Mandatory Minimum Penalties in Canada: Analysis and Annotated Bibliography

1.0 Introduction: An Overview of Canadian Mandatory Minimum Penalties

This document summarizes core findings on Mandatory Minimum Penalties (MMPs) in Canada. Information and evidence are drawn from refereed publications and journals, policy/position papers, and key monographs; these publications focus on the Canadian MMP experience. This paper reviews core research findings and ideas on MMPs in Canada by showing how they are defined, their history, how they are used, and how they impact key legal system players in the sentencing process. Furthermore, this paper presents arguments supporting MMPs and arguments critiquing MMPs. An annotated bibliography of sources is appended to this document; this bibliography presents a variety of articles concerning MMPs in Canada with some relevant international articles. The annotations contain brief summaries of each article along with a set of keywords. 

1.1 Defining Mandatory Minimum Penalties

Mandatory Minimum Penalties (MMPs) - also called Mandatory Minimum Sentences (MMS) - are described in academic literature and among practitioners as legislated sentencing floors where the minimum punishment is predetermined by law. The mandatory minimum penalty requires judges to impose a specific type and minimum length/extent/severity of sentence to an offender upon conviction for specified criminal offences (Fearn 2011; Tonry 1996, 2009). Judges cannot give a sentence below the predetermined sentencing floor, even when there may be compelling arguments, rules, or principles to do so (see for instance Paciocco 2014). MMPs are different from sentences given by a judge who determines an appropriate sentence by looking to existing jurisprudence, statutory principles of sentencing, case circumstances, and sentencing submissions from counsel.
In Canada, mandatory minimum penalties can be found in the Canadian Criminal Code and the Controlled Drugs and Substances Act. Mandatory punishment does not necessarily mean mandatory imprisonment. Rather, MMPs may include imprisonment, prohibitions and/or fines.

1.2 A Brief History of MMPs in Canada

Mandatory minimum penalties “are not the norm in this country” (R. v. Wust [2000] S.C.J. No. 19, [2000] 1 S.C.R. 455 at para 18), but they are also not new. While the history of MMPs can be traced to colonial times (see Fearn 2011), the Canadian criminal justice system “has always contained a certain class of offences mandating a minimum level of punishment” (Mangat 2014: 8). For instance, Canada has long had mandatory minimum penalties for first and second degree murder. According to a historical review of MMPs, six offences in 1892 carried a minimum term of imprisonment. These offences included engaging in a prize fight (three months), frauds upon the government (one month), stealing post letter bags (three years), stealing post letters (three years), stopping the mail with intent to rob (five years), and corruption in municipal affairs (one month) (Crutcher 2001).

Since 2006, there has been an increase in the number of offences that have MMPs. For example, in 2012, amendments to the Controlled Drugs and Substances Act (CDSA) added MMPs for particular drug offences in certain circumstances (Public Prosecution Service of Canada 2014, Sec. 6-2; Controlled Drugs and Substances Act, 2003). There are currently an estimated 100 offences in the Criminal Code and Controlled Drugs and Substances Act that require a mandatory minimum penalty (Parkes 2012a).

1.3 MMPs in Practice

Mandatory Minimum Penalties are used in various circumstances, for various offences, in various jurisdictions. In Canada, they are most frequently tied to particular types of criminal offences. They can also be applied to a particular type of offender, for example, a repeat offender. Finally, MMPs may also be used in conjunction with other offences: the Canadian victim surcharge is a good example of this. This section briefly describes how MMPs are used, with a specific emphasis on Canadian practice.

1.3.1 Types of Offences

MMPs can apply to certain offences (e.g., selling a particular drug, possessing a certain gun) or to specific repeat offenders (e.g., violent offenders or impaired drivers). Politicians may implement these MMPs as a response to public perception that these types of crimes (or offenders) are especially egregious or irredeemable.

MMPs are defined for various types of offences. In Canada, a few examples of offences that carry a mandatory minimum penalty include: treason (life – s. 47(1)); use of a firearm in the commission of an offence (by indictment on first offence one year – s. 85); trafficking firearms (three years for first offence – s. 99(1)); sexual interference (by indictment on first offence one year – s. 151); first and second degree murder (life – s 235(1)); impaired driving (by summary conviction on first offence -- $1000 fine); aggravated sexual assault (five years for a first offence – s. 273(2)(a)(i)); importing or exporting more than one kilogram of a schedule I drug (one year – s. 6(3) CDSA); producing six or more cannabis plants (6 months – s. 7(2)(b)(i)).

1.3.2 Offenders

Mandatory minimum penalties apply only to adults in Canada; there are no offences with mandatory minimum punishments that apply to youth offenders (Bala 2015).

Experts on this subject describe how certain types of offenders are subject to mandatory minimum penalties. For instance, in the United States, the well-known ‘three-strike’ legislation requires MMPs for offenders convicted of multiple crimes, including mandatory 25 years to life sentences for offenders convicted of a third offence after two serious (felony) crimes (Gabor and Crutcher 2002). There is no such ‘three-strike’ rule in Canada, but repeat violent offenders and offenders with repeated convictions for impaired driving offences may face MMPs (Criminal Code, Sec 255).

1.3.3 Victim Surcharge

Mandatory minimum penalties also include the victim surcharge whichis a fee imposed upon all offenders upon conviction, in addition to the sentences that are specific to their offence. The surcharge is a type of MMP since it is imposed on all offenders. The fee does not go directly to victims, but rather serves to fund victim services (Dupuis 2013). While there is debate about whether the victim surcharge is a sentence, it functions in a similar way as other MMPs when statutory provisions limit judicial discretion. The surcharge has a pre-determined formula to determine the monetary penalties.Footnote 1

The current victim surcharge policy requires everyone convicted of a criminal offence to pay a surcharge of $100 for a summary offence, $200 for an indictable offence, or 30% of any fine imposed by the court. The victim surcharge is an example of a blanket MMP that does not distinguish between types of offending or offenders. In the past, Canadian judges were allowed to waive the surcharge; however, this discretion was removed in 2013.

1.4 The Principles of Sentencing and Judicial Discretion

Mandatory minimum penalties are often seen to conflict with the fundamental and longstanding principles of sentencing that are presented in common law and statute. Some of these principles are found in Section 718 of the Criminal Code. The section describes the fundamental purpose of sentencing as contributing 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:

  1. to denounce unlawful conduct;
  2. to deter the offender and other persons from committing offences;
  3. to separate offenders from society, where necessary;
  4. to assist in rehabilitating offenders;
  5. to provide reparations for harm done to victims or to the community; and
  6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Section 718.1 sets out the fundamental principle of sentencing – that it must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Judges follow the guidelines set forth in Section 718 to ensure that sentences meet the objectives set forth in the Criminal Code. Within this framework, judges are able to justly exercise discretion.

Judicial discretion allows judges to impose sentences on offenders that are appropriate in a specific case. It refers to power to make legally binding decisions and decide among a variety of choices within a set of rules, standards, or principles. Discretion is not unfettered or whimsical; it is exercised, constrained and guided by jurisprudence, the facts of a case, and existing sentencing legislation.

To clarify the nuances and the everyday process of criminal sentencing in Canada, a large body of common law, jurisprudence, and legislation guides the sentencing process. Some of the grand considerations/principles in law include proportionality, parity, and restraint. When sentencing, judges must consider different sentencing options for different legal circumstances (multiple sentences, presentence custody, dangerous offenders, aggravating and mitigating factors), for different types of offenders (youth, disabled, Indigenous), and for specific types of criminal offences (mischief, homicide, arson, exporting drugs, robbery and so on). Therefore, judicial discretion and the everyday practice of sentencing results in expected variability in the actual sentences, processes, limits, and rationales of punishment (Ashworth 2010; Fiske 2007; Manson 2001; Packer 1968; Perrier and Pink 2007).

There are remedies that can be sought through the appeal courts that can overturn sentences when they are deemed improper. Judges are guided by precedent and statute to ensure that sentencing is legally consistent and proportional. Indeed, judicial discretion is seen as an essential part of the common-law justice system. Judicial discretion, among other factors, is central to debates surrounding MMPs in Canada.