Mandatory Minimum Penalties in Canada: Analysis and Annotated Bibliography

2.0 Debate

Mandatory minimum punishments have been debated in political, academic, advocacy, and legal circles. Generally, supporters of MMPs cite the need to limit judicial discretion, respond to public opinion concerning crime, address police-reported crime problems, and reduce sentencing disparity. Critics of MMPs highlight the ineffectiveness of MMPs as crime control policy and describe a host of unintended consequences that include increased costs, the muting of proportionality in sentencing, a reduction in judicial discretion, a transfer of power from a relatively open sentencing process to more hidden bargaining led by prosecutors and defence counsel, and the disproportionate application of MMPs to minority groups. Academics and representatives of non-government organizations have argued that MMPs cost too much and divert resources from alternative programs that effectively prevent crime (Mangat 2014; CCPA 2012). This section will highlight some of the arguments for and against MMPs drawn from the literature.

2.1 Arguments Supporting MMPs

Legislative arguments for MMPs are commonly coloured by utilitarian goals (Fearn 2011) that may include: deterrence; incapacitation; and retribution. These types of sentences are used as mechanisms to protect the public and to control sentencing disparity.

2.1.1 Sentencing Disparity

Proponents of MMPs argue that removing judicial discretion leads to more equality in the sentencing process. Decades of sentencing research shows differences in sentences handed down to members of various groups based on intersectional factors such as race, ethnicity, gender, etc.; the MMP approach is intended to erase common sentencing disparities by having a predetermined sentence for certain crimes (Fearn 2011). Regardless of cultural, economic, or social differences, everyone receives the same minimum sentence when they commit an MMP offence.

2.1.2 Reducing Judicial Discretion

There has been a longstanding and common history of politicians calling for limits on judicial discretion in the criminal sentencing process (Mangat 2014; Campbell 2011). For instance, advocates of MMPs note that maximum and minimum limits on sentencing ensures consistency in sentencing and prevents defendants and their lawyers from ‘judge-shopping’ (Caylor and Beaulne 2014).

2.1.3 Exercising Public Will in a Democracy

Public opinion is often cited as one of the major reasons for politicians to craft MMPs, however the public’s view on sentencing is often mixed. There is some evidence that the Canadian public supports strong penalties for some types of crime.  However, the public’s perception that sentences are lenient is not tantamount to support for MMPs. In a 2005 poll, 74% of respondents expressed the view that sentencing is too lenient (Roberts, Crutcher and Verbrugge 2007: 83). More than half of the sample (58%) viewed MMPs as a good idea (Roberts, Crutcher and Verbrugge 2007: 90). Moreover, if certain types of offences are considered, there is general public support in Canada, Britain, and the USA for harsh penalties/mandatory minimums for homicide (Roberts, Crutcher and Verbrugge 2007; Anand and Roach 2010). Also according to public opinion research in Canada, over half (57%) of surveyed Canadians believe that mandatory minimums “often or sometimes result in the imposition of an unfair sentence” while 75% expressed a strong support for judicial discretion (Roberts, Crutcher and Verbrugge 2007: 96).

2.2 Arguments against MMPs

Critics of MMPs have argued that some penalties violate the Charter, that MMPs are an expensive and ineffective way to control crime, that by removing judicial discretion, MMPs make sentencing less transparent, and that MMPs disproportionately affect racial minorities, such as Indigenous Canadians. 

2.2.1 Constitutional Concerns

In this report we do not review the state of common law and constitutional law concerning MMPs. However, there have been several constitutional challenges to MMPs that specifically cite sections 7 and 12 of the Charter. For example, in 2008, the Supreme Court ruled on the R v. Ferguson case which upheld MMPs as constitutional, but concluded that constitutional exemptions are not an appropriate remedy for laws that violate section 12 of the Charter (Berger 2009). The court ruled that an appropriate response would be to strike down the law (Berger 2009; Dufraimont 2008).

Other MMP cases have come before Canadian courts to address concerns about constitutional and larger historical issues. In January 2016, the courts heard R v. Lloyd, whichraised concerns regarding mandatory minimum penalties for drug offences, Indigenous heritage, and the impact of colonialism. Last year in R. v. Nur 2015 SCC 15, a majority of the court found mandatory minimum penalties for firearm offences to have the potential to be grossly disproportionate. Specifically, the decision stated that “mandatory minimums imposed by s. 95(2)(a) [imprisonment for three years for first time offenders, and five years for repeat offenders] are inconsistent with s. 12 of the Charter and are therefore declared of no force or effect under s. 52 of the Constitution Act, 1982.”

Further, the victim fine surcharge has fuelled debate about whether it is a sentence, and whether/how such surcharges should be applied (see R. v. Michael 2014 Carswell Ont 10487; R. v. Cloud 2014 QCCQ 464; R. v. Javier 2014 ONCJ 361; R. v. Flaro 2014 ONCJ 2). There has been debate about how to deal with people unable to pay such fees such as requiring community service in lieu of paying.

2.2.2 MMPs are Ineffective at Deterring Crime

Some of the evidence found suggests that harsh penalties – like MMPs – are ineffective at deterring crime (Radelet and Akers 1996; Doob, Webster and Gartner 2014). Tonry (1996: 134) captures the current state of MMPs in North America when he writes:

The greatest gap between knowledge and policy in American sentencing concerns mandatory penalties. Experienced practitioners and social science researchers have long agreed, for practical and policy reasons […], that mandatory penalties are a bad idea. That is why nearly every authoritative nonpartisan organization that has considered the subject […has] repealed most of the mandatory penalty provisions [….]

Even when there is a drop in crime in jurisdictions with MMPs, careful analysis often shows that reduction in crime started before the implementation of MMPs and that most crime trends are indicative of large nation-wide shifts in offending (see for instance Piquero 2005).

2.2.3 The Disappearance of Proportionality in Sentencing

Legal scholars, judges and academics argue that MMPs are a one-size-fits-all model that conflicts with the sentencing guidelines and the principles of proportionality in the Criminal Code. These principles require judges to consider the gravity of the crime and the degree of responsibility of the offender when handing down a sentence (Cassell and Luna 2011; Mangat 2014; Pomerance 2013; Sylvestre 2013), as well as the background of the offender (especially in the case of Indigenous peoples).

MMPs are effective at muting various legal principles, especially proportionality (Doob, Webster, and Gartner 2014; Paciocco 2015). The starting point – the minimum – tends not to be scrutinized, which Roach (2001: 403) argues to be “a just distribution of punishment while being agnostic about the justness of the starting point or anchor for their finely calibrated scale.” The tension with proportionately has been recognized by the Supreme Court of Canada in R. v. Wust [2000] S.C.J. No. 19 at para 18 & 22:

Mandatory minimum sentences are not the norm in this country, and they depart from the general principles of sentencing expressed in the Code, in the case law, and in the literature on sentencing. In particular, they often detract from what Parliament has expressed as the fundamental principle of sentencing in s. 718.1 of the Code: the principle of proportionality [….]

Consequently, it is important to interpret legislation which deals, directly and indirectly, with mandatory minimum sentences, in a manner that is consistent with general principles of sentencing, and that does not offend the integrity of the criminal justice system. This is entirely possible in this case, and, in my view, such an approach reflects the intention of Parliament that all sentences be administered consistently, except to the limited extent required to give effect to a mandatory minimum.

2.2.4 Exceptions for the Application of Mandatory Penalties

Unlike other jurisdictions with mandatory minimum penalties, Canada does not have a safety valve or a provision for judicial discretion in certain instances (Roberts, Crutcher and Verbrugge 2007). These safety valves can allow judges to use alternatives to MMP legislation in those cases where they feel the MMP cannot be fairly or justly applied. The idea of a safety valve is important as it permits the acknowledgement of variation in the severity of criminal conduct at the time of sentencing.

Politicians in favour of MMPs often cite public opinion polls showing strong support for harsh penalties. However, more nuanced reviews of public opinion often reveal a desire for exemptions in specific cases, which can be considered support for proportionality and judicial discretion. When asked a general question on MMPs in Canada, almost all of those polled supported a mandatory sentence of life imprisonment for murder; however, when the circumstances of Robert Latimer – originally sentenced to life imprisonment for the murder of his disabled daughter – were described, nearly 75% of those polled voted against imposing a mandatory sentence of life imprisonment (Mangat 2014: 24).

2.2.5 Costs of MMPs

A number of reports focus on the costs of MMPs including increased court costs, increased correctional costs, and hard-to-calculate social costs. This is especially the case when resources are diverted away from programs that aim to prevent crime (Bernstein 2013; Mangat 2014; CCPA 2012). In 2013, the Parliamentary Budget Officer noted that since 2002, per capita spending, in real terms, had increased 23%. During the same period, Canada’s crime rate declined 23% (Story and Yalkin 2013: 1). The reason for the increased costs are not just because more people are going to prison. When mandatory minimum penalties are on the table, there is some evidence that people are more likely to go to trial rather than plead guilty because the stakes are high (Pomerance 2013). Also, cases are taking longer to complete (Gabor 2001; Tonry 2009) and people are being sentenced to longer prison terms (Gabor and Crutcher 2002).

2.2.6 Racial Disparity

MMPs disproportionally affect disadvantaged persons and members of minority groups, such as Indigenous Canadians (CCPA 2012; Mangat 2014; Mauer 2010; CCJS n.d; Tonry, 2009). Mandatory minimums do not allow judges to consider the role of social context in criminal sentencing and, as a result, vulnerable people may be adversely and disproportionately impacted by MMPs (Farrell 2003; Lawrence and Williams 2006; Oberdorfer 2003; Spohn 2015; Tonry 2009). Chartrand argues that the application of minimum imprisonment penalties on Aboriginal peoples is contrary to the stated penal objectives of the Supreme Court of Canada in R. v. Gladue which recognized that a different analysis and approach is required by judges when sentencing Aboriginal offenders, one ‘... which may specifically make imprisonment a less appropriate or less useful sanction’.” (2001: 450).

2.2.7 Displacing Discretion and Hiding Justice

Tonry (1996:135) notes that “mandatory penalty laws shift power from judges to prosecutors.” This means that MMPs contribute to a growth of prosecutorial powers (Mauer 2010). In a system where judges are granted discretion to sentence, the sentencing process is open and transparent; judges clearly state their reasons for specific penalties. When power is transferred to prosecutors (who decide what to charge individuals with), the decision-making process lacks the same level of openness and transparency.

Prosecutors can choose the likely punishment by choosing which offence to charge, the method of proceeding, and influence the course of justice by plea bargaining/negotiating with defence counsel. In shifting discretion, judges and legal scholars have noted that MMPs undermine trust in the judiciary and reduce transparency by shifting power to the prosecutor’s office (Gabor and Crutcher 2002).  For instance, prosecutors can still choose how to proceed with a case (summary or indictment) and prosecutors can still offer plea deals to lesser or included offences, or they can include additional offences – so the discretion of prosecutors determines who gets an MMP or dampens the possible application of the MMP by altering the sentencing range (Bjerk 2005). This means that even when there is evidence to support a charge carrying an MMP, prosecutors can sidestep this process (Tonry 1996, 2009), leaving the MMP “at the mercy of those who apply them” (Ulmer 2012: 8). On one hand, this may allow prosecutors to have a role in MMPs if the potential sentence is seen as too harsh (Mauer 2010). On the other hand, giving discretion to prosecutors, and not to judges, challenges the commitment of the justice process to open and impartial determinations of sentences and compromises the plea bargaining process (Paciocco 2015; Tonry 1996, 2009).

2.2.8 MMPs Grounded in Politics

Most of the recent academic discussions characterize the growth in MMPs as evidence of the increasingly politically charged nature of policy development where reforms have come not from an empirically or evidence-based need for more punitive policy, but from political maneuvering (Morgan, 2000; Pomerance 2013; Ulmer 2012). The political push for MMPs is often framed as a means of “protecting the public” or ensuring “truth/equality in sentencing.”

Paciocco (2015: 174) has observed that these “minimum sentences are enacted by governments not because of a commitment to sound justice policy but rather to create political advantage by taking ‘tough on crime’ measures.” The political support of punitive policy relies on and advances political and symbolic goals (Tonry 1996) over crime control goals. This leads to a number of unintended consequences (see Tonry 2009). Some of the consequences that we highlight include: increased costs, reduced judicial discretion, less transparency in justice and legal decision-making, an incentivized plea process, and disproportionally impacted racialized populations.