What are mandatory minimum sentences?
For some offences, the government body that creates them may decide that they should have minimum penalties. For example, Parliament has specified this in the Criminal Code for certain offences. What this means is that if a person is found guilty or pleads guilty to the offence in question, the government’s view is that there should be a sentence that no judge can go below for the offender before them.
Mandatory minimum sentences are not the norm in the Criminal Code. Nevertheless, a variety of different types of offences now have them listed.
Can mandatory minimum sentences be challenged in the courts?
Yes. The primary method of challenging them is by arguing that they are contrary to section 12 of the Canadian Charter of Rights and Freedoms. Section 12 states that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
How does that type of challenge work?
The modern method for challenges to mandatory minimum sentences was set out in a case from the Supreme Court of Canada called R v Nur, 2015 SCC 15. The approach has been refined and clarified in a variety of further Supreme Court cases since then, most recently R v Bertrand Marchand, 2023 SCC 26.
The Supreme Court has specified that a two-stage inquiry is required.
First, the sentencing judge deciding a case must determine what the appropriate sentence for the offender before them, and possibly other reasonably foreseeable offenders, would be if the mandatory minimum was not part of the equation.
Second, the sentencing judge must determine if the mandatory minimum is grossly disproportionate to that appropriate sentence or sentences. If it is, the mandatory minimum infringes section 12 of the Charter.
What does “grossly disproportionate” mean?
The Supreme Court has stated that grossly disproportionate means more than just being too high. For example, in the case of R v Hills, 2023 SCC 2, it referred to previous descriptions it has provided for the concept, including “so excessive as to outrage standards of decency”, to be “abhorrent or intolerable” to society, and to “shock the conscience” of Canadians.
What are “other reasonably foreseeable offenders”?
In some cases, a mandatory minimum sentence may not be grossly disproportionate to the appropriate sentence that would make sense for the particular offender before a judge. However, in making a challenge to the mandatory minimum, the Defence can also raise hypothetical scenarios for consideration by the judge – in other words, not people that are actually before that judge at that moment, but people who could reasonably end up before the courts for sentencing for the same offence.
Those hypothetical people would likely have different circumstances than the actual offender in front of the judge and would likely have committed the offence or engaged with the court system in a different way. As a result, their cases could be worthy of significantly lower sentences than the particular offender. However, it is important that these hypothetical people be ones that could reasonably exist or come into existence.
There are a few different reasons that consideration of these hypothetical offenders is part of the analysis, but one of the most important is, as explained in R v Nur, “If the only way to challenge an unconstitutional law were on the basis of the precise facts before the court, bad laws might remain on the books indefinitely. This violates the rule of law.”
If the judge accepts that some of these hypothetical scenarios are reasonably foreseeable, they must determine whether the mandatory minimum sentence is grossly disproportionate to the sentences that would be appropriate for them as well.
If a mandatory minimum sentence has previously been found to be valid in other cases,
can it still be challenged again?
Yes. In R v Nur, the Supreme Court stated that there are two primary ways that this can be done. First, if the offender can establish that their case or circumstances are different from previous offenders, a new section 12 Charter analysis can occur. Second, an offender could try to point to a significant change in the reasonably foreseeable applications of the law. Examples of this second path could likely be by presenting a significantly different set of hypothetical offenders, or if there has been a significant change in the law or the evidence and circumstances that fundamentally changes the analysis.
What happens if a mandatory minimum sentence infringes section 12 of the Charter?
If so, the Prosecution can try to argue that the infringement should be justified by section 1 of the Charter. Section 1 can be used to allow certain laws that infringe upon Charter rights to still remain valid and active. However, the Supreme Court has noted that it is rare that a mandatory minimum sentence that violates section 12 could be justified by section 1.
If it is not justified by section 1, then the mandatory minimum sentence in question is unconstitutional. If the judge finds the mandatory minimum sentence to be unconstitutional, it would not be applied to the offender before that judge for sentencing. Certain higher levels of court also have the ability to strike down the law in their jurisdictions, by declaring that it is of no force and effect.
It is important to keep in mind that just because a mandatory minimum sentence is found to be unconstitutional, it does not at all mean that an offender will walk away with no penalty. To the contrary, a sentence must still be imposed, and that sentence could still be very serious. However, the judge will have significantly more flexibility and ability to craft an appropriate sentence, one that fits the specific offender before them on the particular facts of the case. This is an important aspect of sentencing in Canadian law.