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He was 20-years-old, and after chatting up a 13-year-old girl on Facebook – she had randomly typed “Mike” into Facebook, just for fun – had sex with her in a transit-station washroom. Caught in the act, Michael Alexander Ford of Edmonton was facing a mandatory minimum sentence of one year in jail for sexual interference.

But the judge struck down the obligatory sentence as “cruel and unusual punishment” under the Charter of Rights. It was “grossly disproportionate,” she said, not for Mr. Ford but for a “reasonable hypothetical” offender: someone who had survived a brain tumour that left him incapable of learning from his mistakes. That is, an imaginary person.

It’s a little-known aspect of how cruel-and-unusual punishment cases work in Canada. A judge must look first at whether the obligatory sentence, when matched to the offender, would be so extreme as to outrage Canadians. If the judge decides it is not that extreme (it can be harsh or disproportionate and still pass muster), the judge then must look at how the sentence would fit a reasonable hypothetical offender. This offender could be drawn from cases in other jurisdictions or be completely made-up, as long as the judge deems her creation “reasonable.” If the judge rules the mandatory minimum grossly disproportionate and therefore constitutionally invalid for the hypothetical offender, the judge may then sentence the actual offender as if the minimum does not exist.

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The scales of justice.

christine balderas/Getty Images/iStockphoto

In Mr. Ford’s case, Justice Joanne Veit of the Court of Queen’s Bench could give him a sentence she considered fair, once the minimum was off the table.

Much like the hypothetical offender, Mr. Ford had survived a brain tumour at 14; and while there was no proof of intellectual impairment, his social and psychological development had been arrested at 14 or 15, evidence showed. Moreover, Justice Veit said, the relationship between Mr. Ford and the victim appeared to be one of “genuine affection.”

“A court must be careful not to impose a middle-class, Romeo and Juliet type, expectation on what a relationship of genuine affection is for teenagers, especially street kids,” she wrote.

She gave him six months in jail.

It is not only Mr. Ford who benefits from her ruling. For the moment, at least, it appears Alberta has no minimum penalty for sexual interference. A sentence of house arrest is now possible.

The Ford ruling – being appealed by the Alberta Crown – demonstrates why many minimums set by Parliament, especially during the former Conservative government of Stephen Harper, have a short shelf life. In dozens of cases reviewed by The Globe and Mail in a national database search, judges have ruled these minimums invalid under the Constitution for guns, drugs and sex crimes against children. In a large number of such cases, they conjured up hypothetical offenders to explain why.

Even some criminal defence lawyers find the courts’ use of reasonable hypotheticals puzzling. Usually in Charter of Rights cases, it’s the context, including the specific factual circumstances, that is vital.

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Mostly, “the courts have been pretty adamant that the alleged unconstitutional effects of a challenged law need to be demonstrated in evidence,” Toronto lawyer Matthew Gourlay said in an e-mail. Still, he believes their use is justified because mandatory minimums tend to raise sentences not just at the bottom end but for more serious offences.

The first mandatory minimum to run up against the “cruel and unusual punishment” clause of the Charter (Section 12) at the Supreme Court of Canada was in a 1987 drugs case known as R v. Smith. The federal government had set a minimum seven-year jail sentence for importing drugs. The offender had imported cocaine. But the court said the penalty wouldn’t fit a hypothetical first-time offender who brought in a single “joint of grass.”

In other words, it was a bad law.

“The basic justification runs like this: the constitutionality of a sentencing scheme cannot depend on who happens to be charged and convicted of a given offence. . . . the scheme is either constitutional for everyone who stands to be punished for violating the offence in question, or it is not constitutional at all,” University of Saskatchewan law professor Michael Plaxton explained in an e-mail.

Not everyone accepts the concept. “In the worst case, you could hypothesize some ridiculous character for whom this would be a bad penalty,” Grant Huscroft, now an Ontario appeal court judge, said on TVOntario’s The Agenda, before the Conservatives appointed him a judge three years ago.

Mr. Harper’s government established or increased minimums for 60 offences, largely those dealing with guns or drugs or sex crimes against children.

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Its position: Judges couldn’t be trusted to hold offenders accountable. Their discretion had to be limited. Parliament’s role is to set sentencing parameters, and preserve public confidence.

What happened with the mandatory minimums was a kind of sequel to a judicial rebellion over a victim surcharge. When the Conservatives made a financial penalty for offenders mandatory in 2013, lower-court judges openly sidestepped the penalty when impoverished offenders were before them – giving as much as 99 years to pay, or setting the penalty at $1.50.

With the mandatory minimums, the Supreme Court set the tone. In 2015 and again in 2016, the top court struck down mandatory minimums in illegal-gun-possession and drug-trafficking cases, using reasonable hypotheticals.

“The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable,” the chief justice Beverley McLachlin wrote for a majority in R v. Lloyd in 2016. “This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional.”

A court must be careful not to impose a middle-class, Romeo and Juliet type, expectation on what a relationship of genuine affection is for teenagers, especially street kids.

— Justice Joanne Veit

The result: Lower-court judges have cover to strike down the minimums and regain their discretion. But the Crown is fighting back. It is trying to argue that hypotheticals such as the one used by Justice Veit are undermining what Parliament tried to do in protecting children. In its court filing at the Alberta Court of Appeal, it said Justice Veit had blamed the victim by attributing to her a “de facto consent” not recognized in the law.

In sexual interference – sexual contact between an adult and a person under 16, the age of consent – there is no such thing as a “low culpability or small offenders,” the Alberta Crown argued.

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It demanded 3½ years in a federal penitentiary for Mr. Ford, plus an additional six months for a breach of a court order to keep the peace.

Among the other examples:

  • In a Northwest Territories case last month, a 33-year-old man faced a five-year minimum for recklessly shooting a prohibited firearm in a public place. He had tried to kill himself, but after a friend pushed the gun from his face, he went out into the street and fired a shot into the snow. The judge said that the five-year penalty would be grossly disproportionate not for him, but for a hypothetical young Indigenous man with no criminal record who had failed to commit suicide in similar circumstances.
  • In another Alberta case, this one from November, a 35-year-old man was convicted of sexual exploitation for having had sexual relations with a 16-year-old relative over a three-month period. The Court of Queen’s Bench judge said the one-year minimum was grossly disproportionate in the case of a “hypothetical babysitter or teacher whose only sexual contact with a young person is limited to a single instance of inappropriate touching.”

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