Sunday, December 30, 2012
Kent Roach (University of Toronto - Faculty of Law) has posted The Charter versus the Government's Crime Agenda (Supreme Court Law Review, Vol. 58, pp. 211-243, 2012) on SSRN. Here is the abstract:
The Safe Streets and Communities Act S.C. 2012 c. 1 (also known as Bill C-10) , like many other parts of the Canadian government’s crime agenda, relies on both prosecutorial discretion and a general judicial reluctance to strike down mandatory sentences. Successful Charter challenges to mandatory sentences are not impossible as seen by Justice Molloy’s recent decision in Smickle, but they will be difficult. In particular the use of reasonable hypotheticals in s.12 analysis may be precluded by reliance on the assumption that longer mandatory sentences will not be applied when the Crown has the power to avoid such sentences by electing to prosecute the relevant crime by way of summary conviction. Courts will then be reluctant to review directly such exercises of prosecutorial discretion. The Supreme Court will ultimately have to decide whether it wishes to maintain the level of judicial deference towards mandatory sentences that it has demonstrated in the past. The articles argues that a more traditional approach to proportionality that focus on the relationship between particular crimes and punishment is more promising than newer approaches based on arbitrariness in relation to legislative purposes or gross disproportionality in the costs and benefits of legislative interventions as conduct in the Insite case and Bedford. At the same time, the article suggests that a contextual approach to proportionality between crimes and punishment that factors in offender characteristics should be taken s in Smith and Ipeelee and not the more abstract approach taken in Morrisey. Should mandatory sentences be found to violate either ss.7 or 12 of the Charter, they will be difficult to justify under s.1 and that such policy analysis about the necessity and effects of mandatory sentences is best conducted under s.1 rather than within ss.7 and 12 of the Charter.