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).
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.
The Ontario Court of Appeal, in the decision of R. v. Morrison, has recently upheld a decision of the trial judge to strike down the mandatory minimum sentence of one year in jail for the offence of child luring.
In a recent case in the Ontario Superior Court of Justice, R. v. Hussein, the accused brought an application to have the mandatory minimum sentence for the offences of invitation to sexual touching, sexual interference and sexual assault of one year in jail struck down as unconstitutional. Section 12 of the Charter of Rights ensures that "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."
If you have been charged with a sexual offence, the consequences of a conviction can be serious. In all but the most minor of offences, some form of jail sentence is likely to be imposed. The length of the sentence can vary. In cases of date rape, the sentence is likely to be between two and five years. In cases of ongoing abuse of children, particularly if there are more than one victim, the sentence can be much higher than five years.
You were charged with a criminal offence, such as sexual interference, and released on bail; however, it does not feel like liberty as the conditions on the bail recognizance are incredibly strict. Some examples of strict bail conditions are: house arrest except while in the presence of your surety; limitations on your ability to see family; a curfew; or a condition denying you the ability to go to school or work. These restrictions can be very difficult and limiting for accused persons to go about living their lives. Some would equate the conditions to being in custody; however, bail is not jail.
Probation is a sentencing option available to judges after a finding of guilt. If an accused receives a conditional discharge or a suspended sentence, probation will always form part of the sentence. The maximum length a probation order can be is three years.
When someone is charged with a criminal offence, such as a domestic assault, the Crown will provide the accused, or his/her lawyer, with their position on resolution. This will entail which charge(s) they would like the accused to plead to along with the sentence they will be asking the Judge to impose. Defence lawyers will speak to the Crown and attempt to arrange a better deal for their client. Oftentimes a deal with be working out that is "joint" meaning that the Crown and Defence are asking for the same sentence. This joint position, however, is not guaranteed as the presiding judge always has the power to disagree with the joint position and sentence higher or lower if he/she sees fit. That being said, there are steps that a judge must take before disagreeing with a joint position, and these steps should provide the accused with some comfort in knowing that the judge will likely follow the joint position.
In many cases, an offender's main concern when being sentenced is whether he/she will have to go to jail. However, justices have other tools at their disposal when considering what an appropriate sentence might be.