- In Canada mandatory minimum sentences are imposed on convicted individuals for certain criminal offences.
- Since the inception of the Criminal Code in Canada in 1892 there have always been criminal offences that carry mandatory minimum sentences.
- This means that sentences imposed on individuals convicted of certain offences cannot be less than the corresponding mandatory minimum sentence for that offence.
- In 1892 only six offences carried mandatory minimum sentences. Since that time there have been many amendments to mandatory minimum sentencing legislation.
- From 2005 and to 2015 many laws were passed according to a “tough on crime” agenda.
- In 2012 the government introduced The Safe Streets and Communities Act, also known as the Ominous Crime Bill, mandating stricter mandatory minimum sentences for numerous offences.
- The imposition of mandatory minimums according to the tough-on-crime agenda was widely criticized as it limited the discretion of sentencing judges more than ever before.
- As well, where offences already carried mandatory minimum penalties, these penalties were increased in length and severity.
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The “Tough on Crime” Agenda
- Criminal offences for growing more than five marijuana plants was punishable by a minimum of 6 months imprisonment and larger numbers of plants brings longer mandatory minimums.
- Criminals offences where individuals were convicted of being involved in the production of more harmful substances, like heroin; cocaine in any form; and methamphetamines, were subject to mandatory minimum sentences of at least two years imprisonment.
- Impaired driving offences carry increased and more severe sentences.
- In 2005, the mandatory minimum for a first offence has increased from a $600.00 fine to one of $1,000.00.
- The mandatory minimum sentence for a second offence has increased from 14 days imprisonment to 30 days.
- A third, or higher, offence now carries with it at least 120 days of imprisonment.
- Previously, a third, or higher, offence carried a mandatory minimum of 90 days imprisonment, which meant judges could permit offenders to serve their sentences on weekends.
- This is no longer possible as it not legally permissibale to serve intermittent sentences where the penalty is more than 90 days.
Recent Changes to Mandatory Minimum Legislation
- Recently there has been a shift towards more moderate sentencing principles.
- It has been argued that sentencing for criminal offences should be left to the discretion of the courts, as the courts are in the best position to judge the context of a criminal offence and impose an appropriate sentence, specific to that offence.
- Recently The Supreme Court of Canada has struct down two of these “tough on crime” sentencing principles as unconstitutional.
- In the first case, the court ruled that a mandatory minimum sentence of one year in prison for a drug offence violates the Charter of Rights and Freedoms, amounting to cruel and unusual punishment.
- The court ruled the mandatory sentence cast too wide a net over a too wide a spectrum of offenders, imposing strict sentences on those whose conduct didn’t warrant such a sentence.
- “If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentence…. “In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment.” The judgment read.
- In the other case, the Supreme Court unanimously ruled that a person who is denied bail because of prior convictions should be able to receive credit for time served before sentencing.
- Typically a person denied bail can get 1.5 days of credit for each day spent in pre-sentence custody, reflecting what are usually poor custody conditions.
- Under sentencing reforms introduced in 2009, a person denied bail because of a previous conviction is not eligible for enhanced credit.
- More changes reflecting lenient sentencing principles are expected, as current Prime Minister Justin Trudeau, has said a review should be conducted of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system.
- If you have been charged with a criminal offence please contact Toronto Criminal Defence Lawyers, Kostman and Pyzer (416) 658-1818 for assistance.
Hulya Genc studied philosophy at York University and is a certified mediator. She is pursuing a career in law, with the intention of practicing criminal law.