Peines minimales obligatoires

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Principes généraux

The Criminal Code give judges a wide range of sentencing options that are to be guided by the sentencing principles rather than constrained by sentencing grids and minimums as occurs in other countries. Judicial discretion is a "central feature of the sentencing process in Canada."

Effect of Minimum on Range of Sentence

It has been agreed upon by several courts that mandatory minimums act as an "inflationary floor" and sets a new minimum punishment for the best offender.

The mininum "introduces a higher starting point" which creates "a narrower range" within which sentencing principles operate.

When Minimums are Applied

It would be wrong to impose the minimum on the least culpable offender in the least serious circumstances and then provide the same sentence upon someone who is more culpable and for a more serious offence where they would have received that sentence under the old regime.

Raised minimums should not create a standard sentence to be "imposed on all but the very worst offender ... in the very worst circumstances."

Minimums cannot be applied retrospectively.

Remand Credit

Section 719(3) permits taking into account remand credit to sentence, and can have the effect of bringing a sentence below the mandatory minimum penalty.

Criticisms

Mandatory minimums have been criticized by the Supreme Court for:

• "depriv[ing] the courts of the ability to tailor proportionate sentences at the lower end of the range";
• impose unjust sentences that violate the principle of proportionality
• shift the focus away from the offender;
• modify the sentencing process that relies on review of all relevant factors of sentencing; and
• change the "normal judicial process of sentencing".

Notice for Minimum Sentences under the CDSA

Notice

8 The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General’s intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.
2012, c. 1, s. 42.

– LRCDAS (CanLII), (Jus.)

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Constitutionality of Minimums

• List of Mandatory Minimum Challenges

Consequence of Unconstitutional Minimums

Where a mandatory minimum was found unconstitutional, the removal of a minimum "does not operate to diminish the whole previously established sentencing pattern" proportionate to the previous minimum. The removal of the floor will have some "ameliorating effect" on sentencing but not a "wholesale" reduction, which would otherwise defeat the parliamentary intent to characterize the offence as serious. This also means that the sentencing cases decided while the MMP was in force is not relevant to sentencing and those prior to the amendment should still be viewed with caution.

However, elimination of minimums "permits the court to treat the less serious cases less seriously."