Reconsidering Luxton in the Post-Nur Revolution: A Brief Qualitative and Quantitative Analysis of Recent Challenges to Mandatory Minimums and Other Sentencing Provisions
In the 1990 decision of R v Luxton, the Supreme Court of Canada (SCC) upheld the mandatory minimum for first-degree murder as constitutional in large part because of the existence of the Faint Hope Clause Regime, which was abolished in 2011. Since then, Parliament has also codified proportionality as the fundamental principle of sentencing. Similarly, the SCC has rendered the Gladue line of cases. These changes suggest that the reasons for upholding Luxton may no longer be as valid now as they were back then. Recognizing that legal argument is as much a sociological phenomenon as it is about the law, the thesis of this article is that it is only recently that challenges to mandatory minimums have gained sufficient momentum to give a challenge to Luxton a fighting chance. Nur sent a strong signal to lower courts that unjustified constraints on their ability to impose proportionate sentences would no longer be tolerated. To quantitatively and qualitatively test this theory, the inventory of cases from MMS.watch will be analyzed to show that Nur sparked a revolution that has not only seen an increase in the number of challenges brought against mandatory minimums, but an increase in their success rate and reach. Then, using three key 2020 decisions from three different Appellate Courts, recent trends in judicial thinking that demonstrate both a boldness that is finally ready to take on Luxton, as well as support for some of the reasons for overturning Luxton, will be highlighted.