A salacious headline caught my attention but the substance of the case ended up being much more noteworthy.

In R. v. Koenig the Provincial Court found the mandatory minimum sentence for the offence of child luring unconstitutional resulting in the youthful accused being sentenced to a conditional sentence order rather than a jail sentence. Having argued constitutional challenges to mandatory minimum sentences previously, this case falls in line with so many others in recent years.

This case provides another example of the challenges inherent in mandatory minimum sentences – their inability to adapt to the inevitably varied circumstances of offence and offender that come before the court.

A challenge to a mandatory minimum sentence involves an allegation that the sentence is a breach of s. 12 of the Charter because it imposes a grossly disproportionate sentence. To be “grossly disproportionate” a sentence must be more than merely excessive. The sentence must so excessive as to outrage standards of decency and disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable.

The analysis involves two stages. The first stage is a specific inquiry that focuses on the individual circumstances of the offender to determine whether the sentencing provision leads to a grossly disproportionate punishment for the accused before the court.  At the second stage the court must decide whether the impugned sentencing provision is grossly disproportionate when applied in reasonably foreseeable circumstances.

A mandatory minimum jail sentence violates s. 12 if it “fails” either the particularized inquiry or the hypothetical inquiry.

The reality is that mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the mandatory minimum would require an unconstitutional sentence.

The Supreme Court of Canada has offered potential solutions. Firstly, offences could be altered to narrow their reach, so that they catch only conduct that merits the mandatory minimum sentence. If the scope of offences isn’t reduced then retaining residual judicial discretion to impose a fit sentence in exceptional cases is an alternative. This approach, widely adopted in other countries, provides a way of resolving the tension between Parliament’s right to choose the appropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment.

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