Abstract
The use of the reasonable hypothetical device in the section 12 context has been a source of unceasing controversy. The Supreme Court has tried to lay the debate to rest; but we argue that there are convincing and practical reasons for the use of hypotheticals which the Court could do more to explain, as a way to persuade skeptics. These reasons are tied to the realities of the criminal justice system and how mandatory penalties can shape penal outcomes in covert ways, apart from, and in addition to, delivering cruel and unusual punishment to individuals. Along with articulating this new justification for reasonable hypotheticals, we also identify organizing principles guiding their construction that are equally grounded in the realities of our criminal law. Rule #1 is that, given how the law has evolved, personal mitigating characteristics are now clearly proper components of a hypothetical scenario, such that longstanding debate on this issue should come to an end. Our second rule calls for greater restraint. Rule #2 is that the hypothetical commission of the offence should generally involve scenarios that have close analogues in the jurisprudence, and, when departing from the jurisprudence, should not involve the coincidence of multiple discrete events. Novel hypotheticals should be straightforward scenarios, not a collection of discrete events that only amount to a crime once spun together. We argue that these two rules would help to clarify and stabilize the law in this area. These rules would also help to show critics that the proper construction of reasonable hypotheticals is not a judicial game of “make- believe”. Rather, considering the reasonably foreseeable applications of a law entails ordinary judicial activity, including the use of expert evidence, statutory interpretation, and judicial notice.
Citation Information
Kerr, Lisa and Perlin, Michael.
"A New Justification for Section 12 Hypotheticals andTwo Rules for Constructing Them."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
5.
().
DOI: https://doi.org/10.60082/2563-8505.1466
https://digitalcommons.osgoode.yorku.ca/sclr/vol5/iss1/8
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