The Supreme Court of Canada has struck down several mandatory minimum sentences in the past two years. With numerous sentences having been struck down, the Liberal government is re-assessing mandatory minimum sentences in general. In researching the issue, one proposal the government has received is to create exceptions.
Suggested Exceptions to Mandatory Minimum Sentences
These suggested exceptions to mandatory minimum sentences include; when an accused person enters an early guilty plea, if they are a juvenile offender, or when an accused provides substantial help to the state. All of these examples of potential exceptions pose issues.
What is considered to be an early guilty plea? It is well known that a sentence on a plea (generally) may be less than a sentence after a finding of guilt at trial. Wouldn’t making a plea of guilty a set exception indirectly ‘force’ accused persons to want to plea?
What about a youthful first offender who is not actually a youth pursuant to the Youth Criminal Justice Act?
Providing substantial help to the state is an extremely problematic exception. An accused person is presumed innocent until proven guilty. They are not obliged to assist the police in their investigation in any way. The burden of proof rests on the Crown and only on the Crown. I am uncertain, if this particular exception is in fact being considered, I am curious as to what kind of assistance legislators envision an accused person even providing?
R. v. Lloyd and Mandatory Minimum Sentences
The Supreme Court of Canada in R. v. Lloyd had suggested one option would be for judicial discretion to allow for a lesser sentence if the mandatory minimum would violate section 12 of the Charter (cruel and unusual punishment). At paragraph 36 of that decision, the majority states:
Another solution would be for Parliament to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment. Residual judicial discretion for exceptional cases is a technique widely used to avoid injustice and constitutional infirmity in other countries: Department of Justice Canada, Research and Statistics Division, Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models (2005) (online), at pp. 1, 4 and 35. It allows the legislature to impose severe sentences for offences deemed abhorrent, while avoiding unconstitutionally disproportionate sentences in exceptional cases. The residual judicial discretion is usually confined to exceptional cases and may require the judge to give reasons justifying departing from the mandatory minimum sentence prescribed by the law. It is for the legislature to determine the parameters of the residual judicial discretion. The laws of other countries reveal a variety of approaches: Criminal Law Amendment Act, 1997 (S. Afr.), No. 105 of 1997, s. 51(3)(a); Firearms Act 1968 (U.K.), 1968, c. 27, s. 51A(2); Violent Crime Reduction Act 2006 (U.K.), 2006, c. 38, s. 29(4); Powers of Criminal Courts (Sentencing) Act 2000 (U.K.), 2000, c. 6, ss. 109(3), 110(2) and 111(2); Sentencing Act (N.T.), s. 78DI; Sentencing Act 1991 (Vic.), s. 10(1); Sentencing Act 2002 (N.Z.), ss. 86E, 102 and 103; Criminal Law (Sentencing) Act 1988 (S.A.), s. 17; 18 U.S.C. § 3553(f) (2012); Penal Code [Brottsbalken] (Swed.), c. 29, s. 5. There is no precise formula and only one requirement — that the residual discretion allow for a lesser sentence where application of the mandatory minimum would result in a sentence that is grossly disproportionate to what is fit and appropriate and would constitute cruel and unusual punishment.
Judicial discretion allows Judges to maintain control over the sentencing process. If the government determines that set exceptions are the best way to deal with the constitutionality of mandatory minimum sentences, then where does that leave Judicial discretion? Creating a list of exceptions does not adequately deal with this issue. Judges would not have any discretion. We would be right back to where we currently stand with mandatory minimums. Exceptions create another barrier; another way to limit Judicial discretion.
The question then becomes – is it better to have mandatory minimum sentences with set exceptions or to have mandatory minimum sentences that are all subject to Judicial discretion? The obvious answer would be neither. It is unclear of the current government intends to repeal some of the current mandatory minimums or just provide these two alternatives. Sentencing is an individualized process. Previous decisions provide assistance for us, as lawyers, when we advocate for what the appropriate sentence for our client would be. Not one accused person has the exact same set of facts, criminal record, personal or financial circumstances as another. Judges take all this into account when crafting a sentence. The sentencing principle sections (s. 718) of the Criminal Code outline all the factors to be considered. It seems clear that set exceptions would continue to pose problems for many accused persons and would not reduce the use of mandatory minimums.
The question that remains is to what extent the government will look at other mandatory minimum sentences that the Supreme Court of Canada has not ruled on to date. In a recent article, it seems as though the new legislation that will be introduced in the near future may re-vamp the entire mandatory minimum regime.