Stare Decisis - 'Reasonable Hypotheticals' Charter Doctrine. R. v. Abdelrazzaq
In R. v. Abdelrazzaq (Ont CA, 2023) the Court of Appeal considered whether Charter s.12 ['cruel and unusual punishment'] was violated by CCC 462.3(3) 'orders of forfeiture of property - fine instead of forfeiture'. The specific aspect of s.12 doctrine examined was that of when and whether 'reasonable hypothetical' scenarios could be examined to determine Charter-acceptability. This aspect of s.12 Charter-doctrine goes against convention in that normally the courts should only test the Charter against actual fact situations before it. This gives rise to serious stare decisis problems - namely 'how far' and 'how binding' are any findings that Charter s.12 is violated.
In allowing the Crown appeal, the court held that 'reasonably hypothetical' scenarios could be considered in applying stare decisis to subsequent Charter findings:
 At sentencing, the parties agreed that the proceeds from the sales of the cocaine ($74,560) were subject to forfeiture upon conviction pursuant to s. 462.37(1) of the Criminal Code, R.S.C. 1985, c. C-46. The parties also agreed that the funds were not available for forfeiture at the time of sentencing. As the funds were not available, a forfeiture order under s. 462.37(1) could not be made. The Crown sought an order pursuant to s. 462.37(3) imposing a fine in the amount of the value of the cocaine ($74,560) in lieu of a forfeiture order. The Crown also sought a term of imprisonment in default of payment of that fine as provided for in s. 462.37(4)(iv).
 The respondent challenged the constitutionality of ss. 462.37(3) and (4). He argued that the sections contravened s. 7 and s. 12 of the Canadian Charter of Rights and Freedoms. The respondent’s s. 12 argument had two parts. First, he submitted that the provisions as applied to the facts and circumstances of his case contravened s. 12. Second, he submitted that the provisions contravened s. 12 when applied in other reasonably foreseeable circumstances.
 The trial judge rejected the respondent’s s. 7 argument. He also rejected the submission that the application of the challenged provisions to the circumstances presented in the respondent’s case infringed s. 12. The trial judge did, however, hold that the application of the challenged provisions to offenders in circumstances presented in two reasonable hypotheticals would violate s. 12. The trial judge concluded the infringement could not be justified under s. 1. Having held the section unconstitutional, the trial judge declined to impose a fine in lieu of forfeiture.
 In his reasons, the trial judge acknowledged that this court had recently upheld the constitutionality of the fine in lieu of forfeiture provisions which were being challenged before him. He accepted that in the normal course, he was bound by the decision of this court. The trial judge was satisfied, however, that the result in Chung was not binding on him because the reasonable hypotheticals considered in Chung were radically different from the hypotheticals raised before him. In the trial judge’s view, the differences in the hypotheticals significantly changed the nature of the constitutional challenge and the s. 12 analysis.
 Counsel for the respondent contends the trial judge was correct in holding he could come to his own determination of the constitutionality of the provisions, no doubt guided by the analysis in Chung. Counsel submits that the very different hypotheticals raised before the trial judge put in play considerations relevant to the constitutional analysis that were not present in the hypotheticals relied on in Chung.
 The value of precedent would be greatly diminished if a new s. 12 argument could be advanced every time counsel imagined a different reasonable hypothetical. In Nur, at para. 71, McLachlin C.J. (as she then was) drew the distinction between legitimate consideration of truly new hypotheticals and relitigation in contravention of the stare decisis principle:
[C]an the offender in a future case argue that the provision as applied to others violates s. 12? The answer to this question is that it depends. Once a law is held not to violate s. 12, stare decisis prevents an offender in a later case from simply rearguing what constitutes a reasonably foreseeable range of the law. But stare decisis does not prevent a court from looking at different circumstances and new evidence that was not considered in the preceding case. A court’s conclusion based on its review of the provision’s reasonably foreseeable applications does not foreclose consideration in future of different reasonable applications [citation omitted]. That said, the threshold for revisiting the constitutionality of a mandatory minimum is high and requires a significant change in the reasonably foreseeable applications of the law. I accept that the reasonable hypotheticals used by the trial judge were very different from the reasonable hypotheticals advanced at trial in Chung. However, the determination as to whether the trial judge was ultimately bound by Chung cannot turn simply on a comparison of the reasonable hypotheticals that were before the respective courts. The real question is, did Chung decide the constitutionality of the fine in lieu of forfeiture provisions as they applied to offenders like those described in the hypotheticals used by the trial judge? If the answer is yes, the trial judge was bound by Chung regardless of the reasonable hypotheticals considered in Chung. That question can only be answered by reference to the arguments made in Chung and the reasons given by this court for dismissing the constitutional challenge in Chung.
 In Chung, the three accused were involved in a multi-million dollar fraud on the Ontario Lottery and Gaming Corporation. Two of the three accused received substantial jail sentences, were ordered to forfeit several million dollars, were ordered to pay restitution of over $12,000,000, and were ordered to pay a fine in lieu of forfeiture of $2,300,000 each.
 At the sentencing, the same two accused challenged the constitutionality of the fine in lieu of forfeiture provisions, arguing they violated s. 12 of the Charter. They submitted that a minimum sentence of not less than five years for default in payment of the fine, as required under the statute, constituted cruel and unusual treatment.
 The trial judge in Chung described the narrow ambit of the constitutional challenge to the fine in lieu of forfeiture provisions in his reasons for sentence: R. v. Chung, 2018 ONSC 6633, 424 C.R.R. (2d) 1, at para. 14:
Ms. Presser [counsel for one of the accused] points out that the constitutional challenge is carefully tailored to focus only on the minimum terms of imprisonment fixed by s. 462.37(4) of the Code. There is no challenge to the overall scheme of the system of fines in lieu of forfeiture, with terms of imprisonment in default.. In support of the constitutional argument summarized above, counsel advanced four hypotheticals. All involved offenders who had been ordered to pay fines in lieu of forfeiture of $1,500,000. In the hypotheticals, the offenders had not paid the fines owed by the due date for various reasons, ranging from poor investments, to addiction, to lifestyle choices. The accused argued that in the circumstances presented in the hypotheticals, a five-year minimum sentence in default of payment (with adjustments for any amounts paid on the fine) was so grossly disproportionate as to amount to cruel and unusual treatment.
 The trial judge rejected the s. 12 argument. He released his reasons a little over a month before the Supreme Court of Canada released its reasons in Boudreault. There was no argument before the trial judge based on any analogy between the fine in lieu of forfeiture provisions and the victim surcharge provisions. Not surprisingly, the trial judge made no reference to the victim surcharge provisions in his analysis of the constitutional challenge advanced before him.
 By the time Chung reached this court in October 2020, Boudreault had been decided. Although the appellants in Chung did not alter the hypotheticals they had relied on at trial, they did significantly expand their s. 12 argument. The analysis of the victim surcharge in Boudreault became the centrepiece of the appellants’ constitutional challenge. For example, relying on Boudreault, counsel submitted in their factum that:
[T]he need to continually return to court to apply for extensions of time to pay effectively exposes impecunious offenders to an indeterminate sanction. Like the arguments which found favour with the trial judge in this case, the arguments advanced on appeal in Chung rested on the contention that the effect of the fine in lieu of forfeiture provisions on impoverished and marginalized offenders was no different than the effect of the victim surcharge provisions imposed on the same offenders and determined to be unconstitutional in Boudreault.
 This court, in Chung, considered the application of Boudreault to the fine in lieu of forfeiture provisions at some length. The court clearly appreciated that the comparison of the operation of those provisions was being made in the context of the application of the provisions to offenders like those described in Boudreault. As the court observed, the offenders were the impoverished and uneducated, who were grappling with severe addiction, mental illness or physical disability. They were poor, unhoused, addicted, and marginalized: Chung, at paras. 133-36. Those offenders were also the offenders described in the trial judge’s reasonable hypotheticals.
 This court rejected the argument that the analysis in Boudreault applied to the fine in lieu of forfeiture provisions. The court pointed to specific differences in the operation of the two schemes, and to the fundamental difference in the objectives of the two sets of provisions: Chung, at paras. 136-39.
 Although the hypotheticals in Chung were not altered to include the “Boudreault” hypotheticals, the arguments focused on the characteristics of “Boudreault” offenders. The conclusion in Chung, that the fine in lieu of forfeiture provisions did not constitute cruel and unusual treatment, was made having regard to offenders who shared the same features as the offenders described in Boudreault, and in the trial judge’s hypotheticals.
 Chung decided that the fine in lieu of forfeiture provisions were materially different from the victim surcharge provisions and did not violate s. 12 of the Charter when applied to either offenders like the hypotheticals described in Chung, or offenders like those described in Boudreault and by the trial judge in this case. In short, Chung considered and rejected the substance of the s. 12 arguments accepted by the trial judge. The trial judge was obliged to follow Chung.