The Perfect Storm: Section 12, Mandatory Minimum Sentences and the Problem of the Unusual Case

SKU: 61849.04b

This paper examines section 12 of the Charter and its three conflicting elements: first, the long-standing judicial approach requires courts to assess both the actual impact of a sentence on a person before the court, and the potential for that same sentence to impose cruel and unusual punishment on an offender; second, the Conservative government’s policies have enacted minimum mandatory sentences for a wide variety of offenses; and third, a recent decision of the Supreme Court extinguishing the possibility of using the controversial constitutional exemption remedy as a “safety valve” for legislation of this type. The author outlines the nature of the conflict that has emerged and provides analysis of the various approaches that are developing, before concluding with suggestions for mediation for defence counsel.

This paper was presented at the Constitutional Law Symposium in September 2012.

 

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