Welcome to Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! This week, lawyer Kyla Lee discusses whether mandatory minimum sentencing for sexual exploitation violates s. 12 of the Charter.
Acumen Law Corporation lawyer Kyla Lee gives her take on a made-in-Canada court case each week and discusses why these cases should have been heard by Canada’s highest court: the Supreme Court of Canada.
In Alberta, the court had to consider whether or not the mandatory minimum penalty for sexual exploitation was cruel and unusual punishment. The Alberta court of queens bench found that it was and that the mandatory minimum violated s. 12 of the Charter and struck it down.
The Alberta Court of Appeal determined that the mandatory minimum did not violate s.12 of the Charter and they looked specifically at what is called the reasonable hypothetical that was advanced in the case.
Often times when challenging a reasonable minimum, a reasonable hypothetical in place of the circumstances of the accused needs to be advanced. The question then becomes whether or not the reasonable hypothetical is in fact reasonable. This means that you can imagine a scenario where somebody could end up charged with the offence on the basis of the law as it’s written, where the mandatory minimum might not be appropriate.
The Supreme Court of Canada has considered a number of mandatory minimum penalties that have been imposed under the previous federal government. Oftentimes in these cases, the SCC has found that the mandatory minimums violate s. 12 of the Charter because they constitute cruel and unusual punishment.
Watch the video for more.