Minimum Agreement

In R. v. Nur, 2015 SCC 15, Supreme Court declared unconstitutional the mandatory minimum sentence Parliament had imposed for the crime of possessing a restricted or a prohibited firearm, either loaded or with ammunition nearby, without the appropriate license. Justices Rothstein, Moldaver, and Wagner dissented, arguing that the majority’s approach to assessing the constitutionality of mandatory minimum sentences for “hybrid” offences ― which can be prosecuted either by indictment or by a summary procedure, in which case a much lighter sentence would be imposed ― was not sufficiently respectful of Parliament.

Some commentators read this dissent as a sign of the existence of a great divide on the Court regarding the respective roles of the judiciary and Parliament, or perhaps of a narrower but still significant philosophical disagreement in the realm of criminal law. For my part, I did not share this view. I argued here that the disagreement between the majority and the dissent in Nur was much narrower than these commentators suggested. The two opinions agreed, among other things, that the imposition of mandatory minimum sentences could produce grave injustices and that such results had to be avoided, even though they disagreed about the most appropriate way of doing so. I believe that a passage from today’s unanimous decision in R. v. Tatton, 2015 SCC 33, are further evidence that all of the Supreme Court’s members are wary of mandatory minimum sentences (which, of course, is not to say that they think them necessarily unconstitutional).

Tatton itself is a “pure” criminal law decision, not a constitutional one. The narrow question it answers is “whether self-induced intoxication is a defence to a charge of arson under s. 434 of the Criminal Code.” [1]  More broadly, the unanimous opinion by Justice Moldaver, the author of the Nur dissent, addresses the issue of the sorts of offences to which intoxication can serve as a possible defence. This, Justice Moldaver explains, mostly has to do with the sort of cognitive activity involved in the commission of the offence. (In a nutshell ― I’m not going to go over the complexities of an issue which, by Justice Moldaver’s own admission, “continues to perplex and confound” [33] ― the more thinking, planning, or knowledge committing an offence requires, the more likely it is that intoxication will be a possible defence.) But some “policy” and justice considerations also play a role.

One such consideration, albeit not the most important one, is “the presence of judicial sentencing discretion.” Justice Moldaver explains that

[i]f the crime is one for which the accused will receive a heavy minimum sentence upon conviction, it may be unduly harsh to preclude consideration of intoxication. However, if the judge has discretion to tailor the sentence to the facts of the case and to consider the accused’s intoxication as part of that assessment, precluding the accused from advancing a defence of intoxication is less worrisome.

To me at least, this seems to suggest that Justice Moldaver, as well as Justices Rothstein and Wagner, his fellow dissenters in Nur, no less than his colleagues who were in the majority in that case, is concerned about the injustices that can result from the application of the mandatory minimum sentences, which deprive judges of the ability to fit the punishment to all the circumstances of the accused and the offence. Indeed, consider what Tatton might mean for some cases where a court might be inclined to impose a moderate punishment on the accused by preventing him from introducing intoxication as a defence but accounting for it at as mitigating his moral blameworthiness at the sentencing stage, but is prevented from doing so by a mandatory minimum sentence. In such cases, Justice Moldaver suggests, the court should rather give the accused a chance to escape punishment altogether by introduce intoxication as a defence than impose the heavy mandatory minimum sentence.

Once again, we cannot draw from this any conclusions about the Supreme Court judges’ views on the constitutionality of mandatory minimum sentences in general. Cases where constitutional questions will be asked will tell more about that. Yet it is quite clear, it seems to me, that all the judges, including those whom some like to describe as more deferential to Parliament, are in agreement that such sentences can have worrisome effects ― and that strong remedies are sometimes necessary to avoid them. Whatever the ultimate answer to the constitutional question, this is something we should take into account when thinking about such sentences as a matter of policy.

2 thoughts on “Minimum Agreement

  1. Pingback: Help Us. Or Maybe Don’t? | Double Aspect

  2. Pingback: Judges, Lawyers, and Science | Double Aspect

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