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).
In a recent case in the Onatrio Superior Court of Justice, the mandatory minimum one year jail sentence for Sexual Exploitation was found to be unconstitutional. This decision is part of what is now a long line of cases where mandatory minimum senteces for sexual offences have been struck down. In the decision of R. v. Cristoferi-Paolucci, Justice McWatt looks to two hypothetical situation where the mandatory minimum would be grossly disproportionate:
Mandatory minimum senteces for sexual offences are continuing to fall. The mandatory minimum sentence of one year in jail for sexual interference when the Crown proceeds by indictment has previuosly been declared unconstitutional in many cases Now, the mandatory minimum of 90 days in jail has beem struck down.
In May 2018, the Ontario Court of Appeal in R v Vu, 2018 ONCA 436 has struck down mandatory minimum sentences (MMS) in relation to the productions of marijuana. Parliament had implemented a sliding scale of MMS for marijuana production offences. The MMS go from 6 months to 3 years imprisonment depending on the number of plants produced and whether there are statutory aggravating factors covered by section 7(3) of the Controlled Drug and Substances Act. The Court found that section 7(2)(b)(iii), (v), (vi) and 7(3)(c) are unconstitutional and violate section 12 of the Charter of Rights and Freedoms to be free of cruel and unusual punishment.
Drug offences are a unique set of offences in Canada, and are criminalized under the Controlled Drugs and Substances Act (CDSA) as opposed to the Criminal Code like most other criminal offences. This also means that drug offences are prosecuted not by the local provincial Crown's office, but rather by Federal Crowns from the Public Prosecutions Services of Canada (PPSC).
The Supreme Court recently released a judgment in Lloyd striking down as unconstitutional a minimum sentence for drug trafficking. The Court found the minimum sentence, a one-year mandatory minimum where the offender has been convicted of a previous drug offence within the last 10 years, violates section 12 of the Charter because it doesn't allow for judicial discretion based on the circumstances of the particular conduct and the individual offender. The mandatory minimum sentence amounted to cruel and unusual punishment.
There have been some serious amendments to drug offences in Canada in the last year, with substantial changes made to sentencing. Harper's conservative government brought in a series of mandatory minimum sentences, including for marijuana offences. While this change reflects the Conservative's "tough on crime" agenda, it is often increasing sentences beyond what would otherwise be an appropriate sentence. Since these new sentences are mandatory, the only way to avoid jail is to successfully defend the charge. This often means hiring competent and skilled counsel.