You might get a pretty good discussion going in most living rooms about whether it is “cruel and unusual” to sentence someone to a minimum three years for using a loaded, prohibited firearm in a first offense But it wouldn’t matter what the armchair debate decided. That’s because the Supreme Court of Canada, by a majority of 6 to 3, does not like the idea. The Ontario Court of Appeal had previously found the notion “cruel and unusual”. So did the SCOC. It is an interesting matter because it is one where the Justices are bringing to bear personal opinion about what’s unusual and what’s cruel. There isn’t much factual precedent for this type of rumination. It’s just what you happen to believe. In this, case, the majority, led by Chief Justice Beverely McLachlin said the minimum terms would be fair in most cases, but would be grossly disproportionate in “reasonably foreseeable” cases that amounted to no more than licensing infractions, rather than serious crimes. The minority said that basing a law’s constitutionality on hypothetical cases that have never happened lacks common sense.
