JUSTICE AS JUSTIFIABILITY: MANDATORY MINIMUM SENTENCES, SECTION 12, AND DELIBERATIVE DEMOCRACY.

• Author: Kennedy, Jeffrey

"[W]hether consequences are 'cruel' requires consideration of why they are being imposed." (1) INTRODUCTION

As scholarship, jurisprudence and public experience make clear, mandatory minimum sentences present a host of serious issues for criminal justice in Canada and abroad. Foresight of unjust sentences by police, prosecutors,

or judges can invite circumventions and distort charges. (2) The removal of judicial discretion heightens the discretionary power of prosecutors, whose decisions lack the same openness and accountability of judicial decision making. (3) With prosecutorial discretion to select between charge s that do or do not carry mandatory sentences, plea bargaining is further problematized by an increased imbalance of power and may result in miscarriages of justice by way of false admissions of guilt. (4) Conversely, the inevitability of an overly severe sentence might foster a reluctance to convict and thus inappropriate acquittals. (5) Disparate effects through any of these mechanisms undermine citizens' equal treatment under the law. (6)

More broadly, mandatory minimums can lead to notable increases in incarcerated populations without corresponding increases in resources or support services. (7) With this, the weight of punitive effects are likely to fall heaviest on marginalized groups, including Canada's Indigenous communities. (8) When unfittingly punitive sentences are issued, mandatory minimums can undermine public confidence in the law while creating a crisis of conscience among dispirited judges. (9) All of this comes against a backdrop of empirical evidence demonstrating that mandatory minimum sentences do not make Canada a safer place, despite often being defended on that basis. (10)

At the heart of these issues, however, is an apparent tension between inflexible ex ante sentencing decisions made at the legislative level and those that are later suggested by considerations of individualized justice at the level of sentencing courts. By mandating in advance a minimum sentence for an offence, Parliament inhibits the ability of judges to fashion appropriate sentences in light of individual considerations which only later become apparent--for instance, the gravity and circumstances of the particular offence, or the characteristics and culpability of the offender at hand. Accordingly, mandatory minimums may compel judges to order unjust sentences which themselves do not fit the crime at hand. Offenders might thus, at an individual level, be subjected to indefensible interventions in either kind or quantity.

The Supreme Court of Canada has grappled with this issue primarily through the lens of offenders' right not to be subject to "cruel and unusual treatment or punishment" under section 12 of the Canadian Charter of Rights and Freedoms. (11) Through the progression of jurisprudence, the Court has conceptualized section 12 as protecting against "gross disproportionality" in sentencing, constructing the constitutional issue as, first, a matter of proportionality and, second, one demarcated by a high threshold. (12) Each of these dimensions, along with the Court's approach more generally, have been subject to critique by criminal scholars. The narrow quantitative construction of the issue has been criticized for neglecting relevant qualitative dimensions--for instance, the way in which the sentence may not be rationally connected to a valid objective given the facts of the case--and thus failing to capture the full breadth of the problem. (13) A chorus of scholars have also argued that the high standard adopted by the Court leaves untouched the still-problematic sentences that nonetheless fall below it, and thus fails to reflect the depth of the issue. (14) Overall, critics have also expressed criticism of the Court's approach to conceptualizing the problem, suggesting it has been unreflective and incoherent. (15) All the while, the Court has defended its position out of an ostensibly democratic deference to an elected legislature and a desire to not trivialize the Charter with supposedly lesser issues. (16)

While scholars' critiques are compelling, these critiques proceed without a coherent framework within which scholars can adequately conceptualize the nature of the section 12 problem and, consequently, bolster their calls for reform. Instead, critiques to date have relied, miscellaneously, on intuition, rhetoric, doctrinal consistency, and general appeals for basic fairness. Certainly, these bases are not themselves without force and have been essential in progressing this debate; however, both scholarship and jurisprudence have arguably gone as far as critiques of this sort will take them. Importantly, arguing from these positions, scholarship on mandatory minimums has also lacked the resources to defuse the Court's own defence of deference to Parliament as a result.

In all, then, scholarship would therefore benefit from a framework that, first, provides a clear conceptual articulation of the problem at issue, second, bolsters that problem's importance in relation to the Charter's constitutional status, and third, replies squarely to the Court's concern with deference to Parliament. Importantly, explaining as it does the coercive public intervention of criminal law, such a framework should ultimately be political in character, articulating the issues in public terms and accounting for democratic values. Only then would it respect the recognition that criminal justice theory needs to be grounded in political theory and its concern with public legitimacy. (17) To date, no such framework has been offered in the literature on mandatory minimum sentences.

Although clarity and public grounding are in any case beneficial, the need for a framework of this sort has also been increasingly necessary. The number of mandatory minimum sentencing provisions has increased exponentially from six in the first Criminal Code, to nine in 1987, to forty in 2006, to approximately eighty in 2015. (18) Constitutional challenges before the Supreme Court of Canada have, likewise, been increasingly frequent. Yet, even with an increased willingness to scrutinize provisions on the basis of hypothetical cases that would or would not arise in the future, (19) the scrutiny of present and future provisions continues to be limited substantively to the established contours of the section 12 test. Insofar as the current test fails to effectively articulate and address the problems of mandatory minimums, then, more is needed. (20) Moreover, despite indicating an intention to legislate a means for judges to circumvent mandatory minimums, (21) the current government has, to this point, yet to take legislative action. Even were it to do so, however, the most recent federal election demonstrated the willingness of some politicians to continue to introduce new mandatory minimums and defend them against legal challenges. (22) Easily-reversed political remedies appear, therefore, to be a tenuous resolution in an oscillating and creative political environment.

This article argues that a deliberative democratic framework captures scholars' concerns and provides them with the resources for each of the needs identified above. In contrast with mere majoritarian conceptions of democracy that focus on aggregating public preferences, a deliberative conception gives persuasive public justification a fundamental role in legitimizing public action. A deliberative democracy perspective therefore demonstrates that the problem at issue is one of legitimacy in that mandatory minimums can require the imposition of unjustifiable sentences: a practice which fails to respect the basic democratic requirement that governments provide its citizens with good reasons for the decisions that bind them.

Understood as breaching a fundamental requirement of legitimacy, the problem's constitutional importance is also emphasized and supports calls for a lower threshold. Moreover, conceiving of the problem as one of justifiability supports the notion that the problem addressed by section 12 is broader in scope than currently acknowledged. Demands of justifiability not only include the quantitative concerns of proportionality, but also incorporate a concern with the qualitative dimensions of sentencing decisions--that is, the rational choice between different forms of response given how they serve the sentencing objectives.

Lastly, this article also argues that a deliberative framework defuses the Court's ostensibly democratic defence of section 12 deference. Here, the article draws on deliberative constitutionalism to dissipate the assumed tension between constitutional review and democracy. Such a view of constitutionalism supports the idea that, in light of the demands of deliberative standards of legitimacy, more active constitutional review is both legitimate and indeed democratic insofar as it catalyzes deliberation and the public justification of decisions. Along these lines, the article demonstrates how an expanded section 12 facilitates these ideals by explicitly guaranteeing justifiable sentences and effectively carving out a space for deliberations.

In this latter respect, it demonstrates that while Parliament may have advantages at least in terms of aggregative aims, courts are especially well-placed as for a of public deliberation. In addition to being insulated from a political environment that is hostile to deliberative approaches to criminal justice decision making, they are located institutionally such that they make decisions at a point in the process when relevant facts are actually known. Moreover, courts not only deliberate within a codified framework of public reasons, but their deliberations facilitate inputs from relevant stakeholders at the point of decision. In all, then, the article bolsters calls for a reformulated section 12 right and provides direction on how this can contribute to--rather than detract from--democratic...