Mandatory minimum sentences and access to justice outcomes | Serena Eshaghurshan
Tuesday, June 29, 2021 @ 12:11 PM | By Serena Eshaghurshan
What are mandatory minimum sentences?
A mandatory minimum sentence refers to an offence that carries a mandatory penalty pursuant to the Criminal Code. Mandatory minimum sentences preclude judicial discretion in sentencing; a fact finder is legally mandated to impose at least the minimum sentence.
The discourse surrounding mandatory minimum sentences is polarizing, political and complex. On one hand, it is easy to appreciate such rigid sentencing regimes, especially for particularly heinous offences. On the other hand, mandatory minimum sentences fail to adequately consider critical antecedents encapsulating an offence, which is counterintuitive to the theoretical underpinnings of our justice system.
Section 718 of the Criminal Code contains sentencing objectives, which are denouncement, deterrence, separation, rehabilitation, reparations and responsibility. Section 718.1 outlines the fundamental principle of sentencing:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [Emphasis added.]
Mandatory minimum sentences are often thought to serve as an incentive to not engage in criminal behaviour. However, research suggests otherwise.
It has been found that sentencing minimums do not deter criminality or anti-social behaviour (see National Association of Women in Law, “Stop Excusing Violence Against Women,” p. 31). This is because one would require knowledge about mandatory minimum sentences and criminal law, which is atypical for the average person.
A lack of tangible legal knowledge proves to be detrimental, particularly in jury cases. In the highly controversial case of R. v. Latimer 2001 SCC 1, a father killed his severely disabled daughter to end her suffering. While he was convicted of murder, the jury was not sufficiently informed about sentencing ramifications: “… members of the jury returned a murder verdict and thereafter expressed shock and dismay when they learned that the mandatory penalty was to be life imprisonment” (“Stop Excusing Violence Against Women,” p. 31).
Mandatory minimum sentences are not associated with a reduced rate of recidivism. Rather, “lengthier periods of incarceration may actually increase the likelihood of recidivism among offenders” (see the Canadian Criminal Justice Association’s “Position Paper: Mandatory Minimum Sentences.”) Thus, sentencing minimums do not achieve deterrence pursuant to s. 718(b) of the Code.
It has been argued that sentencing minimums run afoul to several Charter principles, as they fail to consider critical factors at play in a particular offence (“Stop Excusing Violence Against Women,” p.33). Of particular importance are ss. 7, 9 and 12.
Section 7 guarantees the right to life, liberty and security of persons “and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The imposition of a mandatory sentence that fails to consider critical antecedents or a particular offender’s moral culpability may constitute as an unjustified deprivation of liberty.
Section 9 protects against arbitrary detainment or punishment. Imposing a sentencing minimum that fails to consider individual circumstances at play is arguably arbitrary, as it paints all offenders of a particular offence with the same brush. Likewise, the failure to consider antecedents and individual moral culpability arguably constitutes as cruel, which infringes s. 12 of the Charter.
Adverse access to justice outcomes
Mandatory minimum sentences pose a serious risk to equitable access to justice outcomes. First, the balance of power is tipped in favour of the government, as they “enhance the Crown’s bargaining position and put the accused in a very vulnerable position” (“Stop Excusing Violence Against Women,” p. 37). Mandatory minimum sentences result in fewer plea deals, which places additional strain on an already overburdened and overstressed legal system.
The effects of sentencing minimums are not isolated to a particular offender. The loss of an incarcerated parent to a child is devastating. The adverse outcomes are not limited to the present time, but rather “in more complex and long-term ways that influence whether or not they are likely to become offenders themselves” (see British Columbia Civil Liberties Association paper, “More Than We Can Afford: The Costs of Mandatory Minimum Sentencing,” by Raji Mangat).
The disproportionate rate of incarceration of marginalized populations poses a significant access to justice concern. This is of particular concern for the Indigenous population, as they continue to face systemic barriers in accessing equitable access to justice outcomes.
As of January 2020, Indigenous peoples constitute only five per cent of the general population, but 30 per cent of the federal prison population. Reasons for such disparity include colonialism, the detrimental impact of the residential school system, systemic discrimination, poverty and intergenerational trauma.
To address the over-representation of Indigenous offenders, s. 718.2(e) of the Criminal Code was created. Section 718.2(e) mandates a court to examine an Indigenous offender’s circumstances and to determine whether alternative sanctions to imprisonment are reasonable in the circumstances.
Section 718.2(e) was interpreted by the Supreme Court of Canada in R. v. Gladue  1 S.C.R. 688, where the court created a sentencing framework for Indigenous offenders. Such framework considers “the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts” and “the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.” Judicial notice may be taken regarding the “systemic and background factors affecting aboriginal people.”
Such sentiment was affirmed and echoed in R. v. Ipeelee  1 S.C.R. 433.
In theory, the Gladue principles play an instrumental role in addressing the systemic overincarceration rate of Indigenous peoples. However, theoretical underpinnings and practical ramifications are not the same thing. In cases of mandatory minimum sentences, the impact of Gladue is limited, as a sentencing judge cannot impose a sentence that is less than the minimum.
The lack of judicial discretion is partnered with a shift in the locus of power to the Crown prosecutor (see Library of Parliament background paper, “Indigenous People and Sentencing in Canada,” Graeme McConnell, p. 14). As per R. v. Anderson  2 S.C.R.167, Crown prosecutors are not mandated to consider an Indigenous person’s status when deciding to pursue a mandatory minimum. Unlike a judicial decision (which can be appealed), prosecutorial discretion can only be challenged if there is an abuse of process (see “Defining Prosecutorial Discretion (With an Invitation to the Court to Re-define Abuse of Process),” Alice Woolley).
In conclusion, mandatory minimum sentences pose a significant access to justice issue. Its very nature is incongruent with the sentencing principles ascribed in s. 718, and arguably infringes on several key Charter principles. Such sentences disproportionately impact marginalized populations, as judicial discretion is limited, and a robust analysis of an offender’s individual circumstances is precluded.
Going forward, the utility of such sentences must be carefully examined, and safeguards must be put in place to protect against inequitable access to justice outcomes.
Serena Eshaghurshan is 2021 J.D. candidate at the University of Calgary. Prior to law school, she received a bachelor of arts in psychology at the University of Calgary.
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