It's a good question and I thank you for it.
I think the analysis there would follow along the lines of what I answered to Mr. Brock. In considering the constitutional arguments in respect of a mandatory minimum penalty, the court would follow the two-step process.
In the first instance, it would consider the specific impacts on the individual before the court—that particular accused or offender—and whether it would constitute cruel and unusual punishment vis-à-vis them. They would be able to avail themselves of the fact that this clause exists, if Bill C-16 were to pass, to come to the conclusion that but for this clause, the result vis-à-vis the specific offender before the court would constitute cruel and unusual punishment. Because of the clause, were it enacted, the court need not come to that conclusion because it would have the ability to depart in relation to the specific offender.
If, in respect of the specific offender, the MMP wasn't cruel and unusual, they wouldn't have to consider proposed section 718.4 because it wouldn't amount to cruel and unusual punishment in those specific cases. They would still be required to move to the second stage of the constitutional analysis, which is a reasonable hypothetical and whether it would be grossly disproportionate for a reasonable case that is not far-fetched, as the court has said.
In those circumstances, as I said to Mr. Brock, our understanding would be that, again, the court would be able to take into account that even in respect of that reasonably foreseeable situation, the court would be able to invoke proposed section 718.4 for that reasonably foreseeable offender and allow it to impose a sentence of less than the mandatory minimum penalty of imprisonment.
Whether it's cruel and unusual with respect to the specific offender or whether it's cruel and unusual with respect to the hypothetical offender, proposed section 718.4 would provide an alternative approach for the courts to impose less than the MMP.