The Pros and Cons of Mandatory Minimum Penalties in Canada
The debate surrounding mandatory minimum penalties (MMPs) is contentious and ongoing.
Historically, these sentences have been repealed by the federal government and ruled unconstitutional by the Supreme Court of Canada (SCC). The need for MMPs can be hotly contested. Proponents argue they are necessary to deter violent crime while opponents say they disproportionally target minorities and marginalized members of society.
Mandatory minimum penalties, also known as mandatory minimum sentences (MMS), can be found in the Criminal Code and the Controlled Drugs and Substances Act.
MMPs have legislated sentencing floors for specified criminal offences. Judges are not permitted to impose a penalty below the predetermined sentencing floor, even if there is “compelling arguments, rules, or principles to do so,” according to the Department of Justice (DoJ).
In cases where MMPs are not applicable, it is left to a judge to determine an appropriate sentence by considering existing statutory principles of sentencing, jurisprudence, case circumstances and sentencing submissions from Crown and defence attorneys.
I believe that except for very specific offences, such as murder, it should be left to the wisdom of the court to pass the appropriate sentence. After all, judges are the experienced and knowledgeable arbiters of our justice system. And let’s not forget, unjust sentences can be overturned by our appellant courts.
Some reverse engineering is necessary to see how we arrived at this point in the debate. Mandatory minimums have long been part of our Criminal Code. According to the DoJ, six offences in 1892 carried a minimum term of imprisonment. In 1995, the former Conservative federal government under Prime Minister Stephen Harper took a run at curbing violent crime in what they called a “catch-and-release-style” justice system by introducing more minimum sentences.
In 2022, the Liberal government enacted Bill C-5, repealing MMPs for 14 Criminal Code offences and all six minimum sentences in the Controlled Drugs and Substances Act. MMPs remain for murder, high treason, sexual offences (including child sexual offences), impaired driving offences and some firearm offences, including firearms offences connected to a criminal organization.
In its reasoning, the Liberals stated it was not taking a soft-on-crime approach, arguing the laws focusing on punishment through imprisonment “have disproportionately affected Indigenous peoples, as well as Black Canadians and members of marginalized communities.”
As well, mandatory minimum sentences have “resulted in longer and more complex trials, including an increase in successful Charter challenges and a decrease in guilty pleas, which has compounded the impact for victims, who are more often required to testify. They have failed to deter crime.”
There is also the practicality of removing MMPs. It ensures that prison space is available and preserves resources for the most dangerous criminals in society. It should be noted that keeping an inmate incarcerated is expensive.
According to recent studies, it costs about $314 a day to house a prisoner or $114,000 a year. Our jails are overcrowded, so much so that people serving intermittent sentences on weekends are being told to go home because there is no room for them.
The MMP issue was in the news again recently, with the Supreme Court ruling last month that the penalties in two cases were constitutional. The court also found the punishment in one instance violated a man’s rights under the Charter of Rights and Freedoms.
The rulings should come as no surprise. In one case, the court heard a man acted as the getaway driver for two masked bandits who robbed a store in Alberta. During the robbery, the man’s accomplices assaulted employees and fired a gun at a shelf.
The man pleaded guilty to robbery with a firearm and was given a mandatory four-year prison term. The SCC denied his appeal of the sentence.
In the second case, a 24-year-old man and a 13-year-old robbed and assaulted employees of an Edmonton store. The man, who was on probation and subject to a firearms prohibition, held an unloaded shotgun on employees while his accomplice assaulted them.
He pleaded guilty to robbery using a prohibited firearm and was sentenced to the mandatory minimum of five years in prison. The Supreme Court ruled the punishment did not violate Canada’s Constitution.
In the case that was ruled unconstitutional, the court heard a Lethbridge, Alta., man was ordered held for four years in prison after he smashed car windows with a baseball bat and fired into a home with an air rifle.
It is reasonable to expect that the SCC would uphold MMPs for violent acts during a robbery, just as it stands to reason that it would be unconstitutional to use mandatory minimums to punish a man for firing an air rifle. Context is important in each case, but context must be ignored by a judge during sentencing if mandatory minimums are in place.
If you are talking about a firearms offence the details are important. What type of firearm was it? Was it registered? Was it loaded? Was it used? All of this should be considered by a judge when handing down a penalty but MMPs take that decision out of their hands.
MMPs may sound like a panacea on paper but can be ineffective in practice. If I have a client charged with a crime, they can exercise their right to have a trial. However, that client could decide to plead guilty, saving valuable court time and expense. In return, that person could expect to get a break on sentencing.
However, if my client has committed a crime covered by an MMP, the judge would have no discretion to reduce the sentence. It should resonate that that is not fair.
The result is fewer people pleading guilty, which leads to more overcrowded courts and delayed trials, which can become an access to justice issue.
Do we need mandatory minimums? That depends on who you ask and there are no easy answers. As a criminal defence lawyer, I work diligently to keep those I represent from facing an unnecessarily harsh penalty. But MMPs hinder my ability to do that.
Justice should not be about vengeance. Sentencing is one of the most important, if not the most important, aspects of criminal law. The key sentencing principles in a just society are rehabilitation, deterrence and denunciation.
We have the law, sentencing principles and precedent at our disposal. We should be able to rely on the judge’s discretion in determining a fair and equitable punishment rather than automatically imposing a mandatory minimum.
The nature of punishment must be based on the gravity of the offence. Simply imposing mandatory minimum sentences in a hardline approach to reducing crime will not work. It is like killing a butterfly with a sledgehammer.
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