Introduction
In recent years, crime rates have been declining in Western countries, including Canada, which experienced a 28% drop in crime from 2006 to 2016. Drug offences reported by police saw an 11% reduction during the same timeframe, with cannabis trafficking and production dropping significantly by 39%. Despite these reductions, Canada's incarceration rates remain stable, largely due to the increased imposition of mandatory minimum sentences (MMS) included in the Criminal Code and the Controlled Drugs and Substances Act (CDSA). Marijuana producers face MMS of two to three years, indicating that these sentences may be influencing stable incarceration levels despite reduced crime rates.
Legislative and Political Context
On November 4, 2015, Justin Trudeau's Liberal government took office, succeeding Stephen Harper’s Conservative administration. Upcoming legislative changes have yet to address the issues stemming from the rising number of MMS in drug-related offences. Justice Minister Jodie Wilson-Raybould has voiced intentions to potentially repeal many of these sentences, but progress has been slow.
Judicial Challenges to Mandatory Minimum Sentences
With more than fifty judicial cases contesting various provisions of mandatory minimum sentences, approximately half of them are deemed unconstitutional under Section 12 of the Canadian Charter of Rights and Freedoms, which prohibits cruel and unusual punishment. This trend highlights the costly and time-consuming process courts face when addressing the constitutionality and merit of these laws.
Problems with Mandatory Minimums
Several noteworthy problems arise from the mandatory minimum sentencing regime:
Limited Impact on Crime Rates: Research on the effectiveness of MMS, particularly from the U.S. experience and “three-strikes” legislation, reveals that MMS do not significantly deter crime. This perspective argues that even with more severe penalties, factors influencing crime rates—including social, economic, and other justice policies—play a larger role.
Deterrence Theory: Politicians often justify MMS as a deterrent strategy despite the complexity of deterrence evidence, which indicates that crime deterrent policies rely more on the certainty rather than the severity of punishment—where the perception of being apprehended serves as a stronger deterrent than punishment severity.
Marginal Deterrence Issues: The theory of marginal deterrence—wherein an additional deterrent effect is sought from mandatory sentences—often encounters challenges in isolating variables that directly correlate MMS with crime reduction. Factors such as public initiatives or the existence of other penalties complicate the evaluation of MMS' effectiveness.
Historical Development of Mandatory Minimums in Canada
Early Legislation: Canada’s initial criminal laws did not include MMS, but some provisions were gradually introduced. By 1922, the Narcotic Control Act mandated a minimum six-month sentence for possession.
1960 Revisions: The updated Narcotic Control Act instituted a seven-year minimum for importing narcotics, which faced successful constitutional challenges soon after the enactment of the Canadian Charter of Rights and Freedoms.
1996 - CDSA Enactment: The new CDSA initially excluded MMS but expanded mandatory penalties with the Safe Streets and Communities Act in 2012, expanding the range of offences subjected to MMS, particularly for drug trafficking and production.
Cruel and Unusual Punishment
In R. v. Smith (1987), the Supreme Court effectively addressed mandatory minimum sentences, ruling that the seven-year minimum for importing a prohibited substance was cruel and unusual because it applied to an excessively broad category of behaviour, thereby failing the standards set forth in Section 12 of the Charter.
Major Contributions from R. v. Smith:
The definition of ‘grossly disproportionate’ was established, which indicates a sentence that significantly outrages standards of decency.
The introduction of hypothetical scenarios for adjudication showed that even if the punishment seemed acceptable under specific case facts, it could be unconstitutional under broader considerations.
The Court laid out parameters that made it difficult for punitive laws to sustain justification under Section 1 of the Charter, specifically around minimal impairment that results in excessive punishment.
Recent Developments in Case Law
Cases such as R. v. Nur (2015) and R. v. Lloyd (2016) amplified the understanding of when mandatory minimum sentences violate the Charter, particularly regarding drug laws. The courts exhibited a renewed willingness to examine the implications of MMS on various offenders through hypothetical inquiries, leading to rulings that emphasized the necessity of proportionality in sentencing.
Key Takeaways from Recent Cases:
The Supreme Court favored hypothetical assessments that include a range of real-life conduct assessed against MMS.
There has been a judicial trend towards invalidating MMS that broadly affect a diverse population without consideration for severity or context.
Most mandatory minimum provisions face constitutional scrutiny under Section 12 and cannot be easily saved under Section 1 of the Charter due to excess severity or the broad net cast by the laws.
Conclusion
The existing body of post-Nur and Lloyd decisions highlights a significant vulnerability in various CDSA provisions as twenty-one cases contested their validity, with half finding provisions unconstitutional. The courts have identified key areas where mandatory minimum sentences fail in their purpose and noted their detrimental impact on offenders and society alike. A thorough review and reconsideration of the various offences carrying mandatory minimums is warranted to address both constitutional concerns and the accompanying social injustices.