Certain offences are subject to mandatory minimum penalties in Canada. This means there is legislation that predetermines what minimum sentence must be imposed, rather than leaving it to the sentencing judge’s discretion.
However, the Canadian Charter of Rights and Freedoms (the “Charter”) gives everyone the right not to be subjected to “any cruel and unusual treatment or punishment”. So, can a mandatory minimum penalty constitute such a punishment?
This article reviews the concept of a mandatory minimum penalty, along with a recent decision of the Supreme Court of Canada in which a man that pled guilty to firearms offences argued that the minimum mandatory sentence was a cruel and unusual punishment.
What is a mandatory minimum penalty?
A minimum mandatory penalty requires judges to impose a specific type and minimum length of sentence or amount of penalty to an offender upon conviction for particular criminal offences. This may be a specific term of imprisonment or a fine.
Why are mandatory minimum penalties controversial?
Mandatory minimum penalties are controversial because they restrict the discretion of sentencing judges. As we have explained in a previous article, the Code contains a range of objectives and principles that judges consider when deciding upon an appropriate sentence. Some of these factors may support a more lenient sentence in a particular case, such as the principle of restraint. However, where there is a legislated mandatory minimum penalty, the hands of the judge are tied.
Politicians may decide to legislate for mandatory minimum penalties to respond to a public perception that specific types of offences are particularly bad for society or to appear “tough on crime”.
However, Canadian courts seem to be moving away from mandatory minimum penalties. For example, as we previously reported, a recent Act (the “Act”) to amend the Criminal Code and the Controlled Drugs and Substances Act repealed the mandatory minimum penalties for some offences. Despite this, many mandatory minimum sentences do still apply.
How do courts decide whether a mandatory minimum penalty conflicts with the Charter?
Section 12 of the Charter protects people from being subjected to cruel and unusual punishment.
To determine whether a minimum mandatory penalty violates this, the courts apply a two-stage test which asks:
- What would an appropriate sentence be in light of the objectives and principles of sentencing?; and
- Is the mandatory minimum penalty “grossly disproportionate” to this sentence?
The offender can either argue that their sentence or that of a hypothetical person in a reasonably foreseeable scenario was grossly disproportionate.
Man discharged firearm and challenged the mandatory minimum penalty
In the recent case of R. v Hills, a man pled guilty to discharging a firearm into or at a home pursuant to section 244.2(1)(a) of the Code.
At the time when the act occurred, the Code stipulated a mandatory minimum penalty of four years imprisonment. Interestingly, the Act referred to above has since abolished the mandatory minimum penalty for this offence. However, the mandatory minimum penalty applied at the time of sentencing, therefore, the accused commenced an action to challenge the minimum penalty, arguing that it was cruel and unusual.
The sentencing judge agreed with the accused and imposed a three-and-a-half-year sentence. This decision was appealed up to the Supreme Court of Canada.
An appropriate sentence for the accused’s hypothetical scenario was not imprisonment
The accused argued that in the hypothetical scenario of a young person intentionally discharging an air-powered pistol at a residence that is incapable of piercing the walls, the mandatory minimum penalty of four years imprisonment would be grossly disproportionate to an appropriate sentence based on the Code’s sentencing principles.
The majority of the Supreme Court judges agreed that this was a reasonably foreseeable scenario because section 244.2(1)(a) of the Code simply required the offender to discharge a firearm at a place. Expert evidence showed that air-powered rifles or pistols, including BB and paintball guns, could constitute a “firearm” for the purposes of the Code, despite being incapable of penetrating a residential wall.
The Court decided that an appropriate sentence in this hypothetical scenario would not involve imprisonment. Given the lower risk posed by these types of firearms, as well as youth as a mitigating factor, the Court found that an appropriate sentence would have been a suspended sentence of up to one year’s probation.
The mandatory minimum penalty was grossly disproportionate
The majority of the Supreme Court said that:
“It would “shock the conscience” of Canadians to learn that an offender can receive four years of imprisonment for an activity that poses more or less the same risk to the public as throwing a stone through the window of a residential home.”
Given that the mandatory minimum penalty applied to conduct that presented little danger to the public, the Court decided that the mandatory minimum penalty for the offence was grossly disproportionate to the appropriate sentence.
The Crown did not argue that the mandatory minimum penalty could be saved by section 1 of the Charter, which allows rights to be subjected to reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society. Therefore, the Court declared the mandatory minimum penalty of no force or effect and reinstated the three-and-a-half-year sentence.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Representation for Firearms Charges
The criminal defence lawyers at Barrison Law have experience defending many types of firearms charges. Given that many offences attract mandatory minimum sentences, anyone who has been accused of such an offence requires a sufficient defence. We represent clients across the Durham and Central East Regions of Ontario and work closely with them to ensure that we have a comprehensive understanding of their circumstances so that we can present their cases in the best possible light.
Please call us at 905-404-1947 or reach out to us online for a free initial consultation. To help us act fast and protect your rights, we offer 24-hour phone service.