Mandatory minimum penalties of imprisonment and Bill C-16

Backgrounder

What are mandatory minimum penalties of imprisonment?

A mandatory minimum penalty of imprisonment is a legislated sentencing floor (i.e., the shortest possible jail time) for specific crimes. At sentencing, a judge cannot impose less than the minimum sentence but can impose more than it. The Criminal Code contains approximately 60 offences punishable by mandatory minimum penalties of imprisonment. The Immigration and Refugee Protection Act also includes an offence punishable by mandatory minimum penalties of imprisonment.

Many mandatory minimum penalties have been struck down by courts on the basis that they violate section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment. For example, in R v Senneville, the Supreme Court of Canada struck down two different one-year mandatory minimum penalties of imprisonment for possessing and accessing child sexual abuse and exploitation material.

What is being proposed?

To ensure mandatory minimum penalties remain strong, enforceable, and constitutional, this legislation aims to strengthen all mandatory minimum penalties of imprisonment, including those in the Criminal Code. It would do so by allowing judicial discretion to order another sentence of imprisonment in rare cases where applying the specific mandatory minimum would be grossly disproportionate punishment for the offender, except for murder and high treason. In every case, real jail time would still be required.

The Supreme Court of Canada has provided guidance on how mandatory minimum penalties can be applied and comply with the Charter. The proposed legislation respects that guidance.

The legislation would protect mandatory minimum penalties of imprisonment against being struck down in the future because it would prevent those penalties from applying in circumstances that would violate the Charter.

MMPs that have been found unconstitutional

When an MMP is found unconstitutional, other courts bound by the ruling can no longer impose it, even if the MMP remains on the books. The introduction of judicial discretion would mean that MMPs that have been found unconstitutional by the courts would become operative again.

The Supreme Court of Canada, provincial Courts of Appeal and trial courts have all found MMPs unconstitutional. Examples of where appeal courts have found MMPs unconstitutional include:

Offence MMP Status
Weapons trafficking – first offence 3 years

Struck down in Quebec
Importing or exporting weapons – first offence 3 years

Struck down in Quebec
Sexual interference – indictable 1 year

Struck down in Nova Scotia, Quebec, Manitoba, British Columbia, Alberta, and Ontario
Sexual interference – summary 90 days

Struck down in Yukon and Northwest Territories
Sexual exploitation – indictable 1 year

Struck down in Nova Scotia, and Yukon
Sexual exploitation – summary 90 days

Struck down in Yukon
Making, printing of child sexual abuse and exploitation material 1 year

Struck down in Ontario
Distributing child sexual abuse and exploitation material 1 year

Struck down in Ontario
Possession of child sexual abuse and exploitation material – indictable 1 year

Struck down by the Supreme Court of Canada
Possession of child sexual abuse and exploitation material – summary Six months

Struck down in British Columbia, Quebec:
Accessing child sexual abuse and exploitation material – indictable 1 year

Struck down by the Supreme Court of Canada
Luring a child Indictable- 1 year 
Summary - six months

Struck down by the Supreme Court of Canada
Sexual assault, against a person under 16 years of age - indictable 1 year

Struck down in Newfoundland and Labrador and Ontario
Sexual assault with a weapon, threats to a third party, or causing bodily harm, against a young person under 16 years of age 5 years

Struck down in Quebec
Obtaining sexual services for consideration from person under 18 years – first offence Six months

Struck down in Ontario, Quebec, British Columbia
Obtaining material benefit from child prostitution 2 years

Struck down in Ontario
Procuring person under 18 years 5 years

Struck down in Ontario

Glossary of terms

Summary conviction offence
Court process for less serious criminal offences, usually without a jury. These offences carry lighter penalties, typically up to a $5,000 fine or two years less a day in jail.
Indictment
Formal written accusation initiating a criminal proceeding for serious (indictable) offences, usually in a superior court. Indictments allow for more complex trials, sometimes with a jury.