Cruel, Unusual, and Constitutionally Infirm: Mandatory Minimum Sentences in Canada

• Author: Sarah Chaster
• Position: Completed her BA at the University of British Columbia and her JD at the University of Victoria, graduating in 2017
• Pages: 89-119

APPEAL VOLUME 23

n

89

ARTICLE

CRUEL, UNUSUAL, AND

CONSTITUTIONALLY INFIRM: MANDATORY

MINIMUM SENTENCES IN CANADA

Sarah Chaster *

CITED: (2018) 23 Appeal 89

INTRODUCTION..................................................90

I. AN OVERVIEW OF MANDATORY MINIMUM SENTENCING.........90

A. An Overview of Sentencing in Canada. ..............................91

B. e History of Mandatory Minimum Sentences .......................92

C. Academic Reaction to MMS: Social Science and Political Perceptions .......92

II. FROM SMITH TO LLOYDCRUEL AND UNUSUAL PUNISHMENT...95

A. Section 12 and the Reasonable Hypothetical ..........................96

B. Gross Disproportionality: A Workable reshold? .....................100

C. Prosecutorial Discretion and Hybrid Oences ........................100

D. What Remedy?................................................102

E. Nur and Lloyd: Success and Failure.................................103

III. LEGISLATIVE EXEMPTION CLAUSES AND RESIDUAL

CONSTITUTIONAL FRAILTIES..................................105

A. Legislative Exemption Clauses ....................................105

i. General Exemption Clause....................................108

ii. reshold of “Substantial and Compelling Circumstances” ...........109

iii. Written Reasons Requirement .................................110

B. Constitutional Challenges: Section 15 ..............................111

i. Section 15: Substantive Inequality in MMS.......................112

ii. Section 1: Deference and Dialogue .............................117

CONCLUSION ...................................................118

* Sarah Chaster completed he r BA at the University of British Columbia a nd her JD at the

University of Victo ria, graduating in 2017. She sincerely thanks Professor Gerry Fergu son and

Assistant Professor Mich elle Lawrence (University of Vic toria, Faculty of Law) for their leade rship

of the criminal law term—and th eir assistance with this paper.

She is currently clerking f or Chief Justice Richard Wagner at the Suprem e Court of Canada,

though the opinions she ex presses in this article are hers, an d they do not represent the

opinions of the Court—o r reect her work at the Court.

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APPEAL VOLUME 23

INTRODUCTION

Mandatory mini mum sentences (“MMS”) are a quanda ry in Canad ian crimina l law.

Lawyers, socia l scientists, and ac ademics constantly criticize the Criminal Code’s

increasingly comprehensive mandatory minimum sentencing sc hemes. ese critics

question the constitutional i nrmities and policy justications of M MS. At the same

time, MMS have long attrac ted judicial deference.

However, in April 2015, for the rst time in nearly 30 years, the Supreme Court of

Canada (“the Cour t”) struck down a mandatory minimum s entence in R v Nur (“Nur”).

e Court then struc k down another mandator y minimum sentence in April 2 016 in R

v Lloyd (“Lloyd” ).

ese rapid changes in judicial treatment of MMS from Canada’s highest court ra ise

many questions. In par ticular, what will be the futu re of mandatory minimum sentencing

in Canada?  at future is, for now, unclear: do the deci sions in Nur and Lloyd aug ur a

threat to the continued use of ma ndatory minimum sentencing in Canada, or w ill they

reinforce the status quo? Is the Cou rt responding to the criticisms of those law yers, social

scientists, and academics, or will the se decisions justify judicial deference to mandator y

minimum sentencing schemes?

In this ana lysis and assessment of the state of MMS in Ca nada,1 I briey engage with the

evolution of MMS and academic commenta ry on their evolution and use. I then exa mine

how the Court’s approach to MMS in Nur and Ll oyd altered—or upheld—section 12

(Canadian Charter of Rights and Fr eedoms (“Charter”)) principles, which commonly feature

in challenges to minimum sentences. Fina lly, I evaluate the possibilities for C harter

challenges to M MS beyond section 12, as well as avenues for future reform.

Ultimately, this article aims to demonstrate that, though they are politically appea ling,

MMS can be crude, c ruel, and undesirable devices in t he sentencing process. e majority

in Lloyd addressed the underlying in rmities in mand atory minimum sentencing ,

and it directed Parliament to develop “legislative exemption clause s” to render MMS

constitutionally complia nt. I applaud this judicial direction, and argue that t he most

reasonable response to these u nderlying constitutional inrm ities is a legislative exemption

clause, inserte d into the Criminal Code, which would permit sentencing judges to depar t

from MMS in “substantia l and compelling circumst ances.” In the alternative, if Parliament

is unable or unwilli ng to adopt legislative exemption clauses, I argue t hat Canadian court s

should be less deferential, a nd more openly activist in assessi ng the underlying justications

and undesirable consequence s of MMS.

I. AN OVERVIEW OF MANDATORY MINIMUM SENTENCING

MMS have been described by t he Court as a “forceful expression of government policy

in the area of crimi nal law” and a “clear statement of legi slative intent.”2 ey are not

in themselves unconst itutional and have historic ally been upheld by the Court as an

acceptable, albeit har sh, sentencing device. More recently, however, MMS have also been

denounced by the Court as provi sions which “by their very nat ure have the potential

1 A brief introductory comment on the sco pe of this paper is warranted. I addre ss MMS of

imprisonment only and do no t consider other mandatory penal ties such as nes, prohibitions,

or periods of parole ine ligibility. I also do not address arguabl y less controversial mandatory

penalties for such oences as m urder and high treason and instead limit th e scope of this

paperto the rapid increase i n MMS attaching to oences which histor ically did not entail

minimum penalties.

2 R v Nasogaluak, 2010 SCC 6 at para 45 [Nasogaluak]; R v Nur, 2015 SCC 15 at para 132 [Nur].