There are currently dozens of crimes in Canada that carry minimum sentencing 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 an overview of mandatory minimum sentences in Canada for various crimes and discuss what this means for the amount of time served.
MMS 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 put through in 1995. Supporters of MMS say they deter crime and help create a just society.
Critics of mandatory sentencing say it does little for crime prevention and takes away power from judges who cannot use their discretion to grant a lesser sentence in exceptional circumstances. 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 say that MMS particularly contributes to the over-incarceration of Black and Indigenous peoples.
Mandatory Minimum Sentences For Various Crimes
In recent years, many MMS have been struck down by the courts for being unconstitutional. Still, many remain on the books. Here are the mandatory minimum sentences for specific crimes outlined in the Criminal Code of Canada:
DUI – Impaired Driving
The mandatory minimums penalty for the first impaired driving offence is a fine. For a second DUI offence, the mandatory minimum sentence is 30 days in jail and 24-month driving probation. After the second, the mandatory minimum increases to a 120-day prison sentence and 36-month driving probation for every repeat offence.
Attempted murder with a firearm carries an MMS of 4 years and jumps to 5 years if the firearm is restricted or the offence involves a criminal organization. A second offence has a minimum of 7 years.
Armed Robbery – With a Firearm
Armed robbery carries a mandatory minimum sentence of 4 years imprisonment for a first offence and seven years for subsequent offences.
Kidnapping with a firearm carries a mandatory 4-year sentence, and kidnapping someone under 16 if you are a non-parent is 5 years. For a second offence, or if a criminal organization is involved, the MMS is 7 years.
Use of A Firearm
Using a firearm or an imitation firearm while committing an offence carries an MMS 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 an MMS of 4 years with 5 years if the weapon is restricted and 7 years if it is a second offence.
Many MMS for 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 1 year MMS. If you have more than 3 kg, this goes to 3 years, and if you are trafficking more than 3kg in or near a school or an area frequented by children, the MMS is also 3 years.
Many MMS 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 an MMS of 5 years and 7 years for a second offence. Aggravated sexual assault with a firearm has an MMS of 4 years and 5 years for a restricted weapon or if a criminal organization is involved. The MMS is 7 years for a second offence.
Currently has an MMS of 5 years if it involves kidnapping, aggravated assaults, or death or the victim is under 18. If kidnapping, aggravated assaults, or death is involved AND the victim is under 18, the MMS is 6 years.
Making Sexually Explicit Material Available to a Child
Carries an MMS of 90 days for a summary offence and 6 months for an indictable offence.
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 a mandatory minimum sentence of life imprisonment are 1st-degree murder, 2nd-degree murder and high treason. The MMS for 1st-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 MMS 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 sentence, an experienced criminal defence lawyer is your best option. William Jaksa has over a decade of experience in criminal law in Toronto. Contact him for a consultation today.