What Makes a Mandatory Minimum Sentence Cruel and Unusual Punishment?

• In Event: Sentencing Practices & Policies

Abstract

This study investigates recent case law striking down mandatory minimum sentencing laws in Canada. Between 2006 and 2015, Canada’s Conservative federal government dramatically increased the number of Criminal Code and Controlled Drugs and Substances Act offences which carry a mandatory minimum period of incarceration. At present, approximately 100 offences carry a period of mandatory incarceration. In 2015 the Supreme Court of Canada struck down a provision that imposed a mandatory incarceration term for a firearms-related offence, holding it to be cruel and unusual punishment. In 2016 the same court struck down a mandatory incarceration penalty provision for a drug trafficking-related offence. In the interim, lower courts have begun to strike down other provisions setting out mandatory periods of incarceration. This study reviews the recent case law developments and concludes that it is possible to identify many mandatory minimum penalties that are in jeopardy of being struck down. Accordingly, we conclude that it is time for Canada’s new government to repeal many of the mandatory penalties created over the past decade.

Authors

• David MacAlister, Simon Fraser University

• Kayla Barkase, Simon Fraser University