the minimum sentence was found to be
cruel and unusual.

Last month, an Ontario Superior Court Justice exercised this
hypothetical situation power to strike down another mandatory
sentence, the six-month sentence for growing between six and 200
marijuana plants for the purpose of trafficking.

Never mind that the case involved 1,020 marijuana plants found hidden
in a clothes dryer or that the minimum sentence wasn't unreasonable
for the accused person before the court.

Yet the court struck down the minimum sentence for the offence based
on a made-up situation not before the court.

This made-up situation involved a hypothetical person with a licence
to legally grow medical marijuana who mistakenly produced more plants
than allowed by the licence.

That such a case has never been prosecuted or come before the courts
is beside the point.

It might possibly happen, or so the argument goes, so the court
exercised its power in the case before it to strike down the
mandatory-minimum sentence law.

That this sounds somewhat Monty Pythonesque should be

I am no fan of mandatory-minimum sentences.

The removal of discretion in sentencing prevents judges from imposing
just and compassionate sentences when warranted by the peculiar facts
of a case.

The 25-year sentence with no chance of parole for 10 years imposed on
Robert Latimer in the compassionate death of his severely disabled and
suffering daughter springs to mind.

But allowing courts to strike down mandatory-minimum sentences based
on made-up facts not before the court is just plain silly.

Striking down a mandatory six-month sentence smacks of micromanaging

How low does a minimum sentence have to be before a court will allow
it to stand?

It seems courts are ignoring the precise wording of Section 12 of the
Charter. Section 12 doesn't refer to the imposition of cruel and
unusual punishment on hypothetical people, people not before the court
and those likely never to be before the court.

Of course, that doesn't mean the recent plethora of mandatory
sentencing laws is wise either.

Alan Shanoff is a Toronto lawyer and Postmedia News columnist. He also
teaches media law at Humber College in Toronto.
- ---
MAP posted-by: Matt