Over the last few years, multiple mandatory minimum sentences have been challenged in courts across Canada. The federal government has also toyed with the idea of repealing a number of these sentences that came into force during the Conservative government. However, there has been little action on this front from the Liberals and so it seems to be left to the courts to determine the constitutionality of each mandatory minimum sentence case-by-case. In June of this year, the British Columbia Supreme Court (BCSC) reviewed two firearm offences that each carry a 5-year mandatory minimum sentence in the case of R. v. Dingwall (Dingwall).
A mandatory minimum penalty (MMP) is a penalty that must, at least, be imposed by the sentencing judge, meaning that when sentencing an individual a judge is not permitted to give a sentence lower than what is prescribed in the section of the Criminal Code. The consequence of MMPs is that all offenders are given at least the minimum sentence regardless of their personal circumstances or circumstances related to their offence. For those opposed to MMPs, the concern is that such types of sentences completely removes judicial discretion from sentencing and ignores important sentencing principles such as proportionality, restraint and recognizing mitigating or aggravating factors.
In Dingwall, the accused argued that the MMPs of 5 years for discharging a firearm with the intent to wound, maim or disfigure and for recklessly discharging a firearm breached s.12 of the Charter of Rights, which provides: “Everyone has the right not to be subjected to any cruel or unusual treatment or punishment.” The Court concluded that for the offence of discharging a firearm with intent, a 5-year minimum sentence does not constitute cruel or unusual punishment. However, for recklessly discharging a firearm, the Court concluded that a 5-year minimum sentence does constitution cruel or unusual punishment.
When bringing forward a constitutional challenge on a mandatory minimum sentence, the bar is high on the offender who must establish that the MMP is more than just merely excessive, but that the sentence is grossly disporportionate to the what should be imposed on the individual. The Court outlined the test to evaluate s.12 arguments. First, a court must look at: what constitutes a proportionate sentence for the offence. Second, a court must ask: whether the MMP requires the judge to impose a sentence that is grossly disproportionate to the offence and the circumstances. A court is to look at the particular offender, but may also assess hypothetical scenarios to determine whether it is reasonably foreseeable that the law will impose cruel and unusual punishment on others.
In this particular case, the Court noted that the firearm offences were serious offences, the gravity of which is high. It also noted that the offender, Ms. Dingwall, possessed a number of mitigating personal circumstances. Furthermore, the Court looked to previous cases to determine what other offenders received in similar circumstances. The Court concluded that a reasonable sentence for Ms. Dingwall was one of 4.5 years and as such, a 5-year MMP was not grossly disproportionate.
However, as mentioned above, that did not end the matter for the Court. The Court assessed the MMP against a “reasonable hypothetical.” The Court considered two hypotheticals. Firstly, a young Aboriginal woman with no criminal record who picks up the person who discharges the firearm. When she asks questions about what is occurring, she is told to shut up and is too scared to ask any more questions. The Court also considered another hypothetical of a young Aboriginal person who tries to commit suicide, while suffering from lived and inter-generational trauma and is intoxicated. As the individual puts the firearm to their chin, a family member or friend pushes the firearm away. No one is injured by the bullet.
The Court concluded that for the offence of discharging a firearm with intent, even in the first reasonable hypothetical, a sentence of 5 years was not grossly disproportionate. With regards to the second reasonable hypothetical, the Court concluded the changes of it leading to a conviction was remote or speculative and as such did not consider it. However for the offence of recklessly discharging a firearm, the Court concluded that the second hypothetical could ground a conviction given that it does not require harm to be caused or intended by the offender. The Court found that in such a circumstance, a 5-year sentence would be grossly disproportionate given that an offence in those circumstances would be on the lowest end of the seriousness spectrum and given the highly sympathetic and mitigating personal characteristics. As such, the Court concluded that the MMP violated s.12 of the Charter and was struck down.
So how is this case relevant to you? If you or someone you know is charged with this offence or another offence where there is a mandatory minimum sentence, you should consider hiring a lawyer and discussing the possibilities of challenging such a sentence. The case of R. v. Dingwall may have come from British Columbia but it may have some persuasive value in Ontario. Furthermore, our office has had success in recent cases striking down other mandatory minimum sentences.