Senior Canadian lawyers call for exemptions to mandatory minimum sentences

Mandatory minimum sentences have found favour with legislators around the globe, and Canada is no exception. However, a group of senior Canadian lawyers is recommending that there be statutory exemptions to such sentences.

We are at the anniversary of new mandatory minimum prison sentences in Canada for certain crimes, including particular drug offences and gun offences. Criminal defence lawyers have long criticized mandatory minimums. Nevertheless, Canada’s Justice Minister defends the approach and is resisting calls for exemptions.

Mandatory minimum sentences are also being challenged in the courts. A British Columbia Provincial Court judge has ruled that a mandatory minimum prison term was unconstitutional in a case where a man with no criminal record was convicted of a gun offence.

Lawyers’ group criticizes mandatory minimum sentencing at meeting in Victoria

The Uniform Law Conference of Canada, a group of senior lawyers from across the country – including both criminal defence counsel and Crown prosecutors – recommended exemptions to mandatory minimum sentences at a recent meeting in Victoria, British Columbia.

The group, which argues that mandatory minimum sentences fail to allow for the proper exercise of judicial discretion, noted that unlike other Commonwealth countries, Canada does not have statutory exemptions to the minimums.  Those exemptions in other countries can be invoked to remedy the unjust application of mandatory minimums.

The Lawyers Weekly, a national newspaper serving the legal profession, reported that federal Justice Minister Peter MacKay opposes such exemptions and defends his government’s implementation of mandatory minimum sentencing for offences that are considered “abhorrent and corrosive to society.”   

British Columbia judge rules mandatory minimum sentence for gun offence unconstitutional

Mandatory minimum sentences are also a concern for some Canadian judges. A British Columbia Provincial Court judge ruled that a three-year mandatory minimum prison sentence for a gun offence violates the Canadian Charter of Rights and Freedoms, in particular the principles of fundamental justice, and the right to be free of cruel and unusual punishment. The judge found that the minimum was “harsh, or excessive, or even unfit for this individual applicant.”  The accused, who had been convicted of possession of a loaded and prohibited firearm, had no criminal record, was making child support payments, and was employed as an apprentice electrician.

More recently, a Manitoba judge also found the minimums offended the Charter of Rights for similar reasons, and also added that they offend the right to equal treatment before the law.

Anyone arrested or charged in relation to a criminal offence – including a gun or drug offence – is strongly advised to retain defence counsel. At all stages of the criminal justice process, from arrest through trial (and sentencing, where relevant), an experienced lawyer can protect the interests of the accused and mount a strong defence, based on the unique facts of the case. The existence of mandatory minimum sentences for certain offences increases the importance of securing proper legal representation.

Ann Pollak, British Columbia & Yukon Criminal Defence Lawyer