Mandatory Minimum Sentences and Section 12 of the Canadian Charter of Rights and Freedoms

Charlie Feldman
Legal and Social Affairs Division

On 14 April 2015, the Supreme Court of Canada released its decision in R. v. Nur, a case that challenged the constitutionality of mandatory minimum sentences for the possession of a prohibited or restricted firearm with ammunition.

In a split 6–3 decision, the Court found that the required sentences of imprisonment for three years for a first offence and five years for a second or subsequent offence violated section 12 of the Canadian Charter of Rights and Freedoms, the protection against cruel and unusual punishment.

This case offers an important perspective on how the Supreme Court will consider future cases regarding the mandatory minimum sentences adopted by Parliament.

Increase in mandatory minimum offences

Mandatory minimum sentences are adopted by Parliament to limit judicial discretion when imposing punishment for an offence. When the Criminal Code was first enacted in 1892, six offences carried mandatory minimum sentences.

While there has been no systemic evolution in the formulation of mandatory minimum sentences, the number of offences with this sentencing approach has increased over time. There are currently over 60 such provisions in the Criminal Code.

Those in favour of mandatory minimum sentences argue that the sentences act as deterrents, prevent future crime by removing the offender from society longer, and respond to the public’s desire to see individuals held accountable for criminal acts.

Opponents argue that mandatory minimum sentences have little or no demonstrated deterrent effect, do not allow for the use of discretion where warranted, and result in increased costs and resource strains for the criminal justice system.

Section 12 of the Charter states: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” This section is often used as a means to challenge mandatory minimum sentences.

When a mandatory minimum sentence is challenged under section 12, the Court will inquire whether the sentence is a grossly disproportionate punishment given the facts of the case. This alone may result in an individual sentence being upheld, or a mandatory minimum provision being stuck down.

The approach in R. v. Nur

In Nur, the offenders’ individual sentences were not at issue, as the lower courts recognized that they were proportionate in the circumstances.

Instead, the section 12 challenge focused on whether the reasonably foreseeable application of the provision could result in cruel and unusual punishment being imposed on others in hypothetical circumstances.

Following jurisprudence regarding “reasonable hypotheticals,” the Supreme Court asked, “What situations may reasonably arise?” under the mandatory minimum sentence provision.

In looking at so-called “licensing” infractions, the Court found that the three-year mandatory minimum sentence for possession of a prohibited or restricted firearm with ammunition could be cruel and unusual punishment in a case where, for example, “a person who has a valid licence for an unloaded restricted firearm at one residence, safely stores it with ammunition in another residence, e.g. at her cottage rather than her dwelling house.”

Since such a scenario could be reasonably foreseen and a minimum three-year sentence would violate section 12 of the Charter in those circumstances, the majority found the mandatory minimum provision unconstitutional.

The analysis of the dissenting judges focused on the hybrid nature of the offence. The Criminal Code’s offence for possession of a prohibited or restricted firearm with ammunition can be proceeded with either by way of summary conviction or by indictment. Only the indictable offence carries with it the mandatory minimum sentence.

In the view of the dissenting judges, such “licensing” situations were unlikely to arise, and, if they did, they would probably be proceeded with by summary conviction. In this conception, any section 12 concern could be “cured” through the use of prosecutorial discretion.

After finding that section 12 of the Charter had been violated, the Court’s majority turned to section 1 of the Charter, which permits such infringements where they can be “demonstrably justified in a free and democratic society.”

To determine this, the Court looks to what the legislation seeks to accomplish to determine whether:

  • the means are rationally connected to the objective;
  • there is minimal impairment of the Charter right in question; and
  • there is proportionality between the deleterious and salutary effects of the law.

In Nur, the Court found a rational, albeit “frail,” connection between mandatory minimum sentences and Parliament’s goals of denunciation and retribution.

However, the Court found that the right in question could be less impaired through a more tailored provision and that the effects of the legislation in question were grossly disproportionate.

As a result, the mandatory minimum sentence at issue – found in section 95(2)(a) of the Criminal Code – was found to violate section 12 of the Charter in a way that could not be justified under section 1. The provision was therefore declared to be “of no force or effect.”

Implications for legislators

When adopting new mandatory minimum penalties, Parliament may wish to consider the inquiry conducted by the Supreme Court, focusing on whether there exist reasonably foreseeable applications of proposed laws that could constitute cruel and unusual punishment. Whether other existing mandatory minimums will survive such scrutiny remains to be seen.