François Tanguay-Renaud (York University — Osgoode Hall Law School) and Vincent Chiao (University of Toronto — Faculty of Law) have posted Unreasonably Hypothetical: What’s Wrong with Section 12, forthcoming in the McGill Law Journal, on SSRN. Here is the abstract:
The appropriateness of using reasonable hypotheticals to review sentencing legislation under section 12 of the Charter has become settled orthodoxy amongst Canadian courts and legal scholars, with the Supreme Court leading the way. This article argues that this conventional wisdom is wrong for four main reasons. Such use of reasonable hypotheticals: (i) rests on the mistaken assumption that the proportionality of punishment can largely be determined, in isolation, by applying general principles to the facts of a given case, real or imagined; (ii) is inconsistent with the Supreme Court’s otherwise individualized approach to sentencing; (iii) bypasses traditional public law standing requirements and implausibly assumes the infallibility of courts; and (iv) infringes the separation of powers by encroaching on both Parliament’s authority to set penal policy and the prosecutorial discretion traditionally afforded to the executive. The article concludes by proposing, as a way forward, an alternative holistic approach to sentencing and its constitutional review.