The use of imaginary people committing made-up crimes will be at the heart of a Supreme Court ruling this week on the constitutionality of mandatory minimum sentences in certain gun crimes.
Little-known outside the legal world, invented scenarios have helped Canadian courts strike down dozens of mandatory sentences over the past five years – everything from illegal gun possession to drug trafficking outside a school to possession of child pornography.
The idea is that if a sentence would be cruel and unusual punishment for one person, it cannot stand – even if that person lives only a “reasonable hypothetical” existence, as the courts call it.
But now, after a senior Alberta judge urged the Supreme Court to undo 30 years of its own rulings on the subject, the practice of using invented circumstances will be under a microscope on Friday.
The country’s top court is to rule on the sentencing of a Lethbridge, Alta., man, Jesse Hills, who shot bullets from a bolt-action hunting rifle into a house, terrorizing a family. The mandatory minimum sentence for discharging a firearm into an occupied place is four years.
No one, including Mr. Hills’s own defence lawyer, said the minimum was cruel and unusual punishment (defined as grossly disproportionate, or an outrage to Canadians’ sense of decency) for what he had done.
But Mr. Hills’s legal team offered a hypothetical young person who shoots an air rifle or BB gun at a house, a crime covered by the minimum. Firearms experts, testifying about the imaginary scenario, said such weapons would not penetrate walls. Justice Rodney Jerke of the Court of King’s Bench then struck down the minimum and sentenced Mr. Hills to 3½ years in prison.
That process so enraged Justice Thomas Wakeling of the Alberta Court of Appeal that – in a rare burst of judicial outspokenness – he threw down a gauntlet to the Supreme Court of Canada, challenging it to undo decades of rulings on cruel and unusual punishment, starting with a 1987 decision that established the use of make-believe people.
“I suspect that most informed and reasonable Canadians cannot comprehend why the courts do this. I cannot,” he wrote of the hypotheticals. In case that wasn’t clear enough, he added adjectives and phrases like “aghast,” “extremely troubled,” “remarkable to say the least,” and “a sad state of affairs.”
His appeal-court colleague, Justice Brian O’Ferrall, used “air of unreality” and “bizarre.” The court ruled 3-0 that the minimum penalty was permissible under the Charter of Rights and Freedoms, and sentenced Mr. Hills to four years. (Justice Wakeling would have given him almost six years.)
In a separate case also before the court, a five-year minimum for a first offence of robbery with a prohibited weapon is at issue. William Hilbach (accompanied by a 13-year-old accomplice) robbed an Edmonton store using a sawed-off rifle. A majority of the Alberta Court of Appeal struck down the minimum sentence, partly on the basis of three hypothetical scenarios. Justice Wakeling dissented.
Mandatory minimum sentences have been controversial. The Liberal government has repealed about 20 mandatory penalties, including for drug trafficking and some gun offences. But dozens of minimums remain, and depending on Friday’s ruling, a new government could still reintroduce some minimums.
So many mandatory minimums have been struck down in various jurisdictions across the country that Canada now has a patchwork of sentencing provisions. (Rulings in one province do not apply in another, and sometimes judges within a province do not agree on what is constitutionally permitted and what isn’t.) Justice Wakeling wrote that his own research disclosed that mandatory penalties had been struck down in 147 cases. The federal Department of Justice says it has been tracking 217 constitutional challenges to minimums.
Friday’s ruling will be closely watched. The attorneys-general of three provinces and the federal prosecutions department intervened in the case to defend mandatory minimums. Four civil liberties and lawyer groups intervened to oppose them.
The Criminal Lawyers’ Association urged the court to preserve reasonable hypotheticals, saying in a filing they have “proven to be an effective and indispensable tool for the thousands of defence lawyers seeking just sentences for their clients across the country.”
But the Ontario Attorney-General called on the court to discard the term “hypothetical” altogether.
Complicating the issue is that mandatory minimums have helped raise the proportion of Indigenous inmates in federal and provincial custody. The Canadian Bar Association, in its written argument to the court, said that using reasonably foreseeable characteristics of offenders “promotes access to justice and substantive equality in sentencing.”
The use of reasonable hypotheticals stems from a 1987 ruling of the Supreme Court. The case involved a man importing a large quantity of cocaine. The mandatory minimum was seven years. The Supreme Court struck it down on the basis that it might one day affect a youth returning to Canada with a marijuana joint.
“The Court based its decision on a make-believe problem that would never happen in real life,” Justice Wakeling, an appointee of Conservative prime minister Stephen Harper, wrote of that 1987 decision. He said no reasonable prosecutor would have laid a charge against a young person in the circumstances mentioned by the Supreme Court. The Supreme Court declined, however, to rely on the reasonableness of prosecutors.
In his scathing judgment in the Hills case, Justice Wakeling said the 1987 decision introduced five concepts that “plague” the justice system. The first is the concept of a jail sentence being cruel and unusual. Only barbaric practices like burning a prisoner alive should be considered cruel and unusual, he said.