R v Nur: The Battle of Two Approaches to Challenging a Mandatory Minimum Sentence Under s. 52 of the Constitution Act, 1982
At the heart of the debate surrounding mandatory minimum sentences in Canada lies the insular but simple fact that Parliament, rather than the judiciary, dictates the application of such sentences to ensure that all offenders convicted of a specific crime receive at least a minimum term of imprisonment, regardless of the circumstances which surround the offence and the offender.
However, on April 14, 2015, the Supreme Court of Canada (“SCC”) came one step closer to regaining its control over sentencing with the release of its split decision in R v Nur, 2015 SCC 15 [Nur], on whether or not the mandatory minimum sentences of three and five years for possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, RSC 1985, c C-46, contravened the right not to be subjected to any “cruel and unusual punishment” under s. 12 Canadian Charter of Rights and Freedoms.
Writing for the majority, McLachlin CJ concluded that “[t]he mandatory minimums imposed by s. 95(2)(a)[, being a term of three years for first time offenders, and five years before repeat offenders,] are inconsistent with s. 12 of the Charter and are therefore declared of no force or effect under s. 52 of the Constitution Act, 1982.” However, taking a different position, Moldaver J (dissenting) argued that the constitutional validity of s. 95(2) should be upheld.
What is most interesting about the SCC judgment in this case is not the decision regarding whether or not s. 95(1) of the Criminal Code contravenes s. 12 of the Charter, but rather the decision as to what approach should be taken when dealing with a hybrid offence that carries a mandatory minimum sentence: the reasonable hypothetical approach or Moldaver J’s new approach for hybrid offences.
The Current Test for Infringement of Section 12 of the Charter
As first outlined in R v Smith (Edward Dewey),  1 SCR 1045 [Smith], a challenge to the constitutionality of a mandatory minimum sentences requires two steps: first, the court must determine what constitutes a proportionate sentence for the offence; and second, the court must ask whether the mandatory minimum sentence demands that a judge impose a sentence that is grossly disproportionate.
The SCC has set a high bar for what constitutes “cruel and unusual punishment”: the threshold is not simply whether a sentence is disproportionate or excessive, but rather that it is grossly disproportionate and, therefore, “so excessive as to outrage standard of decency” and are “abhorrent and intolerable” to society (Smith, 1072 and R v Morrisey,  2 SCR 90, para 26).
In most cases, including those of Hussein Jama Nur and Sidney Charles, the imposition of the mandatory minimum sentences outlined in s. 95(2) of the Criminal Code will not constitute “cruel and unusual punishment.” However, according to McLachlin CJ, in order to overcome this issue, the question is not whether the mandatory minimum sentence violates the applicant’s s. 12 right, but rather “whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples’ situations, resulting in a violation of s. 12” (Nur, para 57).
The rationale for this position is as follows: in cases of mandatory minimum sentences, “[i]t is the nature of the law, not the status of the accused, that is in issue” (R v Big M Drug Mart Ltd,  1 SCR 295, para 314). Therefore, it is appropriate to consider how the law may also impact third parties by crafting a reasonable hypothetical. (For the reasonable hypothetical outlined by Doherty J at the Ontario Court of Appeal, please see R v Nur, 2013 ONCA 677, para 150 [Nur, ONCA]).
Moldaver J’s New Scheme for Hybrid Offences
Taking a different position than the majority, Moldaver J proposed a new analytical framework for evaluating exclusively the constitutionality of hybrid offences that carry mandatory minimum sentences if the Crown proceeds by indictment (Nur, para 157). Moldaver J’s reasoning behind his proposed scheme was that the court should be focusing on the constitutionality of the state action in electing to proceeds by indictment rather than summarily, not the law itself.
As such, the court must determine first, whether the scheme adequately protects against grossly disproportionate sentences in general, and second, whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for the particular offender before the court (para 157). (For a more in-depth explanation of Moldaver J’s proposed approach, please see paras 158-172.)
Although I do appreciate the new scheme for hybrid offences created by Moldaver J, I strongly believe that the reasonable hypothetical approach is more appropriate when dealing with mandatory minimum sentences for three reasons.
First, it is necessary that the approach employed in determining the constitutionality of a mandatory minimum sentence focus on the grossly disproportionate effect of the law itself, not the effect of state action. As stated by McLachlin CJ, “[m]andatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing [since t]hey emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime” (Nur, para 44). As such, it is not the election of the Crown that creates a grossly disproportionate sentence; rather, it is the mandatory minimum sentence itself.
The primary rationale for this is that they function as a “blunt instrument” that restricts the ability of a sentencing judge to craft proportionate sentences and replace the consideration of the individual in the sentencing equation with one factor – for example, did the offender possess a prohibited or restricted firearm with ammunition – that is a poor substitute for blameworthiness.
Second, by considering the reasonably foreseeable reach of the mandatory minimum sentence, the reasonable hypothetical approach “will prevent people from suffering cruel and unusual punishment in the interim until the mandatory minimum is found to be unconstitutional in a particular case” (para 63). Moldaver J’s scheme, however, looks at the impact of the mandatory minimum sentence on each individual offender. As a result, people must first be exposed to a cruel and unusual punishment in order to for the court to be able to consider whether the scheme adequately protects against grossly disproportionate sentences in general, and whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for the particular offender.
Third, Moldaver J’s scheme places too much trust in the election right of the Crown for hybrid offences. As noted by the majority in Nur, the Crown’s election occurs at an early stage in the prosecution. As a result, the election is based on only the information that was available to the Crown at the time of the election. According to Doherty J,
[i]f the accused pleads not guilty and is convicted, he or she will be sentenced based on findings of fact made by the trial judge on sentencing. If the Crown chose to proceed by indictment, the constitutionality of the [mandatory minimum sentence] will be tested in the context of the facts as found for the purpose of sentencing and not the facts as understood by the Crown when the election was made. (Nur, ONCA, para 157)
It follows that there will be cases in which the Crown elects to proceed by way of indictment, but may have proceeded summarily had the election been based on the facts as found at the time of sentencing rather than at trial. As a result, as Lamer J stated in Smith, the court cannot “delegate the avoidance of a [Charter] violation to the prosecution or to anyone else for that matter” (Smith, para 69).
Additionally, the Criminal Code is entirely silent on the Crown’s right to elect to proceed by way of indictment or summary conviction for hybrid offences and, as such, there exists no guidance as to how a Crown should weigh evidence in order to arrive at an appropriate conclusion. Such a lack of statutory or common law guidance may inadvertently cause scenarios where the Crown has unreasonably elected to proceed by way of indictment, despite the fact that there existed just and reasonable grounds for proceedings summarily.
Although this concern may be present in all cases involving a hybrid offence, the adverse repercussions of such an election on an accused are augmented when the election to proceed by indictment automatically imposes a mandatory minimum sentence. Echoing such an opinion, Molloy J, in R v Smickle, 2012 ONSC 602 [Smickle], concluded that “the structure of the hybrid scheme for prosecution of [mandatory minimum sentences] is irrational and arbitrary…” (Smickle, para 9).
According to the Supreme Court of Canada in R v Ferguson,  1 SCR 96 [Ferguson], Parliament’s intention “in passing mandatory minimum sentence laws…[was] to remove judicial discretion[,]…” (Ferguson, para 54) that could result in inconsistent or disproportionate sentencing practices. However, the impotency of judges to configure a sentence that is unique to each offender, coupled with the Criminal Code’s silence on the election process of a Crown, open up a greater potential for failure of mandatory minimum sentences to be consistently proportionate to an offence.