Mandatory minimum sentences control judicial discretion. This is supposed to help reduce certain crimes by sending a message to the public that these offences will not be tolerated, and they will be punished severely.
In Canada, some sexual offences have mandatory minimums. For instance, sexual assault with a victim under 16-years old has a 1-year minimum sentence if prosecuted by indictment.
Most people, without doubt, agree that protecting our youth is paramount. However, the definition of sexual assault in Canada is very broad. As such, painting everyone with the same brush, and having them face the same mandatory minimums for very different actions seems unjust. And the Courts seem to agree.
COURTS HAVE BEEN REMOVING MANDATORY MINIMUM SENTENCING FOR SEXUAL OFFENCES
Over the last couple of years, there has been an increase in the number of cases where the mandatory minimum sentence has been removed. In these cases, the mandatory minimum was considered to be in violation of Charter Rights.
The Canadian Charter of Rights and Freedoms protects people from cruel and unusual punishments. The sentencing must be proportionate to the crime.
As a result, judges have struck down minimum sentences in several sexual-based offences.
CRITICISMS OF MANDATORY MINIMUMS FOR SEXUAL ASSAULT
There are a number of issues with mandatory minimums that sexual assault lawyers are challenging. For one, the sentencing casts too large of a net.
In Canada, sexual assault covers all unwanted sexual activity. That includes actions like fondling, kissing, and rape. These actions vary wildly in their severity and effect, so sentencing them under the same umbrella can be inappropriate.
This brings us to the second issue, inappropriate sentencing. Mandatory minimums can cause punishments that are not proportional to the offence. In reducing the judge’s control over discretion, they also remove the ability to properly use context in the sentencing.
A final challenge is that they are not achieving their intended purpose. The use of mandatory minimum sentencing was supported with a belief that they:
- are an effective deterrent against certain serious offences such as drug and weapon crimes and sexual assault offences;
- protect against possible disparities in sentencing;
- keep convicted offenders incarcerated for longer periods of time (keeping these individuals off the streets will prevent new crimes); and
- aid prosecutors and police who use the possibility of lengthy prison terms to persuade lower-level offenders to testify against higher-level offenders and to convince offenders to plead guilty for a negotiated sentence.
In practice, mandatory minimums do not seem to have had an impact on reducing sexual assault. As well, they are resulting in greater disparities in sentencing, particularly for minority defendants. Additionally, many of the people sentenced under mandatory minimums are not the intended targets of the program.
CAN YOU GET LESS THAN THE MANDATORY MINIMUM
Although mandatory minimums can tie a Judge’s hands in terms of sentencing options, the Judge can strike the minimum down if they believe it violates charter rights. While this is happening more frequently, there is no guarantee.
In instances where violence is an aggravating factor in a sexual assault, the Judge is unlikely to waive the minimum. Sexual assault causing bodily harm and sexual assault with a weapon is likely to have a complete sentence. Especially if it involves the use of a firearm or a prohibited weapon.
If a Judge decides to strike down the mandatory minimum they are able to provide a lesser sentence. They will use their discretion to provide a punishment more suitable to the individual offence.
In some sexual offences, there is a possibility of receiving a discharge. A discharge is where the person is found guilty but is not convicted. A discharge does not result in a criminal record. An absolute discharge is generally removed one year after receiving the discharge.
A conditional discharge includes a probationary period. The person will have to follow all terms of their probation to have the discharge become an absolute discharge. This can include things like community service, counselling, and good behaviour.
CRIMINAL DEFENCE LAWYER FOR SEXUAL OFFENCES
If you or a loved are facing charges for a sexual offence, you should seek out professional representation. William Jaksa is a Toronto criminal defence lawyer with experience handling sexual offences. He will help you understand your options and possible outcomes.
Contact William Jaksa today for a consultation.