First, the 1990 case, which was Luxton, was at the time when we still had some aspects of constructive murder. I'm not going to get into a big lecture about this, but those were the major issues in front of the Supreme Court of Canada, and they succeeded. Constructive murder is unconstitutional. I was very surprised that in this package of cases they also raised the constitutionality of the penalty, because they called no evidence; there was no evidence in the record.
Chief Justice Lamer said that 25 years for the gravest crime is surely not that grossly disproportionate. That's the section 12 test. He also said “taking into account the potential for individualization that exists”, and one of his major examples was this process.
I'm saying that if you do away with this process, you've reopened the question. It will be re-argued on the basis of section 12 jurisprudence, which is gross disproportionality. Viewed from the perspective either of this offender or a reasonable hypothetical, section 12 jurisprudence looks at individual circumstances and culpability, but it can be the reasonable hypothetical.
We will see evidence, like some of Canada's own studies, the one that Dr. Gendreau did in the late nineties, pointing out the impact of long-term confinement on vulnerable groups with respect to recidivism. We'll see studies from American criminologists and psychologists about long-term deleterious psychological effects. That's the kind of evidence I would think we'd want to see in front of the Supreme Court when it deals with the question afresh.