‘Reasonable hypotheticals’ here to stay, SCC rules in revised framework for Charter review of MMPS – The Lawyer’s Daily

Emily MacKinnon

Jan 27, 2023

A majority of the Supreme Court of Canada has ruled unconstitutional the Criminal Code’s recently repealed four-year mandatory minimum penalty for discharging an air-powered pistol or rifle at a house. In an interview with The Lawyer’s Daily, Emily MacKinnon noted the court expressly rejected calls from two members of the Alberta Court of Appeal for the Supreme Court to abandon its use of “reasonable hypothetical” in assessing constitutional challenges to mandatory minimum penalties.

“The court agreed with the British Columbia Civil Liberties Association (BCCLA) that reasonable hypotheticals are a crucial part of an analysis under s. 12 of the Charter,” says Emily. “The court also agreed with the BCCLA that the circumstance of Indigenous offenders must be taken into account when considering the constitutionality of a sentence.”

Emily also highlighted Justice Martin’s “important comments underscoring the severity of imprisonment, accepting the finding from the BCCLA’s report on mandatory minimum sentencing that incarceration has a serious ‘ripple effect’ on every aspect of the offender’s life and community. These comments will guide judges in the future, encouraging them to give mandatory minimum sentences a long hard look before allowing them to pass constitutional muster.”

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