| dc.description.abstract | Mandatory minimum sentences present a host of issues for criminal law and policy. The most fundamental of these is that they preclude judges from delivering just sentences in light of case-specific factors. In Canada, the Supreme Court has grappled with this issue through the Canadian Charter of Rights and Freedoms’ section 12, which establishes the right not to be subject to cruel and unusual punishment. Through the progression of section 12 jurisprudence, the Court has exhibited considerable deference to Parliament, and ultimately conceptualized this constitutional problem as one of disproportionality, demarcated by a high threshold. Commentators have criticized both these dimensions, arguing that the narrow quantitative construction of the issue ignores relevant qualitative dimensions, that the high standard leaves untouched the problematic sentences that nonetheless fall below it, and that the Courts’ conceptual approach has been unreflective and incoherent. While these critiques are each compelling, scholars would benefit from a coherent framework through which they can adequately articulate the nature of the section 12 problem, bolster their calls for reform, and, importantly, defuse the Court’s own democratic defence of deference to Parliament. This article argues that a deliberative democratic framework, which grounds the legitimacy of state action in public justification, captures scholars’ concerns and provides them with the conceptual resources for each of these three needs. Furthermore, applying this framework contributes to the broader project of grounding criminal scholarship in political theory and thus understanding criminal justice in light of the proper relationship between citizen and state. | en_US |
