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Canadian Criminal Law Review


Judges; Criminal procedure; Judicial discretion; Public prosecutors


The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing disproportionate mandatory minimums. Its best avenue for doing so is to reconceive of the s. 12 Charter standard for cruel and unusual punishment as it applies to mandatory minimums. Furthermore, although prosecutors are not constitutionally obligated to consider proportionality when exercising their discretion, they are ethically bound to do so.

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