Maximum and Minimum Sentences
- < Sentencing
- < Available Sentences
Statutory Minimum
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]
- ↑
R v Thurairajah, 2008 ONCA 91 (CanLII), per Doherty JA, at para 26
- ↑ Thurairajah, ibid.
- ↑
R v Morrisey, 2000 SCC 39 (CanLII), per Gonthier J, at para 75 - discussed in minority decision
R v Colville, 2005 ABCA 319 (CanLII), per curiam, at paras 21 to 26
R v Ferguson, 2006 ABCA 261 (CanLII), per Fruman JA, at paras 71 to 72, 85
R v BCM, 2008 BCCA 365 (CanLII), per Neilson JA
R v Newman, 2009 NLCA 32 (CanLII), per Welsh JA
R v Hammond, 2009 ABCA 415 (CanLII), per Watson JA, at para 8
- ↑
BCM, supra, at para 31
- ↑ BCM, supra, at para 56
- ↑
Morrisey, supra, at para 75
- ↑ R v Serdyuk, 2012 ABCA 205 (CanLII), per Martin JA (2:1)
- ↑
R v Wust, 2000 SCC 18 (CanLII), per Arbour J
R v Arrance, 2000 SCC 20 (CanLII), per Arbour J
R v Arthurs, 2000 SCC 19 (CanLII), per Arbour J
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.
Constitutionality of Minimums
Certain mandatory minimums have been assessed on the basis of cruel and unusual punishments:
| Offence | Section | Min Penalty | Finding | Case |
|---|---|---|---|---|
| Using firearm while committing an offence | 85(3)(a) | 1 year | Constitutional | R v Stephenson, 2019 ABCA 453 (CanLII), 382 CCC (3d) 285, per curiam R v Superales, 2019 ONCA 792 (CanLII), [2019] OJ No 5008, per curiam |
| X | 95(2)(a)(ii) | 5 years | Unconstitutional | R v Nur, 2015 SCC 15 (CanLII), per McLachlin CJ |
| Sexual Interference (prior to 2015) | 151(a) | 45 days | Unconstitutional | R v BJT, 2019 ONCA 694 (CanLII), per Feldman JA |
| Sexual Interference (prior to 2015) | 151(a) | 45 days | Constitutional | R v Lonegren, 2010 BCSC 960 (CanLII), 260 CCC (3d) 367, per Barrow J R v Craig, 2013 BCSC 2098 (CanLII), [2013] BCJ No 2518, per Bracken J |
| Sexual Interference (prior to 2015) | 151(b) | 14 days | Constitutional | R v TMB, 2013 ONSC 4019 (CanLII), 299 CCC (3d) 493, per Code J |
| recklessly discharging a firearm | 244.2(3)(a)(i) | 5 years | Constitutional | R v Abdullahi, 2014 ONSC 272 (CanLII), per McWatt J |
| 244.2(3)(a)(ii) | 7 years | Constitutional  |
R v Mohamed, 2016 ONCJ 492 (CanLII), per Wadden J | |
| 244.2(3)(b) | 4 years | |||
| Drug Trafficking | 5(3)(a)(i)(D) CDSA | Unconstitutional  |
R v Lloyd, 2014 BCCA 224 (CanLII), per Groberman JA upheld 2016 SCC 13 (CanLII), per McLachlin CJ |
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]
However, elimination of minimums "permits the court to treat the less serious cases less seriously".[3]
Statutory Maximums
The maximum available sentence for a given offence will be provided within the provisions defining the offence.
Given the distinction between summary offences and indictable offences, the maximum penalties for summary offences will always be less than indictable.
It is generally stated that the maximum penalty is not simply reserved for the "worst of the worst" offenders.[1] All relevant factors must be considered and should only be considered appropriate where the "offence is of sufficient gravity and the offender displays sufficient blameworthiness".[2]
To impose a maximum sentence it is necessary for the judge to take into account pre-sentence custody otherwise the sentence is effectively beyond the statutory maximum.[3]
- Summary Conviction Offences
Where an offence is described as punishable by "summary conviction", section 787(1) states the punishment will be a fine of no more than $5,000 and/or 6 months jail unless the offence specifies otherwise.
- General penalty
787 (1) Unless otherwise provided by law, every person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.
[omitted (2)]
R.S., 1985, c. C-46, s. 787; R.S., 1985, c. 27 (1st Supp.), s. 171; 2008, c. 18, s. 44; 2019, c. 25, s. 316.
Other available summary offence maximums include 18 months jail.[4]
However, under s. 735 where the accused is an organization, the summary conviction fine amount increases to $100,000.
On summary elections for hybrid offences, the court is bound by the maximum range set by parliament. However, the courts should not "scale up" or "scale down" the sentences due to the election.[5]
- Indictable Offences
The maximum for indictable offences will always be specified in the provisions. The code will specify a maximum of 2, 5, 10, 14 years jail or life.
- ↑
R v Solowan, 2008 SCC 62 (CanLII), per Fish J
R v LM, 2008 SCC 31 (CanLII), per LeBel J - ↑ R v Cheddesingh, 2004 SCC 16 (CanLII), per McLachlin CJ
- ↑ R v Severight, 2014 ABCA 25 (CanLII), per curiam
- ↑ e.g. s. 253, 264.1
Offences by Penalty - ↑ Solowan, supra
Intimate Partner Violence
718.3
[omitted (1), (2), (3), (4), (5), (6) and (7)]
- Maximum penalty — intimate partner
(8) If an accused is convicted of an indictable offence in the commission of which violence was used, threatened or attempted against an intimate partner and the accused has been previously convicted of an offence in the commission of which violence was used, threatened or attempted against an intimate partner, the court may impose a term of imprisonment that is more than the maximum term of imprisonment provided for that offence but not more than
- (a) five years, if the maximum term of imprisonment for the offence is two years or more but less than five years;
- (b) 10 years, if the maximum term of imprisonment for the offence is five years or more but less than 10 years;
- (c) 14 years, if the maximum term of imprisonment for the offence is 10 years or more but less than 14 years; or
- (d) life, if the maximum term of imprisonment for the offence is 14 years or more and up to imprisonment for life.
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2015, c. 23, s. 17; 2019, c. 25, s. 294.
This provision was introduced September 19, 2019 and would only apply to those offences committed after that date.
See Also
- Interpreting Legislative Amendments - including increase of penalties