Searching for Smith: The Constitutionality of Mandatory Sentences

The jurisprudence of the Supreme Court of Canada on the constitutionality of mandatory minimum sentences, from R. v. Smith to R. v. Latimer, is reviewed and assessed in light of relevant developments in constitutional law and sentencing. These include the Supreme Courts increasing interest in constitutional minimalism and corresponding reluctance to rely on hypothetical offenders and facial declarations of invalidity. The manner in which the Court\u27s increasing concern for crime victims and fault levels has been used to justify upholding mandatory sentences is examined. The author also relates this jurisprudence to trends in sentencing, including an increasing acceptance of mandatory sentences as deserved punishment relative to the fault of offenders. Also explored is the possibility that the Court\u27s decision to uphold mandatory penalties as not being grossly disproportionate may require a ratcheting up of the sentencing tariff to maintain ordinal proportionality. The impact of enacting mandatory minimum sentences on the Court\u27s dichotomy between the punitive and restorative purposes of sentencing is also addressed. Finally, the author concludes that the Supreme Court has abandoned many of the premises of Smith giving Parliament the dominant role in deciding whether to enact mandatory minimum sentences. The author argues that a return to the activism of Smith would produce a strong judicial voice in favour of individualized punishment utile not providing the final word in dialogues between the Court and Parliament on the subject of punishment