Proportionality as a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties.

• Author: Witten, Lauren
• Position: Canada

THIS ARTICLE RECONCEIVES PROPORTIONALITY in sentencing as a constructive reasoning process rather than as an instrumental means of achieving a fair quantum of punishment. It argues that the Supreme Court of Canada has wrongly adopted the latter view by determining the constitutionality of mandatory minimum sentences according to hypothetical outcomes. R v Nur is a paradigmatic example of how this error presumes a false objectivity in proportionality assessments that leaves the Court vulnerable to critiques of judicial activism. This paper claims that a process-based conception of proportionality offers a stronger defence of judicial discretion in sentencing than the current framework offers; it better respects institutional roles and provides a more principled basis for declaring the current structure of mandatory minimum penalties unconstitutional. The proportionality as a process theory contends that judges alone are capable of reconciling the values of three constituencies in sentencing--the offender, the judge, and the public--and that this tripartite justification is integral to moral punishment. This paper shows how the process view of proportionality in sentencing is an implicit, but under-theorized, current in the law that should be explicitly developed as part of Canadian constitutional theory.

DANS CET ARTICLE, ON repense la proportionnalite dans le cadre de la determination de la peine en tant que processus de raisonnement constructif plutot que comme methode permettant d'adjuger la sanction appropriee et equitable. L'auteure soutient que la Cour supreme du Canada a erronement adopte cette derniere en decidant de la constitutionnalite des peines minimales obligatoires en fonction de denouements hypothetiques. L'arret R c Nur est un exemple paradigmatique de la maniere dont cette erreur se fonde sur une objectivite fallacieuse, dans le cadre d'evaluations de la proportionnalite, qui rend la Cour vulnerable aux critiques d'activisme judiciaire. Dans cet article, on estime qu'une conception de la proportionnalite fondee sur un processus de raisonnement etaye davantage le bien-fonde de la discretion judiciaire dans la determination de la peine par rapport au cadre actuellement en vigueur. Cette conception respecte en effet mieux les roles institutionnels et fournit des assises davantage fondees sur des principes en vue de declarer inconstitutionnelle la structure actuelle des peines minimales obligatoires. Selon la theorie du processus de la proportionnalite, seuls les juges sont en mesure de concilier les valeurs des trois entites impliquees dans la determination de la peine, soit le delinquant, le juge et le public, et cette justification tripartite fait partie integrante de la sanction morale. On montre, dans ce texte, a quel point le processus de proportionnalite dans le cadre de la determination de la peine represente un courant implicite en droit, quoique sous-theorise, qu'il faudrait explicitement developper a titre de partie integrante de la theorie constitutionnelle canadienne.

CONTENTS Proportionality as a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties Lauren Witten I. Introduction 85 II. Nur and the Problem of Proportionality 87 A. The Disagreement in Nur 87 B. Proportionality in Canadian Sentencing 90 III. The Debate over Mandatory Minimum Penalties 94 A. The Ideological Debate: Are Mandatory Minimum Penalties Justified? 94 B. The Institutional Debate: Mandatory Minimum Penalties in Dialogue 103 IV. The Double-Edged Sword of Discretion 108 A. The Problem with Discretion 108 B. Circumvention and Unaccountability: The Secret Realm of Crown Discretion 110 C. Discretion, Plea Negotiations, and the Prospect of Wrongful Convictions 114 V. Reconceiving Proportionality as a Moral Process 120 A. Tripartite Justification: A Defense of the Moral Status of Judicial Discretion 120 B. Three Frameworks for Institutional Engagement 129 VI. Conclusion 133 I. INTRODUCTION

Mandatory minimum penalties are a battleground. While politicians treat them as indispensable policy tools, academics consider them cynical ploys for political power. The Supreme Court of Canada's decision in R v Nur (1) is a quintessential example of how law goes wrong when it gets mired in this crossfire and loses sight of the more fundamental issue of what makes punishment moral. In Nur, a majority of the Supreme Court struck down mandatory minimum penalties for offences criminalizing the possession of certain firearms, reasoning that the laws could cause cruel and unusual punishment for hypothetical offenders if prosecutors made unprincipled charging decisions. The dissenting justices accused the majority of conjuring bad facts to invalidate good law. This paper argues that Nur was wrong to assess the constitutionality of mandatory minimum penalties on the basis of hypothetical consequences. Instead, the Court should have focused on whether the mandatory minimum penalties prevented moral sentences. This question turns on the nature of proportionality.

My thesis is that proportionality in sentencing is not an instrumental means of achieving a fair quantum of punishment, but a constructive process that depends on judicial discretion. Judges alone are capable of reconciling the values of three constituencies in sentencing: the offender, the judge, and the public. The Court's failure to recognize and defend the process of proportionality results in tenuous legal reasoning and an unreflective presumption of judicial discretion in sentencing. The Nur sentences were not problematic because they risked disproportionate outcomes, but because they thwarted the very process that makes punishment moral.

My argument proceeds in four steps. Part I begins with the error in Nur, outlining the decision and situating it within the purposes and principles of Canadian sentencing. I argue that the majority's reasons overlook the degree of judicial choice and the indeterminacy of values in proportionality assessments, which in turn results in an inadequate defence of judicial primacy in sentencing. Part II explains why this false objectivity is problematic in the context of mandatory minimum penalties, where Parliament claims the ability to assess moral blame alongside and over judges. I argue that the Court must provide a stronger defence for its superiority in determining blame when invalidating democratic law, given the ideological justifications for mandatory minimum penalties and the institutional relationship of the Court with Parliament.

Part III considers why prosecutorial discretion was an inadequate safeguard for the mandatory minimum penalties in Nur. It examines distinctions between prosecutorial and judicial roles in the criminal process, and I argue that common objections to prosecutorial decision-making provide an incomplete rationale for the majority justices' assumption of judicial supremacy in Nur. I contend that their reasons imply a normative understanding of judicial discretion that is under-theorized and underdeveloped. Part IV expands on this tacit understanding. I argue that proportionality is not adequately explained as an outcome and is better understood as a moral process whereby discretion is expressed through reasons. Judges alone are normatively required and practically able to reconcile the values of three critical constituencies in sentencing. This tripartite process of justification makes judicial discretion uniquely capable of moral punishment. I argue that proportionality as a process is not only the best answer to the legal, philosophical, and political controversies surrounding the mandatory minimum penalties in Nur, but is also an implicit current in Canadian law as evidenced in recent judicial reasoning. I further trace the implication of my thesis: the current structure of mandatory minimum penalties is incompatible with the process of proportionality. I conclude with three recommendations for reform that would respect this process and reconcile the primacy of judicial discretion with principled Parliamentary engagement.

2. NUR AND THE PROBLEM OF PROPORTIONALITY

   1. The Disagreement in Nur

      Nur addressed whether certain mandatory minimum firearm penalties constituted cruel and unusual punishment contrary to section 12 of the Canadian Charter of Rights and Freedoms. (2) The appellants in Nur were convicted of possessing loaded prohibited firearms in violation of section 95(1) of the Criminal Code of Canada, (3) a hybrid offence that could be prosecuted by summary conviction or indictment. Summary conviction proceedings are less serious in nature than indictable ones; this distinction was reflected in the structure of section 95. When prosecuted by indictment, section 95 carried mandatory minimum penalties of three years' imprisonment for a first offence, and five years' imprisonment for a subsequent offence. Both appellants before the Court had been convicted of indictable offences. Mr. Nur, a nineteen-year-old first offender, had been sentenced to forty months' imprisonment upon pleading guilty to possessing a loaded prohibited firearm that was discovered during a police foot chase. (4) Mr. Charles, who had a lengthy and serious criminal record, had been sentenced to seven years' imprisonment after police discovered a semi-automatic handgun along with readily accessible ammunition in his shared rooming house. (5)

      By the time their matters reached the Supreme Court, both appellants had conceded the fitness of their own sentences. (6) They nevertheless challenged the mandatory minimum penalties on the basis of a "reasonable hypothetical": a device that enables judges to consider whether the law in question might have an adverse impact on third parties even if it has no impact on the accused before the court. As reiterated by Chief Justice McLachlin in Nur, "[t]his is because '[i]t is the nature of the law, not the status of the accused, that is in issue.'" (7) The reasonable...