Hypothetical defences

The country’s top court is deciding whether pretend people can help defend real crimes.

Driving the news: The Supreme Court will rule on a case that carries far-reaching implications for how Canada’s justice system treats the use of make-believe scenarios to strike down mandatory minimum sentences for crimes, per The Globe and Mail

  • Mandatory sentences have been successfully overturned, using hypothetical people to assess whether a sentence could be considered “cruel and unusual.”

The case involves a man who shot bullets into a home, for which the minimum is four years. While his lawyers didn’t dispute the sentence as cruel and unusual us his case, they used a made-up young person who’d shot a BB gun at a house to reduce his sentence to 3.5 years.

Why it matters: Mandatory minimum sentences are widely controversial, but so is the use of hypothetical scenarios to eliminate them. The government has repealed ~20 mandatory minimums, but depending on the ruling, a new government could move to reintroduce them. 

Bottom line: In any case, the decision may at least create a national standard. The Globe’s Sean Fine writes: “So many mandatory minimums have been struck down in various jurisdictions across the country that Canada now has a patchwork of sentencing provisions.”