A mandatory minimum sentence (MMS) compels a judge, by law, to impose a sentence equal to the minimum term set for that crime, no matter what the circumstances of the offence
According to the Canadian Department of Justice, twenty nine offences in the Canadian Criminal Code carry a mandatory minimum sentence. There is currently zero discretion for judges to reduce the sentence for anyone convicted of an offence that bears a mandatory minimum sentence. That means if you’ve been convicted of a crime like second degree murder, high treason, or multiple impaired driving offences, the judge has no choice but to sentence you to a prison term
Criticism of Mandatory Minimum Sentences
MMS have resulted in longer and more complex trials.
Mandatory minimum sentences have created a large increase in both court and individual costs, and a decrease in guilty pleas which has exacerbated the impact on victims, who are more often required to testify.
Mandatory minimum sentences are set by the government and too rigid.
Judges cannot lower mandatory minimum sentences, removing the ability to tailor a sentence to the individual and offence, even for extenuating circumstances that would otherwise lessen the punishment. Critics of the system claim that not only are these laws cruel and ineffective, but they also target low-level offenders, minorities, and at-risk communities.
Mandatory minimum sentences are imposed disproportionately upon minority groups.
In 2014, the British Columbia Civil Liberties Association (BCCLA) produced a report on the harms of mandatory minimums, citing factors as; the removal of a judge’s ability to consider individual and contributing factors during sentencing, or systemic factors such as the impacts of colonialism when sentencing Indigenous people, as noted in R v Gladue.
Cambridge University professor, Doris Provine, notes in Too Many Black Men: The Sentencing Judge’s Dilemma, that the US federal sentencing guidelines, established in 1984 to promote equity and transparency in sentencing, have ironically increased racial disparities – mostly because of MMS introduced in the ‘80s for selected drug offences. Between 1976 and 1989, white drug arrests grew by 70%, while black drug arrests grew by 450%. Those statistics haven’t improved much over time. In California, African Americans make up only 7% of the state’s population, but they constitute 43% of those sentenced under the Three Strikes law. This is despite evidence that minority communities are less likely to be drug abusers.
Changes To Mandatory Minimum Sentences In Canada
The existing Mandatory Minimum sentencing structure in Canada has focused on punishment through imprisonment, rather than delivering justice based on the nuances of each case. As such, it has disproportionately affected Indigenous peoples, as well as Black and marginalized Canadians.
To specifically address the systemic issues related to Canadian sentencing policies, on February 18, 2021, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, introduced proposed amendments to the Criminal Code and to the Controlled Drugs and Substances Act.
Proposed changes to mandatory minimum sentences in Bill C-22
- MMS would be repealed for 14 offences in the Criminal Code.
- All six Controlled Drugs and Substances Act MMS would be repealed.
A number of offences will still be eligible for a mandatory minimum sentence, including:
- high treason
- sexual offences (including child sexual offences)
- impaired driving offences
- some firearm offences, including firearms offences connected to a criminal organization.
There is growing evidence that mandatory minimum sentences can result in overly harsh penalties, and that the longer incarceration time can increase recidivism, rather than decrease it. The implications held by the changes proposed to Bill C-22 are that employment opportunities, accessible drug treatments, and alternative sentencing would be a more preferable means of managing Canada’s vulnerable, in lieu of mandatory minimum sentences, whose part in “the war on drugs” seems to have created heavy casualties.
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