Mandatory Minimum Penalties

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 95846)

General Principles

See also: Statutory Maximum Penalties

The Criminal Code give judges a wide range of sentencing options that are to be guided by the sentencing principles rather than constrained by sentencing grids and minimums as occurs in other countries.[1] Judicial discretion is a "central feature of the sentencing process in Canada."[2]

Effect of Minimum on Range of Sentence

It has been agreed upon by several courts that mandatory minimums act as an "inflationary floor" and sets a new minimum punishment for the best offender.[3]

The mininum "introduces a higher starting point" which creates "a narrower range" within which sentencing principles operate. [4]

When Minimums are Applied

It would be wrong to impose the minimum on the least culpable offender in the least serious circumstances and then provide the same sentence upon someone who is more culpable and for a more serious offence where they would have received that sentence under the old regime.[5]

Raised minimums should not create a standard sentence to be "imposed on all but the very worst offender ... in the very worst circumstances."[6]

Minimums cannot be applied retrospectively.[7]

Remand Credit

Section 719(3) permits taking into account remand credit to sentence, and can have the effect of bringing a sentence below the mandatory minimum penalty.[8]

Criticisms

Mandatory minimums have been criticized by the Supreme Court for:[9]

  • "depriv[ing] the courts of the ability to tailor proportionate sentences at the lower end of the range";
  • impose unjust sentences that violate the principle of proportionality
  • shift the focus away from the offender;
  • modify the sentencing process that relies on review of all relevant factors of sentencing; and
  • change the "normal judicial process of sentencing".
  1. ↑ R v Thurairajah, 2008 ONCA 91 (CanLII), 229 CCC (3d) 331, per Doherty JA, at para 26
  2. ↑ Thurairajah, ibid.
  3. ↑ R v Morrisey, 2000 SCC 39 (CanLII), [2000] 2 SCR 90, per Gonthier J, at para 75 - discussed in minority decision
    R v Colville, 2005 ABCA 319 (CanLII), 201 CCC (3d) 353, per curiam, at paras 21 to 26
    R v Ferguson, 2006 ABCA 261 (CanLII), 212 CCC (3d) 161, per Fruman JA, at paras 71 to 72, 85
    R v BCM, 2008 BCCA 365 (CanLII), 238 CCC (3d) 174, per Neilson JA
    R v Newman, 2009 NLCA 32 (CanLII), 84 WCB (2d) 715, per Welsh JA
    R v Hammond, 2009 ABCA 415 (CanLII), 249 CCC (3d) 340, per Watson JA, at para 8
  4. ↑ BCM, supra, at para 31
  5. ↑ BCM, supra, at para 56
  6. ↑ Morrisey, supra, at para 75
  7. ↑ R v Serdyuk, 2012 ABCA 205 (CanLII), 557 WAC 199, per Martin JA (2:1)
  8. ↑ R v Wust, 2000 SCC 18 (CanLII), [2000] 1 SCR 455, per Arbour J
    R v Arrance, 2000 SCC 20 (CanLII), [2000] 1 SCR 488, per Arbour J
    R v Arthurs, 2000 SCC 19 (CanLII), [2000] 1 SCR 481, per Arbour J
  9. ↑ R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, at para 44

Notice for Minimum Sentences under the CDSA

Notice

8 The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General’s intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.
2012, c. 1, s. 42.

– CDSA (CanLII), (DOJ)

Note up: 8

Constitutionality of Minimums

See also: Cruel and Unusual Punishment

Consequence of Unconstitutional Minimums

Where a mandatory minimum was found unconstitutional, the removal of a minimum "does not operate to diminish the whole previously established sentencing pattern" proportionate to the previous minimum.[1] The removal of the floor will have some "ameliorating effect" on sentencing but not a "wholesale" reduction, which would otherwise defeat the parliamentary intent to characterize the offence as serious.[2] This also means that the sentencing cases decided while the MMP was in force is not relevant to sentencing and those prior to the amendment should still be viewed with caution.[3]

However, elimination of minimums "permits the court to treat the less serious cases less seriously."[4]

  1. ↑ R v Mediratta (1988), 29 OAC 333(*no CanLII links) , per Zuber JA, at p. 334
  2. ↑ Mediratta, ibid., at p. 334
  3. ↑ R v Inksetter, 2018 ONCA 474 (CanLII), 141 OR (3d) 161, per Hoy ACJ, at para 24 ("even if the mandatory minimums are declared of no force and effect, Parliament’s legislative initiatives signal Canadians’ concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewed with some caution")
  4. ↑ R v Saulnier, 1987 CanLII 2414 (BCCA), 21 BCLR (2d) 232, per Seaton JA, at para 6
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