Mandatory minimum sentences are set by Parliament to limit judicial discretion when it comes to imposing punishment. There were six offences with mandatory minimum sentences when the first Criminal Code (the Code) was enacted in 1892, for such things as committing frauds upon the government and corruption in municipal affairs.
Since then, mandatory minimum sentences have not evolved in a systematic fashion, but rather in response to changing perceptions of what is considered a serious crime. Over the years, there has been an increase of the number of offences having mandatory minimum sentences.
Currently, there are mandatory minimum sentences for various criminal offences, including murder, firearms-related offences and sexual offences.
In 2023, the Supreme Court of Canada (Supreme Court or Court) released R. v. Hills (Hills), R. v. Hilbach (Hilbach) and R. v. Bertrand Marchand (Bertrand Marchand), which considered the constitutionality of mandatory minimum sentences under section 12 of the Canadian Charter of Rights and Freedoms (the Charter). This HillNote presents the current analytical framework, recent case law developments from the Supreme Court regarding mandatory minimum sentences and a review of its case law on the matter over the years.
Analytical Framework: The Two-Stage Test
Section 12 of the Charter grants a “right not to be subjected to any cruel and unusual treatment or punishment.” In Hills, the Supreme Court reconfirmed the two-stage test developed over the years to assess whether a mandatory minimum sentence violates this right.
First, the judge must assess what constitutes a fit and proportionate sentence with regard to the objectives of sentencing set out in the Code. Section 718 of the Code provides a list of sentencing objectives (or “purposes”), such as denunciation, deterrence and rehabilitation. In section 718.01, the objectives of denunciation and deterrence must be given primary consideration when, for instance, sentencing offences involving abuse of children. In R. v. Friesen, the Supreme Court stated that sentences for these crimes must also account for the “far‑reaching and ongoing harm” sexual violence against children causes.
Second, the judge must decide whether the mandatory minimum sentence is grossly disproportionate by looking at the gravity of the offence, the effects of the punishment on the offender and the sentencing objectives. According to section 718.1 of the Code, proportionality is a central tenet of Canada’s sentencing regime. Section 718.2 of the Code also enumerates principles that must be considered by the courts in assessing if a mandatory minimum sentence is grossly disproportionate, such as mitigating or aggravating circumstances, including the unique situation of Indigenous offenders, in accordance with the framework set out in R. v. Gladue.
This two‑stage test may be applied in the case of the actual offender before the court or that of another offender in a reasonably foreseeable case or hypothetical scenario.
Recent Supreme Court Case Law Developments
In 2022, Parliament passed Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, which repealed mandatory minimum sentences for several drug- and firearms-related offences, including some mandatory minimum sentences at issue in Hilbach and Hills.
Constitutional Mandatory Minimum Sentences
In Hilbach, the Supreme Court heard the unrelated cases of Ocean William Storm Hilbach, a 19-year-old Indigenous man who pleaded guilty to robbing a convenience store using a prohibited firearm, contrary to section 344(1)(a)(i) of the Code, and of Curtis Zwozdesky, who pleaded guilty to robbery of a convenience store with a non-restricted firearm, contrary to section 344(1)(a.1) of the Code. Both men challenged their respective imposed mandatory minimum sentence under section 12 of the Charter.
The Court ruled that the mandatory minimum sentence, which was at the time five years’ imprisonment for a first offence of robbery using a restricted or prohibited firearm, in the case of Mr. Hilbach, and the mandatory minimum sentence, which was at the time four years’ imprisonment for robbery using a non-restricted firearm, in the case of Mr. Zwozdesky, did not violate section 12 of the Charter.
For the first part of the test, the judges found that five years’ imprisonment as prescribed under section 344(1)(a)(i) of the Code, in Mr. Hilbach’s case, was a fit and proportionate sentence as the offence of robbery was committed using a prohibited firearm that resulted in physical harm to the store clerks and involved a 13-year-old youth in the commission of the crime.
For the second part of the test, the judges determined that the mandatory minimum sentence of five years was not grossly disproportionate. Regarding the scope and reach of the offence, the Court indicated that the mandatory minimum sentence was not so broad that it captures a wide range of accused persons, including those with a low level of culpability. The Court determined that even though the mandatory minimum sentence of five years’ imprisonment would have a detrimental impact on the rehabilitation of Mr. Hilbach and his personal circumstances “attenuate his culpability somewhat,” his actions represented a grave offence.
The Court also found that Parliament was justified in enacting mandatory minimum sentences to show that reckless disregard for the lives and safety of others in the handling of firearms is unacceptable. In other words, the penalties aligned with Parliament’s objectives.
The Court concluded that “a mandatory minimum of five years, while harsh and close to the line, is not grossly disproportionate in Mr. Hilbach’s case,” and that “while the effects of imprisonment on Mr. Hilbach, an Indigenous offender, will be severe, five years’ imprisonment in his case is not totally out of sync with sentencing norms.”
Hypothetical scenarios were used to evaluate the constitutionality of section 344(1)(a.1) of the Code in the case of Mr. Zwozdesky. They involved young Indigenous offenders suffering from mental health issues and addiction, and the use of air-powered pistols. According to the Court, these hypothetical scenarios “introduce a degree of reduced gravity and culpability compared to Mr. Hilbach’s case,” but “they are insufficient to establish that s. 344(1)(a.1) is grossly disproportionate” and “they do not show four years’ imprisonment for robbery with a firearm is totally out of sync with sentencing norms.”
The Court concluded that even though the mandatory minimum sentence would have a negative impact on certain offenders, Parliament is entitled to prioritize denunciation and deterrence for serious offences with high moral blameworthiness.
Unconstitutional Mandatory Minimum Sentences
In Hills and Bertrand Marchand, the Supreme Court found that the mandatory minimum sentences at issue violated section 12 of the Charter.
In Hills, the mandatory minimum sentence, which at the time of the hearing was four years’ imprisonment for discharging a non-restricted firearm into or at a home (section 244.2(3)(b) of the Code), was challenged based on the hypothetical scenario where a young person intentionally discharges an air‑powered firearm at a residence that is incapable of perforating the residence’s walls.
In Bertrand Marchand, the issue was the mandatory minimum sentences for child luring of one year’s imprisonment on indictment set out in section 172.1(2)(a) of the Code and six months’ imprisonment on summary conviction set out in section 172.1(2)(b) of the Code. Hypothetical scenarios were again used to challenge the constitutionality of the mandatory minimum sentences. The first scenario involved a high school teacher with bipolar disorder and no criminal record and her 15-year-old student. The second scenario was one where an 18-year-old was in a relationship with a 17‑year‑old.
For the first part of the test, the Court stated in Hills that the “fit sentence for the hypothetical offender in the accused’s proposed scenario” was a suspended sentence of up to 12 months’ probation considering the low gravity of the offence, the low level of culpability and the youthfulness of the offender. In Bertrand Marchand, the Court concluded that in the first scenario, the fit and proportionate sentence was a 30-day intermittent sentence that recognized the seriousness of the offence but was also mindful of mitigating factors. The judges found that a six‑month conditional discharge with strict probationary terms was the fit and proportionate sentence in the second scenario, considering the offender’s youth and lack of criminal record.
For the second part of the analysis, the judges in both cases found that the mandatory minimum sentences were grossly disproportionate. Regarding the scope and reach of the offences, the Court held that the rigidity of the sentences did not account for the large scope of offences with varying degrees of seriousness. In Hills, the Court noted that it would “outrage” Canadians to learn that firing a paintball gun at a home could justify a four-year imprisonment.
In Bertrand Marchand, the Court characterized the range of conduct covered by the luring offence as “staggering,” considering the 20 designated secondary offences. The Court went on to state that, with respect to the effects of the penalties on the hypothetical offender, the mandatory minimum sentences would have a detrimental impact on offenders who are young or suffering from mental health issues. As for the penalties and their objectives, the Court found that Parliament’s decisions went “beyond what is necessary to achieve Parliament’s sentencing objectives.”
The Court concluded in both cases that the objectives of denunciation and deterrence cannot justify a mandatory minimum sentence that applies to an offence that captures a wide spectrum of conduct with different levels of moral culpability and that would have a deleterious effect on young offenders who have high prospects for rehabilitation.
As well, it is worth noting that on 6 June 2023, the Supreme Court granted leave to appeal [in French] from the judgment by the Court of Appeal of Quebec declaring that the mandatory minimum sentence for possessing and accessing child pornography violated section 12 of the Charter.
Overview of Supreme Court Case Law on Mandatory Minimum Sentences
As shown in Table 1 below, the Supreme Court has upheld the constitutionality of mandatory minimum sentences in six cases (Hilbach, R. v. Ferguson, R. v. Morrisey, R. v. Latimer, R. v. Goltz and R. v. Luxton) and found such sentences to be unconstitutional on five occasions (Bertrand Marchand, Hills, R. v. Lloyd, R. v. Nur and R. v. Smith).
Table 1 – Supreme Court of Canada Case Law Involving Mandatory Minimum Sentences
| Case Law | Date | Section(s) | Offences | Minimum Mandatory Sentence | Decision |
|---|---|---|---|---|---|
| R. v. Bertrand Marchand |
3 November 2023 |
172.1(2)(a) of the Criminal Code
172.1(2)(b) of the Criminal Code |
Child luring |
On indictment: one year On summary conviction: six months |
Struck down |
| R. v. Hills | 27 January 2023 | 244.2(3)(b) of the Criminal Code | Discharging a non-restricted firearm into a house | Four years | Struck down |
| R. v. Hilbach | 27 January 2023 | 344(1)(a)(i) of the Criminal Code
344(1)(a.1) of the Criminal Code |
Robbery using restricted or prohibited firearm
Robbery using a non-restricted firearm |
Five years
Four years |
Upheld
Upheld |
| R. v. Lloyd | 15 April 2016 | 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act | Trafficking or possession for the purpose of trafficking of a controlled substance | One year | Struck down |
| R. v. Nur | 14 April 2015 | 95(2)a) of the Criminal Code | Possession of a prohibited or restricted firearm when the firearm is loaded or kept with readily accessible ammunition | First offence: three years
Subsequent offences: five years |
Struck down |
| R. v. Ferguson | 29 February 2008 | 236(a) of the Criminal Code | Manslaughter committed with use of a firearm | Four years | Upheld |
| R. v. Morrisey | 29 September 2000 | 220(a) of the Criminal Code | Criminal negligence causing death with a firearm | Four years | Upheld |
| R. v. Latimer | 6 February 1997 | 235 of the Criminal Code | Second-degree murder | Life imprisonment without possibility for parole for 10 years | Upheld |
| R. v. Goltz | 14 November 1991 | 88(1)c) of the Motor Vehicle Act (British Columbia) | Driving while prohibited | First offence: seven days and $300 fine | Upheld |
| R. v. Luxton | 13 September 1990 | 214(5)e) and 669 of the Criminal Code | First-degree murder | Life imprisonment without eligibility for parole for 25 years | Upheld |
| R. v. Smith (Edward Dewey) | 25 June 1987 | 5(2) of the Narcotic Control Act | Importation of drugs | Seven years | Struck down |
Sources: Table produced by the Library of Parliament using information obtained from Criminal Code, R.S.C. 1985, c. C-46; Controlled Drugs and Substances Act, S.C. 1996, c. 19; Motor Vehicle Act, R.S.B.C. 1996, c. 318; Narcotic Control Act, R.S.C. 1985, c. N-1; and “Judgments,” Supreme Court of Canada
Additional Resources
Allen, Mary. “Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences.” Juristat. Statistics Canada. 29 August 2017.
Department of Justice, “1.2 A Brief History of MMPs in Canada.” Mandatory Minimum Penalties in Canada: Analysis and Annotated Bibliography.
Nicol, Julia. Sentencing in Canada. Publication no. 2020-06-E. Library of Parliament. 22 May 2020.
By Alexsandra Ferland, Library of Parliament
Categories: Government, Parliament and politics, Law, justice and rights, Social affairs and population