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

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.

II. NUR AND THE PROBLEM OF PROPORTIONALITY

A. 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 hypothetical device was developed by the Supreme Court in R v Smith (8) out of concern about the difficulties of mounting constitutional challenges on the basis of section 12 of the Charter. Section 12 prohibits cruel and unusual punishment, (9) meaning punishment that is not "merely excessive," (10) but grossly disproportionate in view of the nature of the offence and the circumstances of the offender. Such punishment must outrage standards of public decency and be abhorrent or intolerable to Canadians. (11) Given this stringent standard, the Court feared that unconstitutional laws might remain perpetually on the books if judges had to await ideal factual challenges to invalidate a law. (12) One solution was to entertain reasonable hypothetical scenarios. This allowed judges to examine the logical reach of the law by considering theoretical consequences. Judges no longer needed to wait for a perfect claimant; instead, they could create one. The "reasonable hypothetical," in Chief Justice McLachlin's conception, is thus an assessment of logical consequences; it is not an exercise in imaginative manipulation, but neither is it one of practical likelihood. If the imagined conduct logically conforms to the law's ambit, it is "reasonably foreseeable." (13)

This ability to consider the potential breadth of a mandatory minimum assuaged concerns about the persistence of unjust laws, but it has been controversial since many provisions could be invalidated on the basis of a sufficiently imaginative scenario. Conscious of this risk, the Court limited hypotheticals to scenarios that were grounded in judicial experience and common sense, and excluded remote or far-fetched circumstances. (14) Nur demonstrates, however, that the distinction between reasonable and remote is far from self-explanatory.

The Nur hypothetical rested on a fictional improper exercise of prosecutorial discretion. Chief Justice McLachlin, writing for the majority, imagined that a person with a valid firearms license for one residence was prosecuted for inadvertently storing the weapon in a different residence. The fictional prosecutor chose to proceed by indictment, thereby subjecting the hypothetical offender to a mandatory minimum penalty of three years' imprisonment. (15) The Chief Justice accepted that section 95 "would reasonably be expected to capture [this] conduct": (16)
The bottom line is that s. 95(1) foreseeably catches licensing offences
which involve little or no moral fault and little or no danger to the
public. For these offences three years' imprisonment is grossly
disproportionate to a fit and fair sentence. Firearms are inherently
dangerous and the state is entitled to use sanctions to signal its
disapproval of careless practices and to discourage gun owners from
making mistakes, to be sure. But a three-year term of imprisonment for
a person who has essentially committed a licensing infraction is
totally out of sync with the norms of criminal sentencing set out in
the s. 718 of the Criminal Code and legitimate expectations in a free
and democratic society. (17)


In response, the government had argued that the majority's hypothetical ignored the legislative context of the offence--in particular, the hybrid character of the Criminal Code provision. The government contended that it was improper to conceptualize the penalty as "grossly disproportionate" in abstraction from the exercise of Crown discretion to proceed summarily and avoid mandatory minimum penalties when the offender's conduct fell at the less serious end of the spectrum. (18) The dissenting judges agreed. Justice Moldaver argued that it was wrong to determine the constitutionality of a hybrid offence on the basis of an imagined abuse of prosecutorial discretion since Crown election was "purposively integrated into the legislative scheme," (19) in order to avoid disproportionate sentences. (20) In Justice Moldaver's view, "[b]y creating a 'safety valve' to shield licensing-type cases from the reach of the mandatory minimum, Parliament ha[d] effectively conceded the existence of reasonably foreseeable cases in which a mandatory minimum would be grossly disproportionate." (21) The real issue was the adequacy of the safety valve, and in that regard, he reasoned that a grossly disproportionate sentence that resulted from Crown election could be challenged as a prima facie abuse of discretion. (22) The majority's approach centred on a fear that would never materialize. Their hypothetical was at odds with case law and logic. (23) Put simply, it was unreasonable. Conversely, the majority contended that the dissenting justices' approach departed from the traditional section 12 framework and failed to offer adequate protection against abuse, given the "notoriously high bar" (24) for challenging prosecutorial discretion.

Nur is not about whether Parliament can enact grossly disproportionate sentences: both divisions on the Court agreed that it cannot. They disagreed instead about the nature of the safety valve, and therefore about whether proportionality can be achieved by reallocating discretion within the criminal process. At base, they disagreed about what proportionality in sentencing means.

B. Proportionality in Canadian Sentencing

Proportionality is the overarching principle of Canadian sentencing and supposedly reconciles a multiplicity of values. The fundamental purpose of Canadian sentencing is "to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions." (25) Sanctions have defined objectives: denunciation; specific and general deterrence; separation of offenders from society; rehabilitation; reparations; the promotion of a sense of responsibility in offenders; and acknowledgment of the harm done to victims and to the community. (26) A sentencing judge must also consider any aggravating and mitigating factors, along with principles of parity, totality, and restraint. (27) These varied aims theoretically converge in the fundamental principle of sentencing: proportionality. (28)

The Supreme Court has emphasized the centrality of proportionality to sentencing, calling it "the sine qua non of a just sanction." (29) In R v Nasogaluak, Justice LeBel framed proportionality as a convergence between the censuring and limiting aspects of punishment:
Whatever the rationale for proportionality... the degree of censure
required to express society's condemnation of the offence is always
limited by the principle that an offender's sentence must be equivalent
to his or her moral culpability, and not greater than it. The two
perspectives on proportionality thus converge in a sentence that both
speaks out against the offence and punishes the offender no more than
is necessary. (30)


Proportionality thus has the demanding task of transcending and reconciling three different philosophies of punishment incorporated in Canadian sentencing: consequentialist, retributivist, and communicative theories. (31) I will address each rationale briefly and demonstrate its basis in Canadian law to orient the rest of the discussion about the impact of punitive philosophy for proportionality.

The fundamental purpose of protecting society, as described above, is consequentialist: connecting sanctions to crime control in pursuit of a safer society. This theory justifies punishment by the benefits it achieves. (32) The fundamental principle of Canadian sentencing, by contrast, is retributivist. Retributive theory views punishment as a just and necessary response to wrongdoing, but only to the degree that such penalty is morally deserved. It requires that people be treated as ends in themselves, rather than as means for others' interests. Retribution therefore insists on a just equivalency between punishment and guilt, emphasizing the moral agency and responsibility of offenders. (33)

The law also incorporates a more ambitious communicative philosophy of punishment. In Nasogaluak, Justice LeBel affirmed that sentencing speaks and instills "society's legitimate shared values and concerns." (34) This assumes that punishment resonates beyond the courtroom to the public. Anthony Duff, the leading proponent of this theory, describes the communicative aim as pursuing individual penance within a moral community:
Punishment aims to persuade offenders to face up to what they have
done--to the substantive moral character and implications of their
crimes as public wrongs.... If the punishment is to "fit the crime" on
this account, it must be apt, not only to communicate a proportionate
degree of censure, but to serve these richer, more ambitious
communicative goals. (35)


Consequential, retributive, and communicative models are thus all engaged in Canadian sentencing.

Irrespective of the theory, the jurisprudence has shifted from assessing the gravity of an offence in terms of its elements (36) to a more holistic evaluation. Courts have recognized that criminal responsibility is not wholly captured by the actus reus and mens rea, and can encompass more nuanced consideration of individual fault. (37) This includes aggravating and mitigating factors in statute (38) and common law, and a deeper consideration of systemic factors that fuel offending. For example, a failure to consider the individual background of Aboriginal offenders violates the principle that sentences be proportionate. (39) Even more optimistically, sentencing should seek to ameliorate the overrepresentation of minorities in prison. (40) The picture is lofty, multifaceted, and aspirational. It also poses problems on the ground.

The multiplicity of theories in Canadian law poses a dilemma: sentencing must be consistent but is simultaneously "an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case." (41) Proportionality is meant to provide a principled answer to this problem by structuring the pursuit of each sentencing objective under every justification theory. (42) It acts as a circumscribing principle that ensures punishments will be no less and no more than justice demands, providing a moral check on sentencing's consequentialist purpose. (43) As former Supreme Court Justice Morris Fish describes, proportionality thus reflects a "synthesis of retributivist principles and utilitarian goals." (44) But for all its moral appeal, proportionality has illusory force as an argument against mandatory minimum penalties when it is conceived in terms of justifiable results.

Different philosophies of punishment weigh values differently. Yet, outcome-based understandings of proportionality, which treat the concept as an instrumental means of achieving a fair quantum of punishment, claim that proportionality "transforms questions that in moral philosophy are questions of value into questions of fact." (45) This assumes a false objectivity. (46) The multifaceted approach to Canadian sentencing gives judges virtually unfettered choice of how to characterize the crime and the offender, as well as of objectives to select in crafting a sentence. (47) This is significant since judicial approaches to decision-making may determine outcomes more than facts. (48) As Andrew Ashworth convincingly argues, judicial demographics--as well as views on principles of sentencing, crime and punishment, the nature and limits of discretion, institutional roles, and facts--are significant determinants of sentencing decisions. (49) Proportionality can thus be a rhetorical cover for personal preference, making the objective discourse misleading.

A more nuanced grasp of proportionality is required to understand its importance for mandatory minimum penalties. First, for proportionality to be an intelligible standard, we need to know what we are comparing. This involves difficult questions of how to measure and weigh moral guilt against various sentencing objectives. Second, for proportionality to be a workable standard, we need to determine who assesses these values. Proportionality does not plainly entail judicial monopoly in sentencing, nor does it necessarily preclude mandatory minimum penalties. These conclusions hinge on what punitive purposes mandatory penalties can legitimately serve. (50) The next section answers this question by considering the ideological and institutional conflicts over mandatory minimums. I argue that hyperbolic critiques of mandatory minimums have fuelled an unhelpful discourse that obscures fundamental questions about the nature of proportionality and institutional roles. This discourse ultimately fosters poor judicial reasoning in Nur. A better approach focuses on the judicial exercise of giving reasons for punishment, which must justify a sentence to three constituencies: the offender, the public, and the judge. It is this process of giving reasons that is constitutive of proportionality and that makes punishment moral.

III. THE DEBATE OVER MANDATORY MINIMUM PENALTIES

A. The Ideological Debate: Are Mandatory Minimum Penalties Justified?

Mandatory minimums are "a forceful expression of governmental policy in the area of criminal law" (51) and an exceptional incursion into the ordinary course of sentencing. Sentencing normally falls into a neat institutional divide: Parliament enacts criminal law and sets general, principled parameters for sentencing; judges apply the laws within that framework. Mandatory minimum penalties inhabit an awkward space in this landscape. They are a priori determinations of what punishment is required for the least morally blameworthy offender, independent of individualized judicial assessments. (52) Mandatory minimum penalties thus technically preserve judicial discretion but significantly curtail it by imposing a hard penal floor. Any judicial tailoring must happen above that threshold.

Objections to mandatory minimum penalties go beyond the risk of unduly harsh penalties for individual offenders. The weight of academic research indicates that mandatory minimum sentences have a "negligible" or non-existent (53) effect on crime control. (54) Michael Tonry, a leading opponent of mandatory minimum sentences, cautions that they engender unprincipled plea-bargaining, and "hypocrisy on the part of prosecutors and judges" (55) who seek to avoid the harsh effects of the law. This raises concerns about unaccountability and inconsistency. Yet, despite this pessimistic evaluation, mandatory minimum penalties persist as supposedly important tools in crime control and symbolic expressions of government's commitment to combat grave social ills. (56) The question is why.

The harshest critics characterize mandatory minimum penalties as pure political maneuvering. (57) In this view, statutory penalties are "nothing short of a crass political lie" (58) that attempt "to curry public favor and electoral support by pandering, [and] making promises that the law can at best imperfectly and incompletely deliver." (59) Benjamin Berger, a forceful opponent of mandatory minimum penalties, describes how they exploit public vulnerability for political gain:
[T]he tune of minimum sentencing seems to be a political siren song.
Faced with public fear arising from serious and highly publicized
incidents of violent crime, politicians can find a strong and clear
answer in the introduction of new mandatory minimums. The response of
introducing new and "tough" minimum sentences is easily explained to
and by the media and readily digested by the public. The political
message is neat: the government views these crimes as very serious,
utterly unacceptable and anyone who puts the community at risk in this
way should be removed from society. The mandatory minimum sentence is
perfectly packaged for a public whose attention is focused by current
high-profile crimes, even if crime rates (including violent crimes) are
in fact on the decline. A government can move swiftly, acting
decisively while underscoring a "tough on crime" position. In all of
this there are votes to be won. (60)


This line of argument is powerful but depends on a pessimistic view of government that leaves open complex questions of discretion, morality, and institutional roles posed by mandatory minimum penalties. Before deciding whether the mandatory minimum penalties in Nur can be dismissed as a political scheme, we need to identify which theories of punishment they engage and evaluate their legitimacy on those bases.

The mandatory minimum penalties at issue in Nur had clear policy goals. The enacting legislation emphasized the threat that violence involving firearms poses to society, along with the government's commitment to "combat violent crime and to protect Canadians while respecting and promoting the values reflected in, and the rights and freedoms guaranteed by, the [Charter]." (61) The penalties targeted the most dangerous categories of firearms, and "only applie[d] if the firearm [was] loaded or if ammunition for the firearm [was] readily available." (62) Thus, the penalties pursued public safety through deterrence and denunciation, engaging consequentialist and communicative philosophies of punishment. The reference to Charter values, which centre on individual dignity and worth, simultaneously incorporates the limiting principles of retributive theory. Only if mandatory minimum penalties fail on all three theories can we reasonably conclude that they are purely political. I will consider each in turn.

Deterrence, the consequentialist rationale, is the most maligned justification for mandatory minimum penalties. Its putative logic is stubbornly intuitive. Policy makers imagine that harsh penalties would rationally deter them from acting unlawfully, and legislate accordingly. (63) The problem, as Tonry writes, is that these assumptions are abstracted from the kinds of decisions and socio-economic circumstances that actually fuel crime:
However hard it is for rational folks to conceive of it, there are some
people who simply do not respond to whatever threat is presented to
them.... For people who see no attractive options in the legitimate
economy, and who are doubtful that they will live another ten years in
any event, the threat of an extended prison stay is likely to be far
less threatening than it would be to a well-employed person with a
family. (64)


"Common sense" is dangerously misleading in perceptual assumptions.

Belief in deterrence also persists because academics cannot conclusively demonstrate that harsh sentences do not deter. (65) As Anthony Doob and Cheryl Webster acknowledge in their seminal article advocating the ineffectiveness of mandatory minimum penalties, "[s]trictly speaking, one cannot prove the absence of a phenomenon." (66) Further, the intuitive link between punishment and deterrence is not entirely irrational. Research demonstrates that the certainty of punishment is a deterrent, (67) and the criminal justice system as a whole is an effective form of crime control. (68) The link only breaks when deterrence is associated with a specific quantum of punishment. But even that conclusion is qualified. Doob and Webster, while advocating the "null hypothesis" that mandatory minimum penalties do not deter, couch their finding within "reasonable limits." (69) They deny, for example, that, "a one-dollar fine for armed robbery would be the same as a three-year prison sentence." (70) This concession--that deterrence has an operative threshold--fuels the tenacious logic of mandatory minimums and explains why deterrence remains a legitimate principle of sentencing. (71)

Another explanation for the persistence of deterrence is that it is hard to measure. As Doob and Webster acknowledge, various factors contribute to crime control. (72) Causal complexity justifies some suspicion about empirical findings and leads certain academics to comment that the literature overstates the "null hypothesis." For example, some studies support the effectiveness of deterrence in conditions where potential offenders who are capable of rational decision-making, are cognizant of penalties, and reasonably anticipate being caught. (73) One such study found that robbers tended not to arm themselves with guns when there was a significant extra penalty for carrying a firearm. (74) The implication is that general deterrence might be effective for offences targeting rational decision-making rather than impulsivity. A majority of the Supreme Court recently endorsed this logic by affirming that deterrence was particularly suited to target offenders who might otherwise be law-abiding, since "[i]t is such people, more than chronic offenders, who will be sensitive to harsh sentences." (75) Clearly, this justification for deterrence is important in assessing the legitimacy of legislation that focuses on the deliberate choice to acquire and possess inherently dangerous weapons. This assessment shows that the consequentialist critique of mandatory minimum penalties is not unassailable, but it is sufficiently compelling to demand some further philosophical justification for mandatory minimum penalties. I turn now to consider the communicative rationale.

Communicative theories, as we have seen, expand sentencing's focus beyond the individual to the community. Punishment benefits the offender and the community if it facilitates personal penance and restores the individual to a positive civic relationship. This grand aim requires that sentences express and inculcate community values, and is most directly tied to denunciation, which the Supreme Court has defined as "a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law." (76) Mandatory minimum penalties undoubtedly serve this end, in that they explicitly signal disapproval for an action, and this symbolic function has public value independent from crime control or an accused's individual circumstances. (77) But it has an underside. Tonry asserts that expressive defences of mandatory minimum penalties have "no place in a society that takes human rights seriously": (78)
Enactment of mandatory penalties is sometimes justified in expressive
terms, irrespective of their effects. Their enactment is said to
acknowledge public anxiety and assuage victims' anger. They are a sign
that policy makers are listening, and care, and are prepared to take
action. This assumes, however, that offenders' interests in being
treated justly and fairly do not warrant consideration. People may
sometimes feel that way, but that cannot be a legitimate basis for
making policy in a free society. (79)


Tonry's position only holds if the expressive function of punishment is abstracted from other controlling values. Expression, in the symbolic sense that Tonry invokes, is only one aspect of communicative punishment. Joel Feinberg, a proponent of the expressive character of punishment, argues that, "punishment has a symbolic significance largely missing from other-kinds of penalties." (80) Although the precise purposes may be difficult to trace, Feinberg argues that the expression of public censure is integral to any adequate philosophy of punishment. (81) The aim of personal penance places a limit on what punishment is allowed, but this will turn primarily on the importance afforded to the symbolic goal. The more weight this function and the denunciatory aspect of punishment assume, the less problematic a mandatory minimum penalty becomes.

Retributivist theory poses the strongest principled challenge to mandatory minimum penalties. Such sentences can only be defended if we attach a defined level of moral blame to an act that cannot be diluted by distinct factual circumstances. (82) The penalty is the minimum degree of punishment required to censure any offender, solely in virtue of having committed the act. Two critiques of mandatory minimums are immediately evident from this description. First, if the elements of an offence are not fully dispositive of fault, the penal floor established by mandatory minimum penalties may result in disproportionate punishments for individuals. We could each imagine uniquely sympathetic offenders who committed crimes in circumstances where a particular punishment would seem unjust. The trouble with this criticism is that our imagined scenarios would likely vary, and we would each have different assessments of what factors warrant punishment, how they correspond to moral blame, and what kind and degree of punishment would be just. (83) We cannot escape the biases of our own worldviews. This inevitability, as I discuss in the next section, is borne out by case law and makes the reasonable hypothetical a poor tool for assessing proportionality. The real question in relation to a penal floor is whose judgment should carry the day.

The second retributivist critique is that mandatory minimum penalties cause systemic distortion and disproportionality. Julian Roberts, a strong critic of mandatory minimum penalties, argues that they enforce artificial gradations of blame within a single offence. (84) This violates ordinal proportionality, the principle that the relative severity of punishments should correspond to the relative severity of offences, which depends in part on factual circumstances. This gradation gets lost if sentences for the same crime committed in very different circumstances artificially cluster around a minimum floor. Alternatively, if judges try to respect ordinal proportionality within a higher overall range, mandatory minimum penalties could have an inflationary effect through the system as a whole. (85) Roberts argues that this would fix one form of disproportionality with another, (86) and that, "[i]f rigorously followed by judges, the inflationary interpretation of the impact of a mandatory minimum carries the potential to wreck the current architecture of the sentencing process." (87)

Another systemic danger is that mandatory minimum penalties might create "artificial gradations between offences of comparable seriousness." (88) Roberts illustrates this point in reference to the four-year mandatory minimum penalty for manslaughter committed with a firearm. (89) The normal sentencing range for manslaughter is extremely broad, reflecting the enormous variety of circumstances that can give rise to unintentional homicide. The statutory penalty injects a defined judgment of moral blame into this spectrum based solely on the use of a firearm. Roberts considers this distinction absurd, and invokes two contrasting cases for illustration:
In R. v. Turcotte, the offender was convicted of manslaughter. He had
used two telephone cords to strangle his frail, septuagenarian mother.
A community-based sanction was imposed by the trial judge and
subsequently upheld by the Ontario Court of Appeal. Had the offender
used a firearm, he would have been sentenced to at least four years in
prison. But is manslaughter committed by means of strangulation less
worthy of denunciation than one involving a firearm?
Contrast the Turcotte decision with Morrisey, where the offender was
convicted of criminal negligence causing death that, like manslaughter,
carries a maximum penalty of life imprisonment. While in a state of
inebriation, Mr. Morrisey caused the death of his friend when the gun
that he was carrying discharged unexpectedly. Why is the need for a
harsh, denunciatory sentence so pressing in Morrisey and yet absent in
Turcotte?. (90)


The contrast is striking, but there is a weakness to Roberts' assessment in attributing the dissonance between these sentences to the mandatory minimum penalty rather than to judicial decision-making. His critique depends on trust in the judiciary, but parliamentarians might point to Turcotte as the very kind of decision that warrants legislative intervention in the first place. If, for example, we consider the use of a firearm as a proxy for risk assumption, then the legislated penalty could be understood as legitimately targeting intentional or reckless--and therefore particularly blameworthy--behaviour. Considered through that lens, the arbitrariness that Roberts highlights largely falls away. His example could be an argument for more mandatory penalties, not fewer. At base, both individual and systemic retributivist critiques confront problems of indeterminacy in measuring moral blame.

These criticisms encapsulate a general flaw in the critical literature: it assumes that judicial sentencing is fine as it is. Mandatory minimum penalties, of course, suggest that the government disagrees. The implications of this variance are significant, since "[a] sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives." (91) Where Parliament, speaking for the public, thinks fit to forcefully intervene in sentencing, we should assume it does so because it believes something is broken--that public morality is not being properly reflected by judicial morality. The credibility of the criminal process is thus at stake. (92)

We can summarize my argument to this point as follows. The multifaceted approach to sentencing enables individualization, but it also risks subjectivism. Although the tension is theoretically resolved in the circumscribing principle of proportionality, this standard is not self-explanatory; it engages reasonably indeterminate values that someone must assess. Whether mandatory minimum penalties are incompatible with proportionality thus depends on how we understand and weigh the purposes of punishment as well as moral blame. Consequentialist critiques of mandatory minimum penalties do not end the discussion since there remains some rational basis for Parliament to legislate penalties on the basis of crime control. Communicative critiques rest on how heavily we weigh expressive goals. Retributivist critiques raise serious challenges on the basis of the potential for specific and systemic disproportionality, but face problems of reasonable indeterminacy and assume the integrity of sentencing without legislative involvement, while disregarding that mandatory minimum penalties reflect a measure of public distrust in the judiciary. (93) If proportionality is not plain fact, we have to consider whose assessment governs. Why should judges have the last word on "intractable, controversial, and profound questions of political morality that philosophers, statesmen, and citizens have debated for many centuries?" (94) This question turns on the relationship between Parliament and the courts.

B. The Institutional Debate: Mandatory Minimum Penalties in Dialogue

The paradigmatic conception of the relationship between Canadian Parliament and the courts is constitutional dialogue. (95) Peter Hogg and Allison Bushell first posited dialogue theory in answer to criticism surrounding unelected judges invalidating democratically enacted law. They argued that judicial review is legitimate as long as government has a right of reply:
Where a judicial decision is open to legislative reversal,
modification, or avoidance, then it is meaningful to regard the
relationship between the Court and the competent legislative body as a
dialogue. In that case, the judicial decision causes a public debate in
which Charter values play a more prominent role than they would if
there had been no judicial decision. The legislative body is in a
position to devise a response that is properly respectful of the
Charter values that have been identified by the Court, but which
accomplishes the social or economic objectives that the judicial
decision has impeded. (96)


In this construction, dialogue theory filters legislation through Charter scrutiny and improves it (97) by providing a moral limit to the law. (98) It is facilitative, since dialogue enables government to accomplish its goals in the best way possible. (99)

Dialogue theory was quickly entrenched in judicial imagination, and strong judicial review became a practical fixture of Canadian jurisprudence. (100) Yet, while it may have been freeing for the courts, dialogue has been the subject of intense debate, particularly in respect of issues characterized by relative indeterminacy. (101) Extreme critiques claim that dialogue rationalizes, or even moralizes, a self-defining power to dictate constitutionalism from the bench. (102) The most incisive critique is that dialogue does not justify judicial review but only promises that court supervision will not derail democracy. Dialogue tempers judicial power without establishing its virtue. (103) Hogg and Bushell, assessing the influence of their theory ten years on, dismiss the criticism as academic. They claim that "[t]he constitution of Canada assigns judges their adjudicative role, and if that role is 'undemocratic/ there is little judges can do about it." (104) This attempt to blunt critique overlooks the gulf between the existence of a power and its use. Choosing to use a power requires a justificatory theory, (105) and the most contested issues, those on which people reasonably disagree, demand the most robust theories of all.

One possible justification of judicial primacy is that judges consider themselves uniquely capable of identifying correct answers to constitutional questions. (106) The case law demonstrates that dialogue is only really possible within a range of options that judges consider reasonable. Christopher Manfredi, a critic of judicial review, draws this out in reference to a failed attempt at dialogue. (107) In Sauve v Canada (Chief Electoral Officer), (108) a majority of the Supreme Court struck down a partial ban on prisoner voting. The ban had been enacted after the Court had previously invalidated a more comprehensive one as overly broad and disproportionate to its aims. (109) Rather than treating the new legislation as an appropriate response, Chief Justice McLachlin admonished that "dialogue between the legislature and the courts should not be debased to a rule of 'if at first you don't succeed, try, try again.'" (110) The constitutional question, for Chief Justice McLachlin, had a right answer that left no room for further discussion.

Similarly, the Supreme Court has said that "[d]eference ends... where the constitutional rights that the courts are charged with protecting begin." (111) In R v Oakes, the Court connected limits on government action to a robust vision of democracy, premised on "respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society." (112) The result is that Parliament's choices will only be considered reasonable if they genuinely correspond to these normative commitments. Rhetoric is not enough: ''Parliament cannot use lofty objectives to shield legislation from Charter scrutiny" (113) If "symbolic and abstract" reasons were enough to violate rights, "judicial review either becomes vacuously constrained or reduces to a contest of 'our symbols are better than your symbols.'" (114)

This sounds principled, but the implicit assumption of correctness and the self-constructed inner morality of judicial review present immediate difficulties for sentencing, as demonstrated in Nur. Democratic values are not straightforward. They do not lend themselves to "right answers," and the government and the courts often invoke identical values to entirely different effects. (115) The Oakes conception of democracy is itself symbolic and abstract. Further, values are often in tension, and an expansive definition of one might necessarily diminish another. (116) We see this dilemma starkly in the conflict between crime control and rights approaches to punishment. As Jeremy Waldron argues in his critique of judicial review, a sincere and shared commitment to rights is entirely compatible with instances of profound and pointed disagreement about their meaning and scope. (117) If true, then relying on judges to decide issues involving legitimate disagreement, a range of reasonable positions, and serious political engagement just trades democratic constituencies. In Waldron's words, "it comes down to head-counting." (118) The need for a defence of the exercise of judicial discretion in determining moral blame over Parliament, even within a framework of dialogue, remains. (119)

Nur illustrates the poor reasoning that results from judges assuming a primacy they have not fully justified. Ironically judges have largely failed to develop such a justification as a result of their past restraint in considering mandatory minimum penalties. The Supreme Court has upheld the vast majority of these Charter challenges and has been historically reluctant to use the reasonable hypothetical device it created to assess cruel and unusual punishment. (120) When it did, the Court often split on the reasonableness of the posited scenario, demonstrating that the purportedly simple task of fitting a factual scenario within a statutory rule was far more subjective and complex than it seemed. (121)

More importantly, before 2008, judges were able to grant case-by-case discretionary exemptions from mandatory minimum penalties. The practice was a judicial invention under section 24(1) of the Charter, which gives judges broad discretion to grant case-specific remedies. It enabled courts to uphold the substantive validity of generally constitutional laws, but avoid adverse effects in exceptional or unforeseen cases. (122) The constitutional exemption died in R v Ferguson. Chief Justice McLachlin, writing for a unanimous court, held that constitutionality had to be addressed at a doctrinal level, rather than in factual silos. She reasoned that a judicially created exemption undermined the legislature's clear intent in enacting mandatory minimum penalties; it imported judicial discretion into a statute that explicitly sought to exclude it: (123)
The intention of Parliament in passing mandatory minimum sentence laws,
on the other hand, is to remove judicial discretion to impose a
sentence below the stipulated minimum. Parliament must be taken to have
specifically chosen to exclude judicial discretion in imposing
mandatory minimum sentences.... The law mandates a floor below which
judges cannot go. To permit judges to go below this floor on a
case-by-case basis runs counter to the clear wording of the section and
the intent that it evinces. (124)


She concluded that, "[b]ad law, fixed up on a case-by-case basis by the courts, does not accord with the role and responsibility of Parliament to enact constitutional laws for the people of Canada." (125) The flexibility of constitutional exemptions came "at the cost of undermining the rule of law," (126) and fundamental values of "certainty, accessibility, intelligibility, clarity and predictability." (127) The "least intrusive" approach vis a vis Parliament in that circumstance was not to provide an exemption, but to strike down the law in its entirety. (128)

The unmaking of the judicially constructed safety valve led inexorably to Nur. (129) After Ferguson, the constitutionality of mandatory minimum penalties became a binary, rather than a status that could be generally achieved. Yet, in the shadow of constitutional exemptions, the jurisprudence has failed to develop the tools needed to determine constitutionality--particularly, how philosophies of punishment, discretion, and institutional roles relate to proportionality. Their only tool was a malleable, controversial "hypothetical." Nur demonstrates how this apparatus papers over the problem that the Court has not yet fully understood or defended the moral justification for its own primacy. To build the argument that the majority in Nur should have made in dismissing prosecutorial discretion as a safeguard against disproportionality, while still respecting institutional roles, we need to take a closer look at the nature of discretion and the distinctions between prosecutors and judges.

IV. THE DOUBLE-EDGED SWORD OF DISCRETION

A. The Problem with Discretion

Discretion is an essential and inescapable part of the criminal justice process. As Loraine Gelsthorpe and Nicola Padfield write in their examination of decision-making within the criminal justice system, the "day-to-day discretionary actions of police officers, prosecutors, defence lawyers, judges, psychiatrists, prison, probation, and immigration officers" (130) significantly impact offenders. These choices are ultimately "the 'stuff of justice'," (131) but they have a dual character. Discretion enables individualization but undermines consistency, certainty, and objectivity. Andrew Ashworth describes this tension as follows:
[D]iscretion brings not only advantages, in the shape of flexibility to
respond to different combinations of facts, but also disadvantages, in
that it may allow the individual views of the decision-maker to
influence (directly or otherwise) the approach taken, with unfortunate
consequences for consistency, equality, and social justice. (132)


These pressures come to a head in sentencing.

Sentencing is the quintessential forum for discretion. Criminal punishment necessarily involves one person passing judgment on another, and this activity can only be partially accomplished by general policies. As Justice LeBel asks, "[w]ho are courts sentencing if not the offender standing in front of them?" (133) Someone ultimately needs to apply abstract aims in a specific way to an individual offender. This endeavour is intensely delicate, (134) and courts rely on the overarching principle of proportionality to defend the view that although judicial discretion in sentencing is inherently subjective, it is not altogether arbitrary. (135)

Judicial discretion, however, is not exercised in a vacuum, since sentencing decisions are partially conditioned by prior prosecutorial choice. The Crown decides whether to bring a prosecution, to enter a stay of proceeding, to accept a guilty plea to a lesser charge, to withdraw from criminal proceedings, or to take control of a private prosecution. (136) The choice of charges in particular defines an accused person's potential jeopardy on sentence. This happens most dramatically if a mandatory minimum penalty is engaged, but also more gently by selecting charges that generally commit judges to an established sentencing range. The judicial and prosecutorial roles are, therefore, intertwined. However, this normally symbiotic relationship becomes disjointed where mandatory minimum penalties are concerned.

There are two concerns when prosecutorial choice fetters judicial discretion in sentencing. The first concerns circumvention: some commentators suggest that prosecutors exercise their discretion to avoid the harsh effects of legislated penalties. (137) Routine circumvention compromises important legal values of certainty and predictability, and raises general concerns about unaccountability. The second anxiety pertains to the possibility of wrongful convictions because of how mandatory minimum penalties impact plea negotiations. The prospect of a harsh penalty on conviction following a trial could fundamentally alter the power dynamic between accused persons and prosecutors, resulting in the innocent pleading guilty as a form of risk-avoidance. In the section that follows, I argue that these objections to Crown discretion are valid, but ultimately inadequate to explain the Nur Majority's implicit claim to the primacy of judicial discretion. Only after these protests are cleared away can we focus on a better defence.

B. Circumvention and Unaccountability: The Secret Realm of Crown Discretion

Mandatory minimum penalties are theoretically unflinching, but practically, may be anything but. David Bjerk examined the effect of mandatory minimum penalties on prosecutorial decision making by documenting the effects of "three-strikes" laws targeting repeat offenders in the United States through the 1990s. He concluded that prosecutors intentionally and routinely bypassed mandatory minimum penalties to avoid injustice or to secure a guilty plea. (138) If this ingenuity pursued justice, it did so at the expense of transparency, accountability, and certainty--the very values that mandatory minimum sanctions are intended to further.

The circumvention argument is powerful at first blush. There is something perverse about mandatory laws that foster their own disapplication behind closed doors. However, this risk that law is supplanted by discretion only applies if the choice to avoid the mandatory minimum occurs outside the law. The situation is entirely different if the "circumventing" choice falls within the scope of a statute. This was the case with the hybrid offence in Nur, where the lesser charge was included in the legislation through the option of a summary conviction offence. (139) Justice Moldaver emphasized the point as follows:
Crown election under s. 95 does not require prosecutors to go outside
the law. Rather, it is a discretion built into the legislative scheme
that acts as a safety valve to guard against unconstitutional
applications of the law. In my view, any meaningful assessment of the
law's constitutionality must take this factor into account.... However,
in recognizing the relevance of the Crown election, I should not be
taken as saying that this safety valve insulates the law from Charter
scrutiny. Rather, it simply informs how that scrutiny should be
applied. (140)


The reallocation of discretion in Nur did not engage the same kind of circumvention concerns pertaining to prosecutors that non-hybrid offences do. An embedded concern about unaccountability however, is relevant. This criticism builds on the potential for circumvention by aiming at the way prosecutorial decisions are made and in particular, at a lack of decisional oversight. The attack is directed at the prosecutorial role itself.

Prosecutorial decision-making is largely unchecked and immune from review; it is therefore ripe for abuse. Crown independence is rooted in constitutional principles and the rule of law, (141) and has been recognized by the courts as "a necessary part of a properly functioning criminal justice system" (142) and even the "hallmark of a free society." (143) The Crown's role is quasi-judicial, and prosecutors have corresponding ethical and professional duties to act as ministers of justice. (144) As underlined by the Supreme Court in R v Boucher, prosecutors do not win or lose:
It cannot be overemphasized that the purpose of a criminal prosecution
is not to obtain a conviction; it is to lay before a jury what the
Crown considers to be credible evidence relevant to what is alleged to
be a crime....The role of prosecutor excludes any notion of winning or
losing; his function is a matter of public duty than which in civil
life there can be none charged with greater responsibility. It is to be
efficiently performed with an ingrained sense of the dignity, the
seriousness and the justness of judicial proceedings. (145)


Crown discretion is protected in virtue of prosecutors' principled role as "symbols of fairness," "of absolute integrity, above all suspicion of unfair compromise or favouritism." (146) Yet, prosecutorial choice is not sacrosanct. Discretion will not insulate prosecutors if they breach Charter rights or violate constitutional duties. Judges must presume that prosecutorial discretion is exercised in good faith, but they can, and should, intervene where Crown conduct or decision-making is "egregious and seriously compromises trial fairness and/or the integrity of the justice system." (147)

The deferential approach to reviewing Crown discretion has a logical basis. Normatively, it ensures that prosecutorial decisions stand apart from outside pressure, be it judicial or political. (148) Pragmatically, routine judicial review of daily prosecutorial decision-making would be unwieldy and would cripple an already debilitated system. (149) Justice Michael Code, reflecting on the judicial relationship to prosecutorial discretion, describes this effect as follows:
[A] deferential standard of review in relation to prosecutorial
decisions is justified by the need to prevent constant second-guessing
of the many small choices or "judgment calls" that the Crown must make
during the conduct of a case. A right to liberal or routine judicial
review of every prosecutorial decision would consume enormous amounts
of court time, thus detracting from the trial on the merits, and would
also convert the trial judge into a supervising prosecutor. (150)


Pre-trial judicial review of prosecutorial decisions would be even more cumbersome. Crown discretion plays an important triage function at the early stages of prosecution, before matters go before a judge for trial. By determining which cases to prosecute and how, prosecutorial decision-making keeps the criminal justice system from grinding to a halt. Screening out weak cases and determining which matters are in the public interest is critical in this regard.

Crown discretion is considered essential to an efficient, functioning criminal justice system. (151) Yet, as David Vanek comments, this routine decision-making can be criticized for being opaque and potentially unprincipled:
Under the pressure of heavy caseloads, particularly in the larger
centres of population, there is a growing tendency amongst Crown
counsel to use their extensive powers as a means of disposing of the
cases on the daily calendar by short cuts such as negotiated pleas and
negotiated sentences rather than to undergo trials or other lengthy
hearings. In the result, Crown counsel exercise considerable effective
control over dispositions and sentences outside of the purview both of
the courts and the general public. (152)


Vanek's critique that legal issues might be decided outside of legal rules amounts to a more generalized circumvention concern. As with efforts to avoid mandatory minimum penalties, prosecutorial discretion is problematic because it is exercised beyond the accountability of the normal checks and balances provided in the courtroom. Unaccountability might seem particularly troubling when it relates to decisions that directly impact punishment, but there is some difficulty in explaining exactly why this is so. The pitfalls of discretion apply equally to the range of prosecutorial decision-making that the law affirms and protects as vital to the criminal justice system. Many of these discretionary decisions ultimately bear on punishment, if in a more indirect or remote way. (153) If independence is vital to the Crown's principled role, then the problem cannot lie with the general unaccountability of prosecutorial discretion per se, but rather in the nature of sentencing.

Critiques about unaccountability must also be assessed in relative terms, since judges are subject to similar accusations. We have already discussed the institutional critique about unelected judges deciding intractable issues within a democracy. Another is the limited accountability provided by the appeal process. The paucity of legal aid and the difficulty of launching self-represented appeals functionally limit access to appellate review. (154) This often gives individual judges the last word without meaningful supervision.

More theoretically, the breadth of sentencing parameters and possible justifications for punishment generally enables judges to insulate their decisions against appellate intervention through reasons, even in the face of an established range in the case law. In Lacasse, the majority of the Supreme Court recently upheld the imposition of an exemplary sentence outside the parameters of decided case law and affirmed that a judge's deviation "from the proper sentencing range does not in itself justify appellate intervention." (155) The dissenting justices, by contrast, considered the penalty an abuse of discretion. This divergence shows that even at the highest level of judicial decision-making, an appeal does not ensure fidelity to decided law. Even when it does offer a measure of scrutiny, appellate review only ensures internal responsibility to the judiciary itself. (156) This is poor comfort to anyone not dressed in robes.

Intuitively, however, judges seem more accountable than prosecutors, and in Nur, prosecutorial discretion was considered so unsafe in comparison to judicial choice that it prompted the majority to strike down valid law. (157) But if judges are not responsible in democratic terms and not strictly accountable to established law, how precisely are they accountable? I will return to this question in due course, but at this point it suffices to say that judicial discretion is not fully responsible and therefore shares some vulnerability with prosecutorial discretion. This means that if accountability is to be a cogent justification for the superiority of judicial over prosecutorial discretion, it must be accountability of a distinct kind.

C. Discretion, Plea Negotiations, and the Prospect of Wrongful Convictions

If circumvention and unaccountability do not fully justify the differential status of judicial and prosecutorial discretion in Nur, an obvious distinction is positional. Judges are never in an oppositional role against the accused. There is a comparative tension between the Crown's quasi-judicial and adversarial roles in the criminal process. The trial method requires that prosecutors assume an adversarial posture vis-a-vis the accused as a matter of practical necessity. (158) Someone must prosecute the offence. Further, the prosecutor's robust ethical duties are rooted primarily in broad considerations of the public interest, (159) rather than in any narrow responsibility to the individual accused. This means that Crown obligations to be fair and impartial do not extend to a substantive duty of neutrality in the same way they do for the judge. Similarly, because prosecutors act in the public interest, they do not have any obligation to engage deeply with the personal situation of an individual accused in their decision-making, nor the ability to do so. Such personal information is generally unavailable to prosecutors unless, and until, volunteered by defence counsel. At the end of the day, prosecutors are a very special brand of advocates, but advocates nonetheless.

The Crown's oppositional posture and fidelity to public interest become particularly contentious in plea negotiations. Outside the ambit of the courtroom, prosecutorial discretion can become a tool for power over individuals. Even well-intentioned prosecutors may act improperly either by virtue of inexperience or insufficient rules. (160) Plea discussions tend to occur in the early stages of a case in a context where guilt has not been proven, and where it is unknown whether it can be proven at all. (161) These negotiations become high stakes gambling for the accused. On the one hand, the accused has the uncertain option of a trial. The accused might be acquitted or convicted, but in the latter circumstance, the accused loses the mitigating impact of a guilty plea on sentence. On the other hand, a negotiated plea promises a less serious charge or a reduced prosecutorial position in sentencing submissions, in addition to the mitigating effect of a guilty plea. (162) Good legal counsel can play an important role in assisting the accused in making this decision, but quality of counsel is highly variable (163) and does not change the prosecutor's positional advantage in controlling the ultimate charges that will be pursued. Certainty is alluring. It provides an incentive to forego a trial and gives the Crown a definite upper hand in conducting plea discussions.

Crown influence in plea discussions is heightened when charges engage a mandatory minimum penalty. There, an individual prosecutor's choice firmly defines an accused's jeopardy. An offender facing a mandatory minimum penalty cannot rely on the hope of judicial discretion; the offender's only opportunity for mercy lies with the prosecutor. This degree of prosecutorial power can infuse plea negotiations with a suffocating pressure that gives prosecutors perverse leverage to extract a plea. (164) John H. Langbein assails plea negotiation as having a coercive effect akin to torture. He frames the practice as a method of "condemnation without adjudication" (165) that endangers fundamental values and risks perverse outcomes. (166) The biggest fear, and one borne out by anecdotal evidence, is that innocent people may be prone to plead guilty as a form of risk avoidance, resulting in miscarriages of justice. (167)

The potential for wrongful convictions was central to the majority reasons in Nur.
[V]esting that much power in the hands of prosecutors endangers the
fairness of the criminal process. It gives prosecutors a trump card in
plea negotiations, which leads to an unfair power imbalance with the
accused and creates an almost irresistible incentive for the accused to
plead to a lesser sentence in order to avoid the prospect of a lengthy
mandatory minimum term of imprisonment.... We cannot ignore the
increased possibility that wrongful convictions could occur under such
conditions. (168)


It would be easy to stop here. Any increased risk of wrongful convictions must be scrupulously avoided. It is tempting to conclude, on that basis alone, that prosecutorial discretion is an unjustified safeguard against cruel and unusual punishment. That was the thrust of the majority reasons in Nur, but the potential impact of harsh jeopardy deserves careful examination if we are going to fully understand the distinct claims of prosecutorial and judicial discretion.

As I have argued, many prosecutorial decisions have enormous effects on accused persons. If we accept that prosecutors legitimately exercise lesser power in the ordinary course of events, then the objection to discretion in the context of mandatory minimum penalties becomes one of degree rather than principle. The majority justices' reasons in Nur, however, suggest that the reallocation of discretion from judges to prosecutors within the mandatory minimum penalty created a distinct harm, rather than simply compounding a problem in the system. To see this, we need to differentiate between two categories of accused persons. The first is the factually innocent individual who pleads guilty due to the fear of a mandatory minimum sentence if convicted. (169) This fear is rooted in the prospect of a wrongful conviction if the accused went to trial. If wrongfully convicted, a mandatory minimum penalty would compound an injustice that had already occurred, but it would not be logically constitutive of it. There may be irresistible pressures at play in plea negotiations, but the factually innocent offender must logically be afraid of wrongful conviction before fearing wrongful punishment. (170)

The second situation is the factually guilty offender. If this offender pleads to a lesser offence to avoid a mandatory minimum penalty, the presumption of innocence along with the opportunity to "test" the state's evidence and potential for a more lenient sentencing judge upon conviction are lost. (171) The primary risk to the integrity of the justice system in this case is conviction of a factually guilty individual on a weak or insufficient case. This might be a wrongful conviction in the technical legal sense, but not in the way we normally mean when we talk about a fear of conviction on factual innocence. Again, the issue that logically determines this accused's decision to test the state's evidence is the strength of the state's case and the related prospect of conviction. It is not, strictly speaking, the mandatory minimum penalty. Introducing a mandatory minimum penalty logically impacts plea negotiations, but primarily by altering the accused's risk calculus. A definite penalty might make the accused's risk more dramatic, but also more determinate. Otherwise, the accused faces indeterminate jeopardy on conviction. A mandatory minimum penalty precludes the potential for a more lenient judge, but lenience is far from certain. The sentencing judge might consider the offender's moral blameworthiness more serious than Parliament or might be more enthusiastic of deterrence, notwithstanding the academic literature.

This disambiguation of risk is admittedly insensitive to the real experience of vulnerable accused persons making decisions that have profound effects on their lives, families, and futures. It does not address how an increased prevalence of guilty pleas impacts minority communities that are significantly and disproportionately overrepresented in the criminal justice system through markedly higher rates of arrest, prosecution, and incarceration. (172) Nor does it address the prospect that guilty pleas flow from a desire to avoid the cumbersome procedure of a trial and the unpleasantness of time spent in custody. (173) But my exercise has a narrower focus. It aims to precisely identify the logical problem that prosecutorial discretion presents for the majority in Nur. If the coercive nature of plea negotiations is the underlying problem, we should direct our concerns to reforming that practice, rather than to mandatory minimum penalties as a compounding factor. There is significant literature advocating the elimination of plea bargaining, arguing that the practice sacrifices fundamental values of the criminal justice system, in particular, the high standard of proof required for conviction in order to justify human judgment. (174) Yet, plea negotiation itself is not the target in Nur.

The majority justices in Nur assert that the fairness of the criminal process and the sanctity of sentencing hang in the balance. (175) Yet, it is not entirely clear on their reasons why this is so. Mandatory minimum penalties logically enhance certainty and informed decision-making at the plea bargaining stage, and in this sense, they treat accused persons as rational, moral, autonomous agents. If these factors are outweighed, it must be because the majority considers a different rule of law value to be more important. In this, it is highly telling that the majority reasons invoke a fear of wrongful convictions in a decision about disproportionality. The majority justices were not centrally concerned with factual innocence since the appellants in Nur were factually guilty. Even the reasonable hypothetical involved a factually guilty offender who was arguably morally innocent. The fairness concern, then, cannot simply be about jeopardizing factual innocence. It has to relate to factually guilty persons as well. The majority justices' anxieties about fairness betray a worry about the factually guilty person making decisions at the barrel of a metaphorical gun. This is not a question of degree. It is one of principle that flows from the factually guilty person being deprived of a particular actor's exercise of discretion--the judge.

We finally arrive at an examination of what makes judicial discretion unique. The discussion to this point has established that the relevant distinction between judicial and prosecutorial discretion in Nur cannot be about avoiding circumvention, since the route around the mandatory minimum penalty was legally prescribed. It cannot be simply about general accountability to a higher authority, because judges are vulnerable to critiques in this regard, including a lack of democratic responsiveness, the ability to insulate themselves against an appeal, and the practical and inherent limits of the appeal process itself. Nor can it be entirely positional, since prosecutors regularly exercise significant discretion throughout the criminal process that we not only allow, but applaud, notwithstanding their quasi-oppositional position to the accused. This holds true in plea negotiations, where prosecutorial discretion might compound a problem but does not logically create it. Finally, this paper has argued that the values involved in proportionality and moral judgment are reasonably indeterminate. This means that judicial discretion cannot have supreme status by virtue of any claim to the superior strength of judicial character. If the virtue of discretion lies in an appeal to personal morality, we might prefer individual prosecutors to judges on that basis. The uniqueness of judicial discretion must lie elsewhere.

In the next section, I argue that the distinguishing feature of judicial discretion in sentencing is that it is instantiated through an enterprise of justification. (176) I will argue that the exercise of giving reasons that reconcile various interests in an individual sentence for an accused makes judicial discretion, and the resulting punishment, uniquely moral. (177) This process is constitutive of proportionality, and provides the best defence of the decision in Nur and the judicial role in sentencing.

V. RECONCEIVING PROPORTIONALITY AS A MORAL PROCESS

A. Tripartite Justification: A Defense of the Moral Status of Judicial Discretion

Proportionality is easily treated as an instrumental means to a fair outcome--a just equivalency between two values. (178 ) I have argued that this view is deceptive, since sentencing engages subjective value assessments where there is no reason judicial views should necessarily prevail. Outcome-based defences for judicial discretion gloss over this dilemma. (179) Process-based reasons, by contrast, provide a normative and functional justification for why judicial discretion is morally superior to both Parliament's and prosecutors' in sentencing. Process also explains why the shift of discretion in Nur was unconstitutional even if it never actually yielded a disproportionate result: the reallocation harmed the process of proportionality, which ultimately renders a sentence morally legitimate.

The Supreme Court is adamant that the constitutional duty of proportionality rests exclusively with judges. In Rv Anderson, the Court rejected the premise that prosecutors have a constitutional duty to consider proportionality in deciding to proceed in a manner that would trigger a mandatory minimum regime. The Court drew a sharp line between the judicial and prosecutorial roles: "[i]t is the judge's responsibility to impose sentence; likewise, it is the judge's responsibility, within the applicable legal parameters, to craft a proportionate sentence." (180) These roles, however, are not watertight. For example, the applicable legal parameters often include a prior exercise of prosecutorial discretion, such as charge selection, which is informed by the Crown's ethical duty to consider proportionality, even if not by a constitutional one. (181) The functional dichotomy between judges and prosecutors is thus imperfect. Sentencing may be "an inherently judicial function" (182) as the majority in Nur claim, but without further justification, the "inherent function" might be a practical requirement (183) rather than a normative necessity. My theory claims that it is both. The morality of judicial discretion lies in a tripartite justification of its exercise to the offender, to the public, and to the judge.

Judges are the only actors in the criminal justice system that must justify their decision directly to the offender. The judge translates abstract principles and evaluations of blame into specific reasons for censure. (184) Explaining how a sentence reflects penal aims and philosophies within the rubric of proportionality, the ethical check on punishment, is thus an exercise of moral justification. The focus at this stage is normally on the offender, and the jurisprudence tends to emphasize the need for a nuanced understanding of the person who committed the act rather than a narrow focus on the act itself. (185) Yet, as I have underlined throughout this paper, individualized tailoring does not preclude a penal floor as a matter of logical necessity. My argument has stressed that this depends on who assesses moral blame and how.

But sentencing is not only about the offender--punishment also engages the moral agency of the judge. Adequate theories of punishment must account for the fact that judges bear the grave responsibility and moral weight of passing judgment on another human being. (186) Judicial decisions will only be morally justified, and the judge's moral agency will only be maintained, if the judge considers that a punishment respects the offender's inherent dignity and therefore remains within retributive bounds. Thomas Nagel argues that the state treats someone as a mere means, and therefore a scapegoat, when a person is forced "to serve an end that he cannot be given adequate reason to share." (187) There are two potential scapegoats in sentencing: the offender and the judge. The judge must give an accused reasons for punishment with an end that the accused can share in, meaning that they must be individualized. But if the state has not given the judge adequate reasons that the judge could share for a quantum of punishment, reasons that go beyond the mere authority of the state to punish, the judge risks being made into a scapegoat for Parliament's sins. The ethical character of punishment would be significantly compromised if judges imposed and defended sentences that they thought were immoral. Justice would be a charade. Judicial morality, however, engages subjectivity. A defence on the basis of moral agency risks becoming a tautology unless we consider a third constituency: punishment is also about the public.

Judicial morality is not strictly personal. A judge must determine the law as informed by established case law, the Charter, and jurisprudential values. But judicial justification also requires that judges confront the contingency of their own assessments by considering public perspectives on blame. The communicative aim of punishment in Canadian sentencing, the use of standards of public decency as a proxy for gross disproportionality, and the importance of public perception to confidence in the justice system all point to the value and relevance of public morality in sentencing. Judges are not morally justified in imposing a sentence if they fail to take this public perspective seriously. Yet, judges cannot instill, express, or further society's values unless they know what they are. One of the ways in which these values come before the court is through government action, including in legislated mandatory minimum penalties that express views on moral fault and blame.

This tripartite conception of justification pulls together the threads of debate drawn out at the beginning of this paper. It also illustrates why the academic discourse on this subject is unhelpful. The fact remains that there is some basis in penal philosophy for government to enact mandatory minimum penalties and an open question on the basis of dialogue theory for why judicial discretion should decide reasonably indeterminate issues. Scorning mandatory minimum penalties as mere political ploys fails to offer judges any tools to engage government assessments of blame beyond dismissing or avoiding them. Those options are not open to the judiciary if punishment is to be fully moral. Judges must filter public assessments through the Charter, but they cannot and must not dismiss them.

Reconciliation of these perspectives happens through reasons. Lacasse is an interesting case study of how this operates in practice. In Lacasse, an 18-year-old first time offender appealed his six-and-a-half-year sentence of imprisonment for two counts of impaired driving causing death. (188) The sentencing judge had imposed an exemplary sentence on the basis of denunciation and deterrence, and assigned a magnified importance to each in light of the local prevalence of impaired driving offences. (189) The Court of Appeal intervened and reduced the sentence, finding that the sentencing judge had underemphasized rehabilitation, overemphasized denunciation and deterrence, and imposed a sentence that was above the established range. (190) At the Supreme Court, the justices split on the limits of judicial discretion in determining proportionality, deciding seven to two to sustain the exemplary sentence. Justice Wagner, writing for the majority, affirmed that the "[t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation." (191) Nevertheless, he also stated that proportionality is the cardinal principle of sentencing, and that "[a] sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle." (192) This emphasis on unreasonableness in reference to proportionality is important, since it emphasizes process over outcomes.

For the majority justices in Lacasse, the exercise of judicial reasoning in sentencing remedied what would have otherwise been an unfit outcome. The majority's decision affirmed the sentencing judge's discretion to treat the offender as a means for social deterrence and symbolic denunciation in the particular circumstances of his offence and his relevant community. This is striking, since one of the strongest critiques of mandatory minimum penalties, as I have outlined, is that they improperly subjugate individuals to the collective and make people scapegoats for social aims. Yet, this problem is somehow rectified in Lacasse, when done by the judge. The specific judicial decision is justified in a way that a generalized political one is not.

Lacasse illustrates how judicial reasoning enables tripartite justification, and thus a moral sentence, even in the context of a controversial outcome. First, the reasons explain to the offender why he--as an individual, in the particular circumstances of his offence and as a member of a defined community--should bear the burden of punishment. Second, they outline the sentencing judge's understanding of what justice demands in virtue of applicable statutory principles, jurisprudential values, and case law. Third, they take public perception and values seriously. In all of this, the judge gives the offender, himself, and the public, reasons for punishment that they can share. They take each constituency seriously. The result is that even though Mr. Lacasse received an exemplary sentence, his dignity, the judge's moral agency, and public values were maintained. Mr. Lacasse was treated as a means, but in Nagel's formulation, not only as a means, since his sentence was justified through individualized reasons rather than by an impersonalized statute. (193)

Reasons bring subjective value assessments within the ambit of the rule of law (194) and can be morally curative for an otherwise illegitimate exercise of authority. Interestingly, the dissenting judges in Lacasse invoke a much stronger vision of the kind of process that justifies sentencing. Justice Gascon (with Chief Justice McLachlin concurring) wrote that "[t]he degree of censure required to express society's condemnation of an offence is always subject to the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it." (195) He distinguished between punishing the crime and punishing the offender, emphasizing that personal moral blame is a fetter on any sentencing objective:
Although a court can, in pursuit of the objective of general
deterrence, impose a harsher sentence in order to send a message with a
view to deterring others, the offender must still deserve that
sentence.... If a judge fails to individualize a sentence and to
consider the relevant mitigating factors while placing undue emphasis
on the circumstances of the offence and the objectives of denunciation
and deterrence, all that is done is to punish the crime. (196)


Justice Gascon's reasons stress that process is a significant component of sentencing:
A sentence must reflect a consideration of all the relevant factors,
and it is in this sense that the "process" of sentencing is
important.... The fitness of a sentence is determined on the basis of
several relevant principles, objectives and factors, and a sanction may
be unfit if there is a reviewable error in the thought process or
reasoning on which it is based. However, it is only by assessing that
process or reasoning that an appellate court can determine whether the
identified errors make the sentence unfit. (197)


He emphasizes that falling within an established sentencing range does not guarantee fitness. Rather, fitness and proportionality are fundamentally the function of reasons. (198) Justice Gascon stops short of equating process errors with disproportionality but contemplates a very close relationship between the two. (199)

Despite their disagreement in Lacasse, all nine justices presume the importance of process, and both opinions accept that fundamental values are concretized through the exercise of judicial sentencing. Seen through this lens, the Nur decision is not as activist as it might first appear. Reallocating discretion to prosecutors to achieve proportionality changes the structure of sentencing from one of moral justification by the judge, to one of institutional justification by the state. An institutional justification claims that the exercise of discretion is warranted in virtue of being conferred by the state. (200) A moral justification does more: it explains why the exercise of discretion is warranted in virtue of both authority and values, including individual dignity, Charter morality, and public standards. The distinct harm caused by the reallocation of discretion in Nur is the loss of a moral justification for punishment that the process of proportionality provides. (201)

At this point, there may be an objection that my argument is internally inconsistent. This paper has critiqued judicial reasons on the basis that they can be an illusory guarantee of objectivity, provide rhetorical cover for subjective preference, and operate as a guise to avoid appellate scrutiny. Now, I am pointing to judicial reasons in defence of the morality of judicial discretion. This reversal might seem hopelessly incoherent. But there is an important distinction between practice and potential. My argument does not rest on what reasons invariably accomplish, but on what they are uniquely capable of achieving.

I argued in Part III of this paper that a general appeal to "accountability" was an incomplete defence for the primacy of judicial discretion. Rather, justification on this basis had to be grounded in a very specific kind of accountability and not the simple prospect of authoritative review. (202) Proportionality as a process explains the kind of accountability that uniquely lies in judicial discretion. The judge is the only actor who is capable of justifying punishment to three relevant constituencies. The government cannot ensure a fully moral punishment because it does not give individual reasons, and therefore cannot intelligibly justify punishment to an offender's unique personal circumstances; nor can the prosecutor. The prosecutor provides a brand of reasons for the Crown's position in the form of sentencing submissions, but does not ultimately punish. The prosecutor's submissions are in the nature of advocacy rather than a moral defence for a sanction. This means that prosecutors cannot reconcile punishment with judicial morality. If the judge were forced to punish the offender in accordance with the prosecutor's position, notwithstanding normative disagreement, the judge would be compelled to effect injustice, compromising the judge's moral agency. The judicial sentencing process preserves the moral agency of both the offender and the judge in a way that an empirical result cannot. Reasons do not guarantee that the exercise of judicial discretion will be "fully moral" in the way my thesis contemplates, but reasons are a necessary precondition for this end.

Nur itself presents another challenge to my thesis. Toward the end of her decision, Chief Justice McLachlin notes that Parliament might have enacted a mandatory minimum firearm penalty with criteria corresponding more closely to moral guilt or harm. (203) If Parliament can exclude judicial discretion from sentencing simply by making the right a priori quantum assessments, perhaps process is not important after all. The weakness with this reading is that it is unresponsive to the theoretical concerns articulated in Nur, particularly the emphasis on fairness and the rule of law, their skepticism about deterrence, and the continual spectre of unforeseen consequences, no matter how tailored the penalty might be. Further, as the dissenting justices argue, the majority's proposal substitutes alternate conceptions and assessments for Parliament's and targets different conduct. (204) The majority's suggestion echoes the approach in England and Wales, which determines the seriousness of an offence in explicit reference to a consideration of harm. (205) This is a valid approach to judgment, but it is a different conception from that animating Canadian law. The dissenting justices' critique thus leads us back to where we started: the quagmire of subjectivity in determining moral blame, and the legitimate democratic objections that arise if we decide policy-centric questions by a head count of unelected former lawyers.

There are two reasons Chief Justice McLachlin's comment does not defeat my thesis. First, it is unclear from her reasoning that this type of tailoring would be constitutional. Her suggestion functions mostly as rhetorical proof that the law in question was not minimally impairing by virtue of the fact that less intrusive means were available for the government to pursue its aims. Second, this paper does not rely on an explicit understanding of proportionality as a process. My thesis draws on a thematic trend in the case law rather than a doctrinal position, and highlights a weakness in the Court's self-understanding. Nur nevertheless comes strikingly close to affirming that proportionality hinges on a process. In outlining the potential pitfalls of mandatory minimum penalties, Chief Justice McLachlin assumes an interrelationship between the way sentencing functions and the integrity of the outcome:
[Mandatory minimum penalties] may, in extreme cases, impose unjust
sentences, because they shift the focus from the offender during the
sentencing process in a way that violates the principle of
proportionality. They modify the general process of sentencing which
relies on the review of all relevant factors in order to reach a
proportionate result. They affect the outcome of the sentence by
changing the normal judicial process of sentencing. (206)


By focusing on "extreme cases" and results, Chief Justice McLachlin's assessment unfortunately links the value of process to particular outcomes. This conception does not sufficiently explain the inviolability of process in the normal course of events, but the passage nonetheless supports a growing consciousness that law must protect the sanctity of the sentencing process in order to achieve proportionality.

B. Three Frameworks for Institutional Engagement

I have argued that a conception of proportionality as a constructive moral process makes judicial discretion essential to sentencing. However, this approach risks making mandatory minimum penalties obsolete. If judicial discretion is uniquely moral, and proportionality in sentencing is fundamentally a process, why should Parliament intervene in sentencing at all? It is important to remember that the morality of judicial discretion is not in virtue of judges themselves being moral. My contention throughout this paper has been that judicial discretion is fallible, and that questions of moral blameworthiness involve relative indeterminacy in respect of which Parliament is entitled to speak. In fact, I have argued that truly moral sentences must reconcile various conceptions by engaging with their respective merits and contingencies. I have argued that mandatory penalties undermine proportionality assessments by squeezing out judicial conscience, but conversely, that the elimination of mandatory minimum penalties could shut out the government perspective in an area where it has a right to speak and, at times, perhaps even has a remedial responsibility. (207)

A belief in judicial exceptionality can turn courts into an echo chamber of insular self-justification. The underbelly of judicial independence is the potential to be disconnected from the public, its understanding of morality, and its perceptions of the justice system. This is particularly true when sentencing ranges are at odds with standards of social morality and operate to undermine public confidence in the administration of justice. How then, should we approach Parliament's claim to intervene in a traditionally judicial realm if we understand proportionality as a process? Resorting entirely to the common law does nothing to address the perceived problems that prompt legislative intervention in the first place. Rather, whatever model we choose must respect the importance of judicial discretion to moral assessments of proportionality, without sidelining the government. Mandatory minimums undermine the first; tenuous hypothetical undermine the second. I suggest three possibilities for reform. (208)

The first is to make mandatory sentences presumptive. (209) Presumptive sentences with a legislated judicial "out" clause retain the forceful quality of the government's expression but allocate ultimate responsibility for proportionality to judges. Michael Tonry describes how a presumptive approach mitigates the potential harms of mandatory penalties and argues that it would foster transparency, rather than causing judges to "resort to subterfuge" to avoid unduly harsh penalties. (210) This presumptive approach would restore the flexibility that constitutional exemptions provided before Ferguson, without the adverse rule of law consequences of a judicially created device. As the majority reasons in Nur demonstrate, the nature of the "out clause" is as important as the existence of one.

A legislated judicial safety valve respects both actors' respective functions. This approach in England and Wales with respect to comparable legislation has allowed judges to develop principled case law on what constitutes appropriate departure from the default positions. (211) For example, judges have discretion not to impose the minimum term of imprisonment for certain firearms offences if there are "exceptional circumstances" pertaining to the offender or the offence. (212) The common law has subsequently interpreted and defined exceptional circumstances on a case-by-case basis, including when the imposition of a minimum penalty would be arbitrary and disproportionate (213) and where there are significantly mitigating personal circumstances pertaining to the offender. (214) This incremental approach forces the judiciary to take the government's general assessment into account in applying the presumptive penalty or when departing from it. The problem with presumptive sentences is many of the systemic concerns about mandatory penalties remain, such as their potential to seriously distort the power dynamic in plea-bargaining and engender wrongful convictions. Judicial discretion in this formulation is a critical safeguard against an immoral sentence--but it is limited because using the safeguard must, by definition, be exceptional.

The second option is enacting judicial sentencing guidelines. This approach is a gentler structuring of judicial discretion than the presumptive model. In England and Wales, sentencing guidelines were first introduced by Parliament in 2004, (215) and have undergone a dynamic development in the years since their enactment. (216) Guidelines promote consistency in the courts' approach to sentencing; (217) encourage clarity and fairness; facilitate sentencing research; and foster public confidence. (218) They also lend a degree of transparency to both judicial decision-making and prosecutorial positions. (219) Guidelines could be created for specific offences or comprehensively. The advantage of comprehensive sentencing guidelines is that they can only be enacted after considering the entire range of criminal offences and their relativity in terms of gravity and blameworthiness. Comprehensive guidelines offer a more coherent and principled approach to a priori assessments of moral responsibility than isolated interventions, and answer the objections about ordinal proportionality that legislative intervention otherwise presents in sentencing. Done well, guidelines should be created by reference to a broad range of perspectives, including those provided by judges and established case law both domestically and internationally. (220) This level of rigour would help combat any misguided public perceptions of lenience and give government pronouncements in this arena more legitimacy.

Guidelines are not without opposition. Critiques in England and Wales include dissatisfaction with the creation and consultation process, dispute about the degree to which they bind, (221) and ambiguity about how success should be measured. (222) Further, even within the structure of guidelines, judges are often required to apply disparate sentencing aims in a particular judgment, which necessarily involves individual choice. (223) Finally, if guidelines define the mitigating effect of a guilty plea, they too can foster undue pressure to plead guilty and risk wrongful convictions. (224) If so, guidelines do not remedy the problem of state-imposed disproportionality and only alter the proximate cause. The legislation, rather than prosecutors, becomes the source of coercive pressure. As with our plea negotiations, the line between incentive and irresistible pressure will be a matter of degree.

A final option is enacting sentencing guidelines for prosecutorial submissions. (225) This is the most indirect and unconventional means of structuring judicial discretion, but one that is consonant with common law principles and the traditional division of responsibility in sentencing. The interconnectedness of the criminal justice system means that change in one area necessarily impacts another. Because Canadian prosecutors make sentencing submissions in reference to established case law, sentencing ranges are logically self-reinforcing. Inconsistent sentences can flow from disparate prosecutorial submissions as much as from inconsistent exercises of judicial discretion. If Parliament considers the range too high or too low, it could engage that assessment in a more organic fashion by structuring prosecutorial discretion, which should gradually impact the case law and, in turn, provide a partial fetter on judicial discretion. Parliament might do this by enacting a Criminal Code provision that requires prosecutors to have regard to sentencing guidelines, and to draw judicial attention to those recommendations and their stated rationales in sentencing submissions. The guidelines should clearly delineate the relevant factors of the offence and the philosophies of sentencing that underlie Parliament's generalized assessment of moral blame.

The difference between judicial sentencing guidelines is subtle, but important. The prosecutorial model provides a distinct advantage: it enables the government to practically join in rather than dictate the process of determining proportionality. Prosecutors would articulate and justify the position before the Court in every instance and not simply rely on an automatic threshold that corresponds to a choice of charge. This means that prosecutors would need to express the government's assessments of blame in terms of quantum and rationale. It also alleviates concerns about how the coercive force of mandatory or presumptive penalties turn plea discussions into gunboat diplomacy. The accused decides to plead in reference to objective guidelines. An accused has relative certainty about the range of sentence the Crown will seek but is also assured that the sentencing judge will exercise discretion in determining proportionality. Accused persons retain the right to a moral justification of their punishment, no matter how they plead.

This proposal trenches on prosecutorial independence, which I have described as a cornerstone of the criminal system and of justice itself. Principled structuring, however, is in line with the character of Crown discretion. The critical point is that guidelines would need to be designed in a way that does not compromise the requirement that the Attorney General act independently of partisan or political pressures, and that individual prosecutors have adequate flexibility in performing their daily duties. Any structuring of Crown discretion through sentencing guidelines should allow prosecutors to deviate from those parameters where appropriate, provided there are principled reasons for doing so that are articulated on the record. This preserves the constitutional principle of independence that is essential to the Crown's role; it recognizes the status of prosecutors as ministers of justice as well as representatives of the state.

This approach admittedly lacks the blunt and immediate effect of mandatory penalties to remedy a real or perceived ill. It is nevertheless a more sensitive and thoughtful way to engage a complex enterprise. The prosecutorial guideline model allows Parliament to have meaningful input into a field where they have a legitimate claim but preserves the critical division of normative roles in the sentencing process. More importantly, it ensures moral punishment by protecting the process of proportionality.

VI. CONCLUSION

Nur demonstrates how the political battle over the wisdom of mandatory minimum penalties hijacks constitutional reasoning. The courts, lacking a principled justification for the primacy of judicial discretion in sentencing, have invoked tenuous hypotheticals in the name of justice and relied on imprecise appeals to accountability, individualization, and transparency to justify the exercise of strong judicial review. That incomplete defence of judicial supremacy fuels accusations of politicization and inflames an already heated debate. This paper has tried to clear away the fog for a better way forward.

I have argued that the fundamental question beneath legal, political, and philosophical controversy is what makes punishment, and the exercise of discretion, moral. This is the issue the majority of the Court in Nur should have addressed in determining whether to invalidate the mandatory minimum penalties. Moreover, the majority should have answered the question by defending proportionality as a constructive process that is uniquely instantiated through judicial discretion. I have called this the process of proportionality. This tripartite justification provides a vital defence of judicial primacy in sentencing, and a cogent argument for restructuring mandatory minimum penalties in a way that enables more principled legislative engagement in what must ultimately remain a judicial enterprise. Intractable, controversial, and profound questions of political morality within punishment remain, but we find firmer ground for the judicial role by peeling back debate to a simple premise: proportionality is not an instrumental means of achieving a fair quantum--it is a constitutive process. It is the very essence of moral punishment.

Lauren Witten (*)

(*) LLM (Cambridge) and JD (Victoria), practicing as a criminal prosecutor in Vancouver, British Columbia. The views in this paper are mine alone and do not reflect those of the British Columbia Ministry of Justice.

(1) R v Nur, 2015 SCC 15, [2015] 1 SCR 773 [Nur].

(2.)Canadian Charter of Rights and Freedoms, s 12, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

(3.)Criminal Code, RSG 1985, c C-46, s 95(1).

(4.)Nur, supra note 1 at paras 17-23, 26. See also R v Nur, 2011 ONSC 4874, 275 CCC (3d) 330; R v Nur, 2013 ONCA 677, 117 OR (3d) 401 (for case history).

(5.)Nur, supra note 1 at paras 27-36. See also R v Charles, 2010 ONSC 8035, 102 WCB (2d) 441; R v Charles, 2013 ONCA 681, 117 OR (3d) 456 (for case history).

(6.)Nur, supra note 1 at para 48.

(7.)Ibid at para 51.

(8.)R v Smith, [1987] 1 SCR 1045, 40 DLR (4th) 435 [Smith].

(9.)Charter, supra note 2, s 12.

(10.)R v Ferguson, 2008 SCC 6 at para 14, [2008] 1 SCR 96 [Ferguson].

(11.)Ibid; Smith, supra note 8 at 1072-73; Nur, supra note 1 at para 39; R v Latimer, 2001 SCC 1 at para 76, [2001] 1 SCR 3.

(12.)Smith, supra note 8 at 1056, 1078; R v Goltz, [1991] 3 SCR 485 at 505-506, 67 CCC (3d) 481 [Goltz]; R v Morrisey, 2000 SCC 39, [2000] 2 SCR 90 [Morrisey]; Nur, supra note 1 at para 51.

(13.)Smith, supra note 8.

(14.)Nur, supra note 1 at paras 74-75; Goltz, supra note 12 at 516.

(15.)Nur, supra note 1 at paras 79-80.

(16.)Ibid at para 81.

(17.)Ibid at para 83.

(18.)Ibid at para 85.

(19.)Ibid at para 130 [emphasis in original].

(20.)Ibid at paras 125, 129.

(21.)Ibid at para 149 [emphasis in original].

(22.)Ibid at paras 161, 170, 174.

(23.)Ibid at paras 126-27.

(24.)Ibid at para 94.

(25.)Criminal Code, supra note 3, s 718.

(26.)Ibid, s 718.

(27.)Ibid, s 718.2.

(28.)Ibid, s 718.1.

(29.)R v Ipeelee, 2012 SCC 13 at para 37, [2012] 1 SCR 433 [Ipeelee].

(30.)R v Nasogaluak, 2010 SCC 6 at para 42, [2010] SCR 206 [Nasogaluak].

(31.)A full discussion of penal philosophy is beyond the scope of this paper; this essay describes these theories only briefly in order to facilitate the rest of the discussion.

(32.)See Andrew von Hirsch & Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford: Oxford University Press, 2005) at 14-17 (for critiques of empirical evidence and concerns about treating offenders as moral agents); RA Duff & David Garland, eds, A Reader on Punishment (Oxford: Oxford University Press, 1994) at 6-16 (for a review of the decline of consequentialism); N Walker, "Reductivism and Deterrence" in Duff & Garland (ibid at 212) (for a defence of consequentialist theory).

(33.)See Andrew von Hirsch, "Proportionality in the Philosophy of Punishment" (1992) 16 Crime & Justice 55 at 59 (von Hirsch sets out the Kantian challenge to utilitarian theories of punishment and Hart's gloss focusing on rational agency as a justification for punishment).

(34.)Nasogaluak, supra note 30 at para 49. See also R v M (CA), [1996] 1 SCR 500 at para 81, 105 CCC (3d) 327 [M (CA)].

(35.)RA Duff, Punishment, Communication and Community (Oxford: Oxford University Press, 2001) at 142. Contra von Hirsch & Ashworth, supra note 32 at 94-107 (the authors argue that Duff's offender-centric approach dilutes punishment's public character to individual moral coercion; they argue for a more restricted communicative concern for preventing harmful conduct).

(36.)See Kent Roach, "Searching for Smith: The Constitutionality of Mandatory Sentences" (2001) 39 Osgoode Hall LJ 367 at 371 [Roach, "Mandatory Sentences"] (for a discussion of gravity as a function of the elements of the offence).

(37.)Ipeelee, supra note 29 at para 73; R v Anderson, 2014 SCC 41 at paras 21-22, [2014] 2 SCR 167 [Anderson].

(38.)Criminal Code, supra note 3, ss 718.1, 718.2(a).

(39.)Ipeelee, supra note 29 at para 87; Anderson, supra note 37 at para 24.

(40.)Ipeelee, supra note 29 at para 70.

(41.)Nasogaluak, supra note 30 at para 43.

(42.)Nur, supra note 1 at para 42.

(43.)Ipeelee, supra note 29 at para 37.

(44.)Morris J Fish, "An Eye for an Eye: Proportionality as a Moral Principle of Punishment" (2008) 28:1 Oxford J Leg Stud 57 at 67.

(45.)David M Beatty, "Proportionality" in The Ultimate Rule of Law (Oxford: Oxford University Press, 2004) at 170. Beatty is rhapsodic in his defence of proportionality as a legal answer to controversial social, political, and ethical questions.

(46.)Some theorists understand proportionality as a kind of yardstick that informs and bounds the judicial sentencing determination, giving it an empirical component if not an empirical definition. See Allan Manson, "The Conditional Sentence: A Canadian Approach to Sentencing Reform, or Doing the Time Warp Again" (2001) 44 Crim LQ 375 at 381-85.

(47.)As McLachlin CJC affirmed in Safarzadeh-Markhali, however, the principles and purposes of sentencing are neither constitutional nor sacrosanct. Parliament can change these principles provided that the changes do not require judges to impose grossly disproportionate sentences. Although the principle of proportionality in sentencing is "grounded in elemental notions of justice and fairness, and is indispensable to the public's confidence in the justice system" the sole constitutional dimension of proportionality is the section 12 limit on grossly disproportionate sentences. This means that proportionality in the sentencing process is not a constitutional right in the sense of a defined set of considerations that judges must consider in imposing punishment. What McLachlin CJC does not say, however, is that the sentencing process itself can be abrogated by Parliament or that Parliament can circumvent the judicial reasoning process. The limit on Parliamentary intervention is amending the considerations that judges can take into account in sentencing. This suggests that there remains something unique about the judicial sentencing process itself. As I argue in this paper, it is the reasoning process that gives sentencing its moral justification. See R v Safarzadeh-Markhali, 2016 SCC 14 at paras 70-71, 396 DLR (4th) 575.

(48.)Andrew Ashworth, Sentencing and Criminal Justice, 6th ed (Cambridge: Cambridge University Press, 2015) at 82 [Ashworth, 6th ed]; Andrew Ashworth, Sentencing and Criminal Justice, 5th ed (Cambridge: Cambridge University Press, 2010) at 47-48.

(49.)Ibid at 45, 47.

(50.)See Allan Manson, "Arbitrary Disproportionality: A New Charter Standard for Measuring the Constitutionality of Mandatory Minimum Sentences" (2012) 57 SCLR (2d) 173 (for a discussion of how the Supreme Court's jurisprudence on mandatory minimum penalties in Smith has moved away from considerations of arbitrariness under section 12 of the Charter, rather than mere disproportionality, and Manson's argument in favour of a Charter standard of arbitrary disproportionality in assessing the constitutionality of mandatory minimum penalties).

(51.)Nasogaluak, supra note 30 at para 45.

(52.)See Benjamin L Berger, "A More Lasting Comfort? The Politics of Minimum Sentences, the Rule of Law and R v Ferguson", online: (2009) 47:2 SCLR 101 at 112 <www.ssrn.com> [Berger, "Lasting Comfort"] (Berger critiques the bluntness of Canadian mandatory minimum penalties and argues that cruel and unusual punishment is not an anomolous result, but a flaw in the character of the law itself).

(53.)See also Anthony N Doob & Carla Cesaroni, "The Political Attractiveness of Mandatory Minimum Sentences" (2001) 39:2-3 Osgoode Hall LJ 287 at 288 (for an examination of why mandatory minimum penalties persist in Canadian law in the face of longstanding cynicism about their effectiveness in respect of crime control).

(54.)See e.g. Anthony N Doob & Cheryl Marie Webster, "Sentence Severity and Crime: Accepting the Null Hypothesis", online: (2003) 30 Crime & Justice 143 <www.ncjrs.gov> (where Doob and Webster argue that the evidence against the deterrent power of mandatory minimum sentences is sufficiently strong to warrant a conclusion that sentences have no deterrent effect whatsoever).

(55.)Michael H Tonry, "The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings", online: (2009) 38:1 Crime & Justice 65 at 102 <www.ncjrs.gov> [Tonry, "Mandatory Penalties"].

(56.)See Doob & Cesaroni, supra note 53 at 291. As of January 2015, there were twenty-nine Criminal Code offences imposing mandatory minimum penalties of imprisonment, and new proposals are brought forward annually. See "Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models" (7 January 2015), Department of Justice, online: Canada's System of Justice <www.justice.gc.ca>.

(57.)See Michael Tonry, Punishment and Politics: Evidence and Emulation in the Making of English Crime Control Policy (Devon: Willan, 2004) at 86; Tonry, "Mandatory Penalties", supra note 55 at 103.

(58.)Gerry Ferguson & Benjamin Berger, "Recent Developments in Canadian Criminal Law" (2013) 37 Crim LJ 315 at 315.

(59.)Tonry, "Mandatory Penalties", supra note 55 at 101.

(60.)Berger, "Lasting Comfort", supra note 52 at 108.

(61.) Tackling Violent Crime Act, SC 2008, c 6.

(62.)Nur, supra note 1 at para 13.

(63.)See Doob & Webster, supra note 54 at 187.

(64.)Tonry, "Mandatory Penalties", supra note 55 at 93.

(65.)See generally Doob & Webster, supra note 54; Doob & Cesaroni, supra note 53; Tonry, "Mandatory Penalties", supra note 55.

(66.)Doob & Webster, supra note 54 at 189.

(67.)See Anthony Bottoms & Andrew von Hirsch, "The Crime-Preventive Impact of Penal Sanctions" in Peter Cane & Herbert M Kritzer, eds, The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010) 96 at 104. See also Doob & Webster, supra note 54 at 144.

(68.)See Doob & Webster, supra note 54 at 144.

(69.)Ibid at 191.

(70.)Ibid.

(71.)See e.g. Morrisey, supra note 12 at para 54 (the Supreme Court affirmed the particular importance of deterrence in the context of the inherent risks and responsibilities associated with firearms); Nur, supra note 1 (the majority recognized a rational connection between mandatory minimum penalties and deterrence even while critiquing its fragility).

(72.)See Doob & Webster, supra note 54 at 158-59.

(73.)See Bottoms & von Hirsch, supra note 67 at 105.

(74.)See Ashworth, 6th ed, supra note 48 at 85.

(75.)R v Lacasse, 2015 SCC 64 at para 73, [2015] 3 SCR 1089 (Wagner J) [Lacasse].

(76.)M (CA), supra note 34 at para 81.

(77.)See Roach, "Mandatory Sentences", supra note 36 at 397.

(78.)Tonry, "Mandatory Penalties", supra note 55 at 67.

(79.)Ibid [footnotes omitted].

(80.)Joel Feinberg, "The Expressive Function of Punishment" in Duff & Garland, supra note 32 at 74.

(81.)Ibid at 80. Feinberg offers speaking for the community, vindicating the law, and absolving others as possibilities.

(82.)The absence of a common measure to structure scales of crimes and sentences is a problem in this regard. However, some theorists have posited ways to account for the severity of an offence, including through an account of harm. See Malcolm Thorburn & Allan Manson, "The Sentencing Theory Debate: Convergence in Outcomes, Divergence in Reasoning" (2007) 10:2 New Crim L Rev 278 (for a brief summary of this attempt and some critiques of its practical and normative viability).

(83.)Some argue that the courts should consider the offender's degree of responsibility apart from the gravity of the offence and incorporate a concept of collective responsibility that considers social, economic, and political antecedents of crime. This kind of open-textured approach to moral blame would significantly impact proportionality assessments. See e.g. Marie-Eve Sylvestre, "The (Re)Discovery of the Proportionality Principle in Sentencing in Ipeelee: Constitutionalization and the Emergence of Collective Responsibility" (2013) 63 SCLR (2d) 461.

(84.)See Julian V Roberts, "Mandatory Minimum Sentences of Imprisonment: Exploring the Consequences for the Sentencing Process" (2001) 39:2-3 Osgoode Hall LJ 305 at 314-19.

(85.)See Roach, "Mandatory Sentences", supra note 36 at 401.

(86.)Roberts, supra note 84 at 315.

(87.)Ibid at 322.

(88.)Ibid at 317.

(89.)Criminal Code, supra note 3, s 236.

(90.)Roberts, supra note 84 at 318 [footnotes omitted].

(91.)Lacasse, supra note 75 at para 3.

(92.)Other jurisdictions have recognized the dangers of structuring sentencing in either a legislative or judicial vacuum. The problem of public legitimacy in England and Wales has been recognized and addressed in part by public involvement in the creation of sentencing guidelines. Some commentators describe how the process of generating sentencing guidelines came to be viewed as a public policy function that is more properly a multidisciplinary enterprise than a strict judicial purview. They also allow for judicial discretion within a step-by-step framework in recognition of the fact that sentencing is not simply a mathematical exercise. Moreover, the guidelines are regularly revised following periodic consultations, which enables their continuing legitimacy. See Andrew Ashworth & Julian V Roberts, "The Origins and Nature of Sentencing Guidelines in England and Wales" in Andrew Ashworth & Julian V Roberts, eds, Sentencing Guidelines: Exploring the English Model (Oxford: Oxford University Press, 2013) 31 at 1-14.

(93.)See Debra Parkes, "From Smith to Smickle: The Charter's Minimal Impact on Mandatory Minimum Sentences" (2012) 57 SCLR (2d) 149 at 151.

(94.)See Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Cambridge, Mass: Harvard University Press, 1996) at 74 (Dworkin argues judges can discern correct answers to constitutional questions through interpretive adjudication); contra Jeremy Waldron, "The Core of the Case Against Judicial Review" (2006) 115 Yale LJ 1346 at 1350.

(95.)See Peter W Hogg & Allison A Bushell, "The Charter Dialogue Between Courts and Legislatures" (1997) 35:1 Osgoode Hall LJ 75; Peter W Hogg, Allison A Bushell Thornton & Wade K Wright, "Charter Dialogue Revisited--Or 'Much Ado About Methaphors'" (2007) 45:1 Osgoode Hall Law J1 at 5.

(96.)Hogg & Bushell, supra note 95 at 79 80.

(97.)Ibid at 81.

(98.)See Ronald Dworkin, Justice in Robes (Cambridge, Mass: Harvard University Press, 2006) at 6.

(99.)See Hogg, Thornton & Wright, supra note 95 at 3.

(100.)Vriend v Alberta, [1998] 1 SCR 493 at 566, 156 DLR (4th) 385.

(101.)See Hogg, Thornton & Wright, supra note 95 at 4 (the authors acknowledge that they overstated their initial thesis that dialogue blocks the anti-majoritarian objection).

(102.)See Grant Huscroft, "Rationalizing Judicial Power: The Mischief of Dialogue Theory" in James B Kelly & Christopher P Manfredi, eds, Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms (Vancouver: UBC Press, 2009) 50.

(103.)Grant Huscroft, "Constitutionalism from the Top Down" (2007) 45:1 Osgoode Hall LJ 91 at 92 [Huscroft, "Top Down"].

(104.)Hogg, Thornton & Wright, supra note 95 at 8.

(105.)Huscroft, "Top Down", supra note 103 at 95.

(106.)See Hogg, Thornton & Wright, supra note 95 at 32 (the authors contend that dialogue theory presumes judicial finality on constitutional interpretation rather than correctness but that the practical difference is dubious).

(107.)Christopher P Manfredi, "The Day the Dialogue Died: A Comment on Sauve v Canada" (2007) 45:1 Osgoode Hall LJ 105.

(108.)2002 SCC 68, [2002] 3 SCR 519 [Sauve 2].

(109.)Sauve v Canada (Attorney General), [1993] 2 SCR 438, 153 NR 242 [Sauve 1].

(110.) Sauve 2, supra note 108 at para 17.

(111.)Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 36, [2003] 3 SCR 3.

(112.)R v Oakes, [1986] 1 SCR 103 at para 64, 50 OR (2d) 719.

(113.)Sauve 2, supra note 108 at para 16.

(114.)Ibid at para 23.

(115.)Manfredi, supra note 107 at 119.

(116.)Huscroft, "Top Down", supra note 103 at 95.

(117.)Waldron, supra note 94 at 1367.

(118.)Ibid at 1391.

(119.)There are many justificatory theories for strong judicial review beyond dialogue. For example, Lord Coke's dictum that the common law is the perfection of reason offers one possible theoretical basis for judicial primacy. Other theorists, such as Mark Elliott, frame judicial review as a means of preserving the fundamental architecture of the Constitution in conjunction with a way that is cognizant of government's unique position and ensures good governance. Others have a structural approach. For example, dialogue theory itself is premised on the explicit design of the Canadian Constitution, which gives judges the authority for judicial review while reserving ultimate power for Parliament in the form of the notwithstanding clause. All such theories provide possible arguments for judicial primacy and might prove adequate defences in themselves if developed by the case law. The important point, however, is that any cogent justification for the exercise of strong judicial discretion is inevitably linked to a normative foundation for its authority. My thesis claims that the Canadian approach is not adequately moored to a larger story of judicial power. This paper does not claim that a process-based understanding of proportionality is the only possible justification for an assertion of judicial power in sentencing. Rather, I argue that proportionality as a process is a latent theory in the existing Canadian jurisprudence that, properly expounded, provides a moral justification for an otherwise controversial exercise of discretion.

(120.)The Court struck down only one mandatory minimum penalty under section 12 of the Charter prior to Nur. See Kent Roach, "The Charter Versus the Government's Crime Agenda" (2012) 58 SCLR (2d) 211 at 218-19 (for a survey of the Court's historical approach). See also R v Lloyd, 2016 SCC 13, 334 CCC (3d) 20 [Lloyd] (a divided court struck down a third mandatory minimum penalty for drug trafficking on the basis of another "reasonable hypothetical").

(121.)Goltz, supra note 12; Morrisey, supra note 12.

(122.)Ferguson, supra note 10 at para 38.

(123.)Ibid at paras 45-51.

(124.)Ibid at para 54.

(125.)Ibid at para 73.

(126.)Ibid at para 67.

(127.)Ibid at para 69.

(128.)Ibid at para 51.

(129.)Notably, the government enacted the Nur penalties when judges did have this option, which might explain why there was no additional legislated judicial safety valve.

(130.)Loraine Gelsthorpe & Nicola Padfield, eds, Exercising Discretion: Decision-Making in the Criminal Justice System and Beyond (Devon, UK: Willan, 2003) at 1.

(131.)Ibid.

(132.)Ashworth, 6th ed, supra note 48 at 18-19.

(133.)Ipeelee, supra note 29 at para 86.

(134.)Lacasse, supra note 75 at paras 1, 12.

(135.)Ibid at para 40, citing R v Shropshire, [1995] 4 SCR 227, 129 DLR (4th) 657.

(136.)Krieger v Law Society of Alberta, 2002 SCC 65 at para 46, [2002] 3 SCR 372 [Krieger].

(137.)See Stephanos Bibas, "Plea Bargaining Outside the Shadow of Trial" (2004) 117:8 Harv L Rev 2464 at 2475, n 35; Tonry, "Mandatory Penalties", supra note 55 at 101.

(138.)See David Bjerk, "Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion Under Mandatory Minimum Sentencing" (2005) 48:2 JL & Econ 591 at 606-609.

(139.)Nur, supra note 1 at para 178, Moldaver J.

(140.)Ibid [footnotes omitted].

(141.)Krieger, supra note 136 at para 32.

(142.)Anderson, supra note 37 at para 37.

(143.)Krieger, supra note 136 at para 32.

(144.)Anderson, supra note 37 at para 37. See also Ontario, Ministry of Attorney General, Role of the Crown: Preamble to the Crown Policy Manual (Toronto: MAG, 21 March 2005), online: <www.attorneygeneral.jus.gov.on.ca>.

(145.)R v Boucher, [1955] SCR 16 at 23-24, 110 CCC 263, Rand J.

(146.)R v Logiacco (1984), 11 CCC (3d) 374, 2 OCA 177 (ONCA), Cory J.

(147.)Anderson, supra note 37 at paras 45, 50, 55.

(148.)Ibid at para 37.

(149.)See Michael Code, "Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg" (2009) 34 Queen's LJ 863 at 874.

(150.)Ibid.

(151.)Anderson, supra note 37 at paras 37, 46 (counterexamples to this largely common law assumption about the importance of Crown discretion include civil jurisdictions like Germany that function without giving prosecutors strong discretion in determining when and how to proceed).

(152.)David Vanek, "Prosecutorial Discretion" (1987-88) 30 Crim LQ 219 at 220.

(153.)Certainly, this is the case in the selection of and pursuit of charges, but also in the conduct of the prosecution with respect to what evidence is led in relation to aggravating factors.

(154.)See "Legal Aid in Canada" (14 July 2015), online: The Canadian Bar Association <www.cba.org> (for a summary of funding and access to justice issues in respect of legal aid).

(155.)Lacasse, supra note 75 at para 11.

(156.)Beatty, supra note 45 at 159.

(157.)Nur, supra note 1 at para 95.

(158.)R v Cook, [1997] 1 SCR 1113 at para 21, 188 NBR (2d) 161.

(159.)Anderson, supra note 37 at para 37.

(160.)See Bibas, supra note 137 at 2475.

(161.)See Penny Darbyshire, "The Mischief of Plea Bargaining and Sentencing Rewards" (2000) Crim L Rev 895 at 905-906 (for a discussion of some associated dangers).

(162.)Criminal Code, supra note 3, s 718.2. See also R v Gardiner, [1982] 2 SCR 368 at 416,140 DLR (3d) 612 (the mitigating effect of a guilty plea is undefined in Canadian law, but reflects administrative savings, the degree to which it spares victims the trauma of trial, and its relationship with remorse).

(163.)See Bibas, supra note 137 at 2476-77. Bibas also notes that defense attorneys are motivated by pressures and incentives that may not align with the accused's interests.

(164.)See Joan Brockman, "An Offer You Can't Refuse: Pleading Guilty When Innocent" (2010) 56 Crim LQ 116 at 119-22, 128, 130; Kate Stith, "The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion" (2008) 117 Yale LJ 1420 at 1425, 1430 (reflecting on the effects of American sentencing guidelines, Stith calls the prosecutorial ability to determine sentencing without the counterbalancing factor of judicial discretion an "indecent power" at 1424).

(165.)John H Langbein, "Torture and Plea Bargaining" (1978) 46:1 U Chicago L Rev 3 at 14.

(166.)Ibid at 12-16.

(167.)See e.g. Brockman, supra note 164. See also Berger, "Lasting Comfort", supra note 52 at 110 11.

(168.)Nur, supra note 1 at para 96.

(169.)See generally Brockman, supra note 164 (canvassing many factors that can influence decision-making, including personal agency and systemic factors). My discussion focuses only on how a mandatory minimum penalty impacts the calculus and assumes that these factors are always present.

(170.)There is a point where degree crosses into principle. For example, where an offender risked the death penalty on conviction for a minor offence, we might conclude that the penalty actually created the harm. The logical disambiguation here focuses on issues at stake in the normal course of sentencing that involves degrees of ordinary quantum and risk, rather than extraordinary threats to life.

(171.)See Langbein, supra note 165 at 21 (for a summary of the bundle of procedural rights and values that are sacrificed by plea-bargaining).

(172.)Increasing convictions within the system are problematic if minorities are disproportionately targeted and charged. See e.g. Ipeelee, supra note 29 at paras 56-63, LeBel J (for a summary of the effects on Canadian Aboriginal communities). See also Brockman, supra note 164 at 128 (in terms of plea rates, Brockman argues that accused persons are more likely to plead with increased incentives, whether or not they are guilty). But see Tonry, Punishment and Politics, supra note 57 at 74-75, 86-88 (Tonry argues that minorities are less likely to plead guilty given their distrust in the system, resulting in harsher ultimate sentences, but also argues that mandatory minimum penalties aggravate minority overrepresentation in prisons through long sentences for crimes that are disproportionately committed by minority groups).

(173.)See Brockman, supra note 164 at 126-27.

(174.)See e.g. Langbein, supra note 165 at 21. Langbein is critical of the adversarial process as a whole, noting that conviction is very difficult when accused persons exercise their panoply of rights. He sees plea-bargaining as a negative reaction to this unduly high standard, which then creates unduly strong incentives to plead. See also Brockman, supra note 164 at 127-34 (for potential reforms); Darbyshire, supra note 161.

(175.)Nur, supra note 1 at para 96.

(176.)See Mark Elliott, "Justification, Calibration and Substantive Judicial Review: Putting Doctrine in its Place", online: (2013) University of Cambridge Faculty of Law Working Paper No 33/2013 <www.ssrn.com> (describing the whole realm of public law as a "culture of justification", such that the particular reasons offered for judicial review are necessarily tied to the normative bases for that authority).

(177.)I believe this thesis can be generalized beyond the Canadian context, but for the purposes of this paper, I have considered proportionality through the distinct lens of Canadian law, as illustrated by Nur.

(178.)See Beatty, supra note 45 at 170; von Hirsch supra note 33 at 75-79, 93. Von Hirsch recognizes that proportionality is a vital aspect of justice but provides no unique solutions to the problems of punishment, and particularly not to those that involve questions of quantum.

(179.)See e.g. von Hirsch, supra note 33 at 93. This is true even of defences on the basis that proportionality only operates intra-systemically, since it privileges judicial determination of the systemic constraints.

(180.)Anderson, supra note 37 at para 25 [emphasis in original].

(181.)See Palma Paciocco, "Proportionality, Discretion, and the Roles of Judges and Prosecutors at Sentencing" (2014) 18 Can Crim L Rev 241 at 253-57 (Paciocco argues that ethical requirements dictate that prosecutors should consider proportionality in exercising their discretion in a way that engages a mandatory minimum sentence).

(182.)Nur, supra note 1 at para 87.

(183.)A practical requirement in the sense that the judge must ultimately impose punishment.

(184.)Thorburn and Mason similarly argue that the judge's obligation to provide a public articulation of the state's justification for punishment grounds their authority to impose sentences. See Thorburn & Manson, supra note 82 at 302.

(185.)Ipeelee, supra note 29 at para 73.

(186.)See Benjamin L Berger, "A Due Measure of Fear in Criminal Judgment" (2008) 41 SCLR 161, online: <www.ssrn.com> (for a discussion of some features of Canadian law that reflect judicial techniques for "moral comfort" in punishment).

(187.)Thomas Nagel, "Toleration" in Equality and Partiality (Oxford: Oxford University Press, 1995; Oxford Scholarship Online, 2003) at 159.

(188.)Lacasse, supra note 75 at paras 17-22, 29. See also R c Lacasse, 2013 CanLII 11960 (QCCQ), 2013 CarswellQue 10490 (WL Can); R c Lacasse, 2014 QCCA 1061, 117 WCB (2d) 535 (for case history).

(189.)Ibid at paras 26-28.

(190.)Ibid at paras 30-34.

(191.)Ibid at para 58.

(192.)Ibid at para 53.

(193.)Nagel, supra note 187 at 159.

(194.)See Kyron Huigens, "Dignity and Desert in Punishment Theory" (2003) 27:1 Harv JL & Pub Pol'y 33 at 45.

(195.)Lacasse, supra note 75 at para 123.

(196.)Ibid at para 128.

(197.)Ibid at para 140 [emphasis added].

(198.)Ibid at para 143.

(199.)Ibid at para 141.

(200.)See Malcolm Thorburn, "Justifications, Powers, and Authority" (2008) 117 Yale LJ 1070 (for an examination of justified power and authority, the problems of discretion, and the courts' role in supervising decision-making). See also Huigens, supra note 194 (for a discussion of the distinction between a legal and moral justification).

(201.)If I am correct that the sentencing process is both integral to and constitutive of moral sentences, this theory has clear implications for the many mandatory minimum penalties that have been declared constitutional to date, such as that for murder in section 235 of the Criminal Code. My theory implies that those sentences, while perhaps both deserved and just on a desert rationale, are nevertheless not fully moral and should be declared unconstitutional. One possibility is that, as McLachlin CJC contemplated in Nur, the elements of these offences, like murder, may be sufficiently circumscribed so as to provide the kind of reasons that I have argued are constitutive of moral punishment in and of themselves. See generally Nur, supra note 1. In those limited cases, finding that the offender's actions satisfy the elements of the offence may depend on the type of judicial reasons that in turn require the stipulated punishment. While possible, another more unsettling possibility is to concede that the value of the judicial sentencing process is inevitably in tension with the structure of mandatory minimum penalties. Fully moral punishment in criminal sentencing may preclude mandatory penalties of any kind. And if this is true, then the Supreme Court's need for a justificatory theory in circumstances where a punishment accords generally with desert theory, but not necessarily with morality, is even more pressing.

(202.)See e.g. Mark Elliott, "Judicial Review's Scope, Foundations and Purposes: Joining the Dots", online: (2012) University of Cambridge Faculty of Law Working Paper No 3/2012 at 2-4 <www.ssrn.com> (Elliot explains that preventing the abuse of power, controlling the abuse of public power, and controlling monopoly of power are inadequate bases for strong judicial review--he posits three interlocking purposes as an alternative justification: compliance with the rule of law and respect for the architecture of the Constitution; the uniqueness of the government's position and its obligation to act in the public interest; and ensuring public interest in good governance).

(203.)Nur, supra note 1 at para 117.

(204.)Ibid at paras 135-44.

(205.)Coroners and Justice Act, 2009 (UK), c 25, s 121(3).

(206.)Nur, supra note 1 at para 44 [emphasis added].

(207.)Ipeelee, supra note 29 at para 70.

(208.)The majority of the Supreme Court held that Parliament could only continue to enact mandatory penalties by narrowly circumscribing the targeted conduct or by giving judges residual discretion. Although the legislature could decide the appropriate parameters of that residual discretion, the relevant discretion must be judicial. See Lloyd, supra note 120 at paras 35-36.

(209.)See e.g. Tonry, "Mandatory Penalties", supra note 55 at 103.

(210.)Ibid at 103.

(211.)See generally Crown Prosecution Office, "CPS Prosecution Policy and Guidance: Mandatory and Minimum Custodial Sentences", Crown Prosecution Office, online: <www.cps.gov.uk>.

(212.)Criminal Justice Act, 2003 (UK), c 44, s 287 [Criminal Justice Act].

(213.)Crown Prosecution Office, supra note 211, citing R v Rehman; R v Wood, [2006] 1 Cr App R (S) 77 CA, [2005] EWCA Crim 2056 (2006).

(214.)Ibid, citing R v Shaw, [2011] 2 Cr App R (S) 65 CA, [2011] EWCA Crim 167.

(215.)Criminal Justice Act, supra note 212, ss 170, 172.

(216.)For a discussion on the development, see Nicola Padfield, "Exploring the Success of Sentencing Guidelines" in Ashworth & Roberts, supra note 92 at 31.

(217.)Sentencing Council, "About Guidelines", Sentencing Council, online: <www.sentencing-council.org.uk>.

(218.)See Padfield, supra note 216 at 32. See also Coroners and Justice Act, supra note 205, ss 118-36.

(219.)See Padfield, supra note 216 at 46-51.

(220.)See also Roberts, supra note 84 at 325-27 (advocating a permanent sentencing commission for this task).

(221.)See Ashworth, 6th ed, supra note 48 at 26-27.

(222.)See generally Padfield, supra note 216.

(223.)Ibid at 33-34.

(224.)This line and the appropriate discount are a matter of current debate in England and Wales.

(225.)I have not found this option canvassed in the literature but there are examples of other attempts to impose internal constraints on prosecutorial discretion. See e.g. Stith, supra note 164 at 1441 (for a description of administrative efforts in the American context to direct prosecutors to pursue the most severe charge possible).
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