Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models
Twenty-nine offences in the Canadian Criminal Code carry a mandatory minimum sentence of imprisonment . The majority (19) of these mandatory minimum sentences were introduced with the enactment of Bill C-68, a package of firearms-related legislation in 1995. In addition, there are also mandatory minimum sentences for other offences, such as child prostitution, betting, pool-making, and impaired driving. Every year in the Canadian Parliament, private member's bills are introduced to add new minimum sentences such as joy riding and repeat violent offenders. In light of this, it is surprising that it has been almost ten years since any amendments have been made to the Criminal Code that would add, repeal or modify the current statutory minimum sentences. With respect to the firearms offences, courts must impose a sentence of at least four years imprisonment if the offender has been convicted of one of the enumerated offences (see Appendix A). Currently, there is no discretion for judges to reduce the sentence for anyone convicted of an offence carrying a mandatory minimum sentence in Canada .
In 1995, an amendment to the Criminal Code regarding sentencing was enacted. The new legislation codified the purpose and principles of sentencing. Section 718, of the Criminal Code of Canada states:
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
- to denounce unlawful conduct;
- to deter the offender and other persons from committing offences;
- to separate offenders from society, where necessary;
- to assist in rehabilitating offenders;
- to provide reparations for harm done to victims or the community; and
- to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. (1995, c. 22, s.6).
In addition, according to s. 718.1 sentences should be proportionate to the offence and reflect the degree of responsibility of the offender. Section 718.2 of the Criminal Code outlines other sentencing principles and specifies a number of aggravating factors which the courts may also take into consideration. The aggravating factors include offences motivated by prejudice or hate; if the victim was a spouse or child; if the offender abused a position of authority in committing the offence; if the offence was committed for the benefit of organized crime or if the offence was a terrorism offence.
Minimum sentences in Canada can be broken down into four principal categories (See Appendix A). The first type is a mandatory life sentence imposed upon conviction for three offences: treason, first degree murder and second degree murder. The second type, the largest category with 16 offences, consists primarily of firearms offences. For some offences within this category, the use of a firearm is embedded within the individual offence section as opposed to being a separate, sentence enhancement. The third category of mandatory minimum sentences pertains to repeat offenders. These sentences apply only to an offender with at least one previous conviction for the same offence. There are seven offences in total in this category and are directed at driving while impaired, betting, and possession of unauthorized weapons.
The last category of minimum sentences is for hybrid offences. In the case of a hybrid offence, Crown prosecutors have the option of electing to proceed by way of a summary or indictable offence. For summary offences, the punishments are less severe and none carry a mandatory minimum sentence. However, for the three firearms offences within this category, if the Crown elects to proceed by way of indictment, a conviction will result in the imposition of a minimum sentence.
While there has been no research into the impact of the 1995 firearms legislation, Meredith, Steinke, & Palmer (1994) examined the mandatory minimum one-year sentence for offenders convicted of using a firearm during the commission of an offence found in s. 85 of the Criminal Code of Canada . The researchers found that charges under this section were often used in plea negotiations and about two-thirds of the charges laid were stayed, withdrawn or dismissed. In addition, the study showed that when Crown attorneys proceeded with charges under s. 85, there was a lower probability of conviction.
The judiciary in Canada and elsewhere are opposed to mandatory sentences of imprisonment. The Canadian Sentencing Commission (1987) found in their survey of judges that slightly over half felt that minimum sentences impinged on their ability to impose a just sentence and that inappropriate agreement between defence and Crown counsel may result.
The future of mandatory minimum sentences in Canada remains unclear. There is some indication that minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits. Nevertheless, mandatory sentences remain popular with some Canadian politicians. Every year in Parliament, bills continue to be introduced that, if passed, would increase the number of mandatory minimum sentences of imprisonment.
- Canadian Sentencing Commission (1987). Sentencing Reform: A Canadian Approach . Ottawa : Supply and Services Canada .
- Crutcher, N. (2001). Mandatory minimum penalties of imprisonment: An Historical Analysis. Criminal Law Quarterly , 44(3), 279-308.
- Gabor, T. (2001). Mandatory minimum sentences: A utilitarian perspective. Canadian Journal of Criminology , 43: 385-405.
- Gabor, T., & Crutcher, N. (2002). Mandatory minimum penalties: Their effects on crime, sentencing disparities, and judicial system expenditures . Ottawa : Department of Justice Canada .
- Meredith, C., Steinke, B., Palmer, S. (1994). Research on the Application of Section 85of the Criminal Code ofCanada . Working Document WD1994-20e. Ottawa : Department of Justice Canada .
- Roberts, J.V. (2003). Public opinion and mandatory sentencing. Criminal Justice and Behaviour , 20: 1-26.
- Roberts, J.V., & Cole, D.P. (1999). Making sense of sentencing . Toronto : University of Toronto Press.
-  This was the total number at the time of writing.
-  See also the special issue of the Osgoode Hall Law Journal (Volume 39, Numbers 2 and 3) published in 2001 that was devoted to the issue of mandatory minimum sentences.
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