Do Mandatory Minimums Work?

Back in 2009, Stephen Harper’s Conservative government introduced legislation amending the Criminal Code, which laid out mandatory sentencing minimums for various offences. Since then, these mandatory minimums have received some harsh criticism and the Supreme Court has even struck down a few.

The sentencing judge is placed in a unique position where they know a great deal about the circumstances of the offence and the particular characteristics of the offender. The sentencing judge has often heard a trial of the matter, they have heard first hand sentencing submissions from the Crown and defence, and they have observed the offender in person while in the courtroom. This unique position can be pushed to the side when the sentencing judge is forced to abide by mandatory minimums, and sometimes the sentencing judge is forced to levy a sentence that is higher than what they would have otherwise imposed.

Sentencing is often very personal, and in every case the sentencing judge is required to take into account the degree of moral culpability of the offender. Moral culpability can be linked to things like mental illness, poverty, desperation and addiction. When sentencing, judges will consider things like rehabilitation, deterrence and denunciation. Additionally, the sentencing judge is required to consider the impact of colonial history when sentencing indigenous persons. In cases where mandatory minimums apply, there is a risk that these personal factors of the offender will not be fully considered.

Mandatory minimums propose a “one size fits all” approach to sentencing, but as the Supreme Court discovered in two noteworthy cases, this approach does not always align with the reality of what can be captured under an offence.

In 2014, in the case of R v Lloyd, the Supreme Court struck down a mandatory one-year sentence for drug possession for the purpose of trafficking in cases where the offender had previously been convicted of a similar offence. Chief Justice Beverley McLachlin’s decision referenced the broad range of conduct that the minimum encompassed, and she pointed out that the mandatory minimum could mean substantial jail time for someone who had simply passed around a joint.

“At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of drugs, and who has been convicted many times for similar offences,” wrote Chief Justice McLachlin. “At the other end of the range stands the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before. Most Canadians would be shocked to find that such a person could be sent to prison for one year.”

In 2015, the Supreme Court struck down another mandatory minimum in R v Nur. At issue in Nur was a mandatory minimum that required the imposition of a minimum of three years in jail for possession of a prohibited or restricted firearm. The Supreme Court once again commented on the often-broad reach of mandatory minimums. In striking down this minimum, the Court made reference to how this mandatory minimum could potentially capture conduct that was a lot closer to a licensing infraction, such as a spouse who finds herself in possession of her husband’s firearm.

Sentencing is often complex and multi-dimensional, tenets that are not consistent with the “one size fits all” approach of mandatory minimums. Moving forward it will be interesting to see how the Supreme Court deals with mandatory minimums, and if the aforementioned cases are of any indication we can expect to see more mandatory minimums struck down in the future.