Exemptions from Mandatory Minimum Penalties - Recent Developments in Selected Countries


1. Recent developments

It is hard to characterize the various developments that occurred since 2012, when this review was first conducted. There was no situation where the legislator decided to repeal existing mandatory minimum penalties.  However, three trends can be discerned which were obviously related to political orientations, public debate and court decisions. They were: (1) some increases in the use of mandatory minimum penalties (with or without statutory exceptions); (2) partial limitations of the application of mandatory minimum penalties, usually as result of court decisions and sometimes followed by changes in prosecutorial policies (guidelines); and, (3) growing support for presumptive penalties as an alternative to mandatory minimum penalties as a means to structure sentencing. There were also some modest developments in terms of the further articulation of balanced statutory relief provisions.

Increased use of mandatory minimum penalties

Canada, as we know, has increased its use of mandatory penalties by: (1) the  Safe Streets and Communities Act (2012) Footnote 132 that amended the Controlled Drugs and Substances Act to add mandatory minimum penalties for particular drug offences in certain circumstances, and amended the Criminal Code to add mandatory minimum penalties for particular offences involving the sexual exploitation of children; (2) the Tackling Contraband Tobacco Act (2014)Footnote 133 that establish minimum penalties for tobacco contraband offences; and, (3) Bill C-26 (2015)Footnote 134 that amended the Criminal Code to increase the mandatory minimum penalty for a number of Code offences, most of them sexual offences involving children and young persons.

Between 2013 and 2015, New South Wales adopted several amendments to its Crimes (Sentencing Procedure) Act 1999, imposing standard non–parole period for certain firearms offences and sexual offences, creating a new minimum penalty of 8 years and a maximum penalty of life imprisonment without parole for a sexual offence against a child under the age of ten. The States of Queensland and Western Australia added new offences punishable by minimum penalties (sometimes without the possibility of exceptions) or increased the minimum penalties already set by law.

In 2013, the State of Victoria established mandatory terms of imprisonment (with a minimum period of non-eligibility for parole of four years) for adults who commit the offence of intentionally or recklessly causing serious harm to a person in circumstances of gross violence.Footnote 135 In the Northern Territories, in 2013, the government replaced the existing scheme with a new minimum sentencing scheme for violent offencesFootnote 136. Exemptions from the minimum levels of imprisonment are possible if there are “exceptional circumstances”. Other jurisdictions, as was mentioned earlier, also enhanced their mandatory minimum penalty regime, and not just for serious offences.

Limitations to the application of mandatory minimum penalties

Court decisions in Canada and in other countries have set limits on the application of mandatory minimum penalties. In Canada, most notably, the Supreme Court found that the mandatory minimum sentences imposed by s. 95(2)(a)(i) and (ii)of the Criminal Code (regarding certain firearms offences) violated s. 12 of the Charter.Footnote 137Writing for the majority, Chief Justice McLachlin explained that:

“Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.”Footnote 138

In the United States, the United States Supreme Court decision, in Miller v Alabama (2012), declared mandatory sentences of life without parole for juveniles unconstitutional.Footnote 139 It decided that a mandatory sentence of life imprisonment without the possibility of parole is cruel and unusual punishment when the offender is under the age of 18 at the time of the offence.

On the other hand, in some countries, the highest courts have upheld the right of states to set minimum sentences. For example, this was the case in Australia with the High Court decision in Magaming v. The QueenFootnote 140.

Prosecutorial guidelines

The continuing debate over the impact of the application of mandatory minimum penalties has increasingly drawn attention to the role and discretion of prosecutors in applying these schemes.

In the United States, the Supreme Court's decision in Alleyne v. United StatesFootnote 141 heightened the role of prosecutors in determining whether a defendant is subject to a mandatory minimum sentence and held that any fact that increases the statutory mandatory minimum sentence is an element of the crime that must be submitted to the jury and found beyond a reasonable doubt.Footnote 142 This was a very significant development in that it weakened sentencing factors usually presented as binding.

The same year, the U.S. Department of Justice launched the “Attorney General’s Smart on Crime Initiative” with the aim of reducing the use of mandatory minimum sentences for low-level, non-violent drug crimes, and encouraging the use of diversion measures (US Department of Justice, 2013). The Attorney General also changed the federal charging policy regarding mandatory minimums for certain nonviolent, low-level drug offenders (US Attorney General, 2013; 2013a).

In Australia, in 2013, following a Senate review of the operation of mandatory minimum penalties in cases of migrant smuggling, the Attorney General issued some guidelines concerning the charging process in relation to offences carrying these mandatory minimum penalties.

In Canada, following the adoption of the Safe Streets and Communities Act, the Director of Public Prosecutions issued guidelines to provide directions to Crown counsel on the implications of these amendments with respect to the charging process (Director of Public Prosecutions, 2014; 2014a). Among other things, with respect to the mandatory minimum penalties attached to offences involving the sexual exploitation of children, the guidelines explain that: “(…) it will generally be inappropriate for Crown counsel to take a plea to a lesser offence, stay or withdraw a charge, when it is done with the intent of avoiding the imposition of an MMP, where the evidence supports the original charge. In exceptional circumstances deviating may be acceptable and must be done in accordance with the present guideline" (Director of Public Prosecutions, 2014a).

Exceptions and Presumptive Guidelines

Some countries have contributed to the discussion on how exceptions to the application of mandatory minimum penalties should be defined. Most notably, the Sentencing Advisory Council (Victoria) articulated several principles upon which it suggested statutory exceptions to mandatory minimum penalties (Sentencing Advisory Council, 2011). These, defined as “special conditions”, informed the legislation adopted in 2013 by the State of VictoriaFootnote 143.  At home, the Uniform Law Conference of Canada (2013) offered its own suggestion.

In the United States, as mentioned previously, several legislative initiative are being proposed to Congress for broadening the use of existing “safety valves” as it relates to federal drug and other offences. The ultimate fate of these initiatives is still unknown. 

Finally, sentencing guidelines in many jurisdictions are slowly turning into de facto “presumptive” guidelines that allow deviations from the prescribed minimum sentences in some circumstances. At the same time, many observers are paying close attention to the work of the Sentencing Guidelines Council, in England and Wales, including the application of the Council’s guidelines concerning personal mitigating factors and the use of discretion by the courts.

2. Impact of exemptions from mandatory minimum penalties

There is some consistent evidence about the impact of mandatory minimum penalties, but very few jurisdictions have compiled and published data on cases where exceptions were made to the application of these mandatory sentencing provisions. It is obvious that the impact in question can be expected to vary depending on the type of crime or type of offenders to which or to whom they apply, but that kind of systematic analysis does not seem to have been conducted yet.

However, notwithstanding these general observations, there is some research available in the United States on the impact of certain forms of departure from federal sentencing guidelines (e.g., Cappelino and Meringolo, 2014; Divita, 2015; Fischman and Schanzenbach, 2012; Krasnostein and Freiberg, 2013; Ortiz and Spohn, 2014). In particular, departures for substantial assistance, because they require the agreement of the prosecution, seem to be essentially used to encourage or compel offenders to plead guilty and cooperate with the state. The research, as was mentioned before, shows that these exceptions may have allowed the courts to more efficiently expedite a significant number of cases, but also that they introduced an alarming level of unjustifiable sentencing disparity and have affected different groups of offenders differently (Fischman and Schanzenbach, 2012; Divita, 2015).

There appears to be only one situation where the resulting deviations from mandatory minimum penalties for serious crimes may have compromised the stated policy objectives for the adoption of these sentencing schemes. That is the case of South Africa where sentencing decisions based on considering “substantial and compelling circumstances” in rape cases appear to have defeated the stated purpose of the sentencing scheme. As was seen earlier, that situation was corrected by amending the law to specify which factors did not constitute “substantial and compelling circumstances” in rape cases. That situation also appears to be the only case where serious public concerns were expressed about the application of reliefs from mandatory minimum sentences.

3. Exemptions and the prohibition of unjust, arbitrary or inhuman punishment

The possibility for the courts to recognize special circumstances and depart from mandatory minimum penalties to prevent the imposition of unjust sentences tends to be regarded as a necessary way to ensure that mandatory sentencing schemes do not contravene some fundamental human rights principles regarding criminal punishment. The countries reviewed in this paper are bound by the International Covenant on Civil and Political Rights (ICCPR), in particular articles 7 (Prohibition of inhuman and degrading treatment) and 9 (Prohibition of arbitrary detention). Some, like the United Kingdom, are also bound by the European Convention on Human Rights, in particular Article 3 which prohibits “inhuman or degrading treatment” and Article 5 prohibiting arbitrary detention. Several of them have their own human rights law which invariably prohibit arbitrary, inhuman or unjust punishments. In several instances, the question arose of whether mandatory minimum sentences are essentially in contravention of these human rights principles. In such instances, the fact that there was a possibility for the courts to depart from mandatory minimum penalties in some limited circumstance was deemed directly relevant to the discussion.

The United Nations Human Rights Committee has consistently held that, with respect to Article 9 of the ICCPR, the notion of “arbitrariness” must not be equated with “against the law” but be interpreted more broadly to include such elements as inappropriateness and injustice.  In that sense, as some scholars have argued, “apenalty which might be justified for a serious crime could constitute inhuman treatment or punishment if imposed for a petty offence. To this extent, at least, inhuman treatment is a relative notion” (Jacobs and White, 1996: 51).

That whole discussion is certainly relevant to Canada in the context of the guarantees offered by the Canadian Charter of Rights and Freedom Article 9 (the right not to be arbitrarily detained or imprisoned) and Article 7 (the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice). In 2015, in R v. NurFootnote 144the Supreme Court declared that the mandatory minimum sentences imposed by s. 95(2)(a)(i) and (ii)of the Criminal Code violate s. 12 of the Charter and are null and void under s. 52 of the Constitution Act, 1982. Also, before the Supreme Court, is the case of Lloyd v. The Queen in which the constitutionality of a minimum sentence for a drug offence (with a prior conviction) is being challenged.

United Kingdom

In the UK, the Human Rights Act 1998 integrating the European Convention also prohibits “inhuman or degrading treatment” and “arbitrary detention.”Footnote 145  The question of whether mandatory penalties may contravene the Convention has been raised in at least two cases: R v Offen and OthersFootnote 146 and R v Rehman and WoodFootnote 147. In the first case, the court considered the requirement to impose a life sentence under section 2 of the Crime (Sentences) Act 1997 when a person is convicted for a second time of a serious offence (unless there are exceptional circumstances).  In the second case, the Court of Appeal was dealing with the mandatory minimum penalty required under Section 51A of the Firearms Act 1968 (inserted in the Act by section 287 of the Criminal Justice Act 2003. One of the appellants had submitted that section 51A required the court to impose sentences that constituted inhuman and degrading treatment and punishment in contravention of Article 3 of the European Convention on Human Rights, and that such sentences could result in arbitrary and disproportionate deprivation of liberty in violation of Article 5 or articles 5 and 3 when read together.  The Court did not regard that as “being a situation where it is necessary to read the section down (i.e., 51A), relying on section 3 of the Human Rights Act 1998 so as to comply with the Convention.”

The Court’s reasoning was the mandatory minimum penalty could result in an arbitrary and disproportionate sentence if there was no possibility for the court to consider “exceptional circumstances”, most particularly if the circumstances involved were such that it “would mean that to impose five years’ imprisonment would result in an arbitrary and disproportionate sentence.”Footnote 148 

In July 2013, the Grand Chamber of the European Court of Human Rights ruled in the case of Vinter and others v UK that whole life orders of imprisonment violated Article 3 of the European Convention of Human Rights which prohibits inhuman and degrading treatment and torture. This has been successfully challenged. On 18 February 2014, the Court of Appeal held that whole life sentences imposed pursuant to section 269 of the Criminal Justice Act 2003 were not incompatible with Article 3 of the European Convention on Human Rights and judges were to continue to impose them in exceptional circumstances.Footnote 149

United States

In the United States, the Bill of Rights (specifically, the 8th Amendment to the Constitution) prohibits the infliction of “cruel and unusual punishment.” The United States Supreme Court, in deciding whether or not a particular punishment is cruel and unusual, has relied on principles articulated in Furman v Georgia.Footnote 150 The punishment must not be: by its severity, degrading to human dignity; a severe punishment that is obviously inflicted in wholly arbitrary fashion; a severe punishment that is clearly and totally rejected throughout society; a severe punishment that is patently unnecessary. The latter principle is frequently quoted with respect to mandatory minimum penalties. The argument often revolves around whether the mandatory severe punishment may be necessary to deter offenders or to protect society and are therefore justified. However, as was mentioned earlier, in Miller v. Alabama, the United States Supreme Court declared unconstitutional mandatory sentences of life imprisonment without parole when the offender is under the age of 18 at the time of committing the offence.Footnote 151 Such sentences were deemed to constitute cruel and unusual punishment.

New Zealand

In New Zealand, section 9 of the New Zealand Human Rights Act 1990 establishes the “right not to be subjected to torture or cruel treatment” as follows: “Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.”  Section 22 affirms that “(e)veryone has the right not to be arbitrarily arrested or detained,” and section 27 affirms that “(e)very person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations or interests protected or recognized by law.”  These rights are not absolute. Section 5 expressly provides that the rights conferred by the Act may be limited by law to the extent that this can be “demonstrably justified in a free and democratic society.”

The terms “disproportionately severe” (in Section 9) create a requirement for the courts to balance mandatory penalties required for the protection of the public through the imprisonment of dangerous offenders, are the human rights provisions which limit arbitrary and excessive punishment and detention.

South Africa

In South Africa, the Constitution of South Africa 1996 (Chapter 2 – Bill of Rights) refers to the right “not to be deprived of freedom arbitrarily or without just cause” (12(1)(a)), and the right “not to be treated or punished in a cruel, inhuman or degrading way” (12(1)(e))(a non-derogable right).

Article 36 (limitation of rights) of the Bill of Rights, stipulates that:

1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:

  1. the nature of the right;
  2. the importance of the purpose of the limitation;
  3. the nature and extent of the limitation;
  4. the relation between the limitation and its purpose; and
  5. less restrictive means to achieve the purpose.

The Constitutional Court found that “proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading.”Footnote 152 In Dodo v S, the court explained that a sentence would be “cruel, inhuman or degrading” if its length was grossly disproportionate, but also that the court can impose a lesser sentence well before gross disproportionality is reached when “substantial and compelling circumstances” exist, based on the interpretation of that test specified by the Supreme Court of Appeal in S v Malgas.Footnote 153 In other words, the fact that a departure from the mandatory minimum sentence is possible in certain circumstances is what makes it possible to avoid gross disproportionate penalties.

4. Policy options

Strict mandatory penalties, whether or not they can in fact deliver on the policy objectives that motivated their adoption in the first place, inherently hold the risk that they may be applied in cases for which they were never intended or in circumstances where they will amount to an unjust sentence.

It is certainly possible, without denying the policy objectives pursued through the adoption of mandatory minimum penalties, to adopt a sentencing scheme where these penalties are affirmed as essentially presumptive rather than a strict framework from which deviations are not possible. There are already some very viable examples of such schemes.

When reducing or repealing mandatory minimum is not a possibility, a politically viable strategy for reducing their detrimental impact and preventing injustices is to permit the courts to sentence an offender below a statutory minimum when certain criteria are met. The issue then becomes one of identifying what these criteria (or thresholds) should be. However, as demonstrated by the experience of other countries, it is possible to craft some exemption provisions that would operate clearly and predictably, and in harmony with the balance of the sentencing provisions of the Criminal Code. The Uniform Law Conference of Canada (2013) has already made some concrete suggestions towards that end.

The main argument in favour of creating exceptions to the application of mandatory minimum penalties remains the need to avoid unjust and arbitrary punishment. As was repeatedly articulated by various courts, the principle of proportionality in sentencing is at the centre of that concern: “(p)roportionality is the sine qua non condition of a just sanction”Footnote 154. Proportionality implies ensuring that a sentence reflects the gravity of offence, but also that “it does not exceed what is appropriate, given the moral blameworthiness of the offender”.Footnote 155

Several jurisdictions have shown that it is possible and useful to introduce exceptions to mandatory minimum penalties that are based on criteria that set a high threshold for any departure from the legislated mandatory minimum penalty. If necessary, it is also possible to set limits on the interpretation of these criteria.

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