Child porn ruling not the first time fictional scenarios used to gut sentences

The Supreme Court of Canada’s recent ruling highlights its use of “reasonable hypotheticals,” or made-up scenarios, in deciding if Parliament can impose mandatory minimum sentences for serious crimes.

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The Supreme Court of Canada’s recent ruling highlights its use of “reasonable hypotheticals,” or made-up scenarios, in deciding if Parliament can impose mandatory minimum sentences for serious crimes.

In a divided 5-4 ruling, the court struck down a one-year mandatory minimum sentence for child pornography offences, reasoning the law could impose grossly disproportionate punishment in a hypothetical but “reasonably foreseeable” scenario.

The widely criticized decision continues a decades-long line of rulings in which the court has tested laws not only against the facts before it, but also against imagined situations meant to guard against “future injustice.”

The use of “reasonable hypotheticals” in Canadian constitutional law dates back to 1987.

In R. v. Smith, the Supreme Court struck down a mandatory minimum sentence for importing narcotics after finding it would be grossly disproportionate if applied to a hypothetical offender in a reasonably foreseeable situation.

In that case, the accused was convicted of importing 7 1/2 ounces of cocaine, worth up to $168,000, not adjusted for inflation. The mandatory minimum sentence was seven years in prison.

When assessing whether the sentence was grossly disproportionate or unconstitutional, however, the court held that it was the law itself, not the offender’s personal circumstances, that was on trial.

The rationale for this position is spelled out in R v Big M Drug Mart Ltd: in cases of mandatory minimum sentences, “it is the nature of the law, not the status of the accused, that is in issue.”

To illustrate the potential for injustice, the court imagined a hypothetical offender: a young person caught with a single marijuana joint while crossing the border.

The Crown argued such a scenario would never occur, since no reasonable prosecutor would lay such a charge. But that argument did not persuade the court.

Its reasoning was straightforward: the justice system cannot depend on blind faith that all Crown prosecutors will exercise their discretion infallibly.

“Courts cannot assume that reasonable and trustworthy prosecutors would never proceed with this charge in the hypothetical circumstances,” one Alberta appellate judge later wrote, explaining the court’s rationale.

“Unfortunately, it would seem that whenever the Crown is granted statutory power that can be used abusively, then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control. Rather, the offending statutory provision should be removed,” the reasoning continues.

The doctrine resurfaced decades later in R. v. Hills, another challenge under Section 12 of the Charter, this time involving a four-year mandatory minimum for discharging a firearm at a house.

In that case, the majority relied on a hypothetical scenario involving a young person firing a BB gun at a residence to demonstrate the sentence’s potential gross disproportionality in low-harm situations.

The real-life facts were far grimmer. On May 6, 2014, Jesse Dallas Hills of Lethbridge, Alta., left his home intoxicated and armed with a baseball bat and a loaded hunting rifle.

He swung at a passing car and fired a shot at it, then smashed the windows of a parked vehicle and fired into a nearby house. The bullet passed through the home’s living room window and wall into another room where a family of four was inside. Thankfully, no one was injured.

Hills pleaded guilty to several offences, including intentionally discharging a firearm into or at a house, an offence that carried a four-year mandatory minimum. He challenged that minimum under Section 12 of the Charter of Rights and Freedoms, arguing it amounted to “cruel and unusual punishment.”

His argument turned on a “reasonable hypothetical” scenario: that the same law could apply to someone who fired a low-powered air gun or paintball marker at a home, even though such a weapon could not penetrate a wall.

A sentencing judge agreed, finding the minimum grossly disproportionate and imposing a 3 1/2-year sentence instead. Alberta’s Court of Appeal later overturned that ruling and restored the four-year term.

Hills then appealed to the Supreme Court of Canada.

In a 5-4 decision, the Supreme Court sided with Hills, declaring the mandatory minimum unconstitutional. Writing for the majority, Justice Sheilah Martin said it would “shock the conscience of Canadians” to imprison someone for four years for firing a paintball gun at a house.

The decision reaffirmed the Supreme Court’s power to test mandatory minimums through reasonable hypothetical scenarios, a practice that continues to divide judges, academics and politicians alike.