What Are Mandatory Minimum Sentences in Canada, and Do I Need to Serve The Entire Term?

March 26, 2021

There are currently dozens of crimes in Canada that carry mandatory minimum sentence requirements, including minimum fines and mandatory periods of imprisonment. While many mandatory minimum sentences (MMS) have been struck down in recent years, it is essential to understand what is required by law. In this post, we’ll give a brief overview of mandatory minimum sentences in Canada for various crimes and discuss what this means for the amount of time served.  

Minimum Sentences and Canadian Law

The majority of the mandatory minimum sentencing requirements came into effect through Bill C-68, a bill that attempted to curb firearms-related offences and target violent offenders. Bill C-68 was passed into law in 1995 with much uncertain as to what its effects would be. There were also new mandatory minimums introduced as amendments to the Controlled Drugs and Substances Act. Supporters of mandatory minimums argued that set punishments deter crime, help create a just society and provide guidelines that help the criminal justice system operate more efficiently and with some level of consistency.

Critics of mandatory minimums counter argued that it does very little for crime prevention and erodes power from judges who cannot use their discretion to craft a sentence that is most appropriate for the offender and their personal circumstances. It also diminishes any reasonable credit that a judge may give for mitigating factors, such as early pleas to avoid lengthy trials. According to the criminal code, judges should use judicial discretion to enact a sentence “proportionate to the gravity of the offence and the degree of responsibility of the offender,” as required by section 718.1 of the Criminal Code. Critics also argue that mandatory minimums is a significant factor that contributes to the over-incarceration of Black and Indigenous peoples, but that has always been an issue.

Mandatory Minimum Sentences

Minimum sentences do not reduce crime.

Mandatory Minimum Sentences For Various Crimes

In recent years, many mandatory sentences have been struck down by the courts for being unconstitutional. Still, many remain on the books. Here are the mandatory minimum penalties for specific crimes outlined in the Criminal Code of Canada:

DUI – Impaired Driving 

The mandatory minimums punishment for the first impaired driving offence is a fine and a 1-year driving prohibition. For a second DUI offence, the mandatory minimum sentence is 30 days in jail and 24-month driving probation. After a second conviction, the mandatory minimum increases to a 120-day prison sentence and 36-month driving probation for every repeat offence. These are the minimum punishments prescribed by the criminal code, a judge certainly has the discretion to increase these sentences depending on the circumstances of the offence and the offender.

Attempted Murder

Attempted murder with a firearm carries an mandatory minimum of four years and increases to a minimum of five years if the firearm is restricted or the offence involves a criminal organization. A second offence for attempted murder has a minimum sentence of seven years in prison. 

What distinguishes First Degree Murder from Second Degree Murder or Manslaughter?

Armed Robbery – With a Firearm

Armed robbery carries a mandatory minimum sentence of 4-years imprisonment for a first offence and increases to a minimum seven years for subsequent offences. Again, the aim of Bill C-68 was to target violent offenders and the use of firearms in the community. But, it appears that minimum punishments for firearm offences may have been the first that were ruled to be unconstitutional.

Kidnapping

Kidnapping with a firearm carries a mandatory 4-year sentence, and kidnapping someone under the age of 16, if you are a non-parent is 5-years. For any further or subsequent convictions, or if a criminal organization is involved, the mandatory minimum is 7-years. 

Use of A Firearm 

Using a firearm or an imitation firearm while committing an offence carries an minimum of 1-year for a first offence and 3-years for a second offence. Discharging a firearm with the intent to wound or endanger life has a minimum sentence of four years and increases to five years if the weapon usesd is restricted and seven years minimum for any subsequent offences. 

Drug Offences

Many drug related offences that have mandatory sentences under the Controlled Drugs and Substances Act, such as drug trafficking in the case of marijuana has been deemed unconstitutional, but a few remain. Trafficking and possession for trafficking in a prison have a one year mandatory minimum. If the accused persons has more than 3 kg, the minimum increases to three years, and if the accused are trafficking more than 3kg in or near a school or an area frequented by children, the minimum sentences is also three years. 

Sexual Offences

Many mandatory sentences for sexual offences have also been recently struck down by the courts. Sexual Assault with a restricted weapon with intent to cause bodily harm has mandatory sentences starting at five years and then seven years for a subsequent conviction. Aggravated sexual assault with a firearm has a mandatory sentence of four years and five years for a restricted weapon or if a criminal organization is involved. The minimum punishment is seven years for a subsequent offence. 

Human Trafficking 

Currently has minimum sentences of five years if it involves kidnapping, aggravated assaults, or death or the victim is over 18. If kidnapping, aggravated assaults, or death is involved AND the victim is under 18, the mandatory minimum sentences is six years. 

Possession of Child Pornography

Child pornography convictions carry an mandatory minimum sentences of 90-days for a summary offence and 6-months for an indictable offence. However, many of these have changed for the recent years, and are continuing to change as judges are considering the mitigating factors surrounding the circumstances of offenders.

How much of a Mandatory Minimum Sentence Has to Be Served?

Judges do not have the discretion to give a penalty that is less than the mandatory minimum penalty, regardless of the case’s circumstances. The length of your sentence can also include the time spent in detention before your trial, so judges can reduce your sentence by giving credit for the time served. 

What Happens if You Are Sentenced to Life? 

The only convictions with mandatory minimums of life imprisonment are 1st-degree murder, 2nd-degree murder and high treason. The minimum punishment for First Degree Murder is a life sentence and eligibility of parole after 25 years. Second-degree murder with no previous murder convictions carries a life sentence with the earliest possible parole eligibility stating after ten years. If you have a prior murder conviction, the mandatory sentence for Second-degree murder is 25 years. 

If you are facing a life sentence, there are options out there. The first is the option of pursuing an appeal with a higher court, or you can apply for a ministerial review or faint hope clause. 

If you or a loved one face criminal charges or a mandatory minimum penalties, an experienced criminal defence lawyer is your best option. William Jaksa has over 15-years of experience in criminal law in Toronto. Contact him for a consultation today. 

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