• Ariq Hawkeye (law student)

Rethinking Courts Mandating Against Mandatory Minimums - a student perspective

Many of the laws of Ancient Athens came from a man named Draco. Draco codified the customary, informal, and esoteric laws of Athens into a coherent and written legal code which could be read by all. In it, the penalty for failing to pay a debt to a person of higher social standing was enslavement and for unintentional murder as exile. The penalty for most other crimes, including theft of a simple cabbage or apple, was death. When asked why a murderer might get the same penalty as a market thief, Draco was said to have expressed that the lesser crime deserved a penalty of death, and that he could think of no worse penalty for any worse crime.

Many today, and, perhaps also at the time found this law code overly harsh. From Draco, we derive the term “draconian.” Nonetheless, the parable, apocryphal or not, does open up an interesting question, by what measure do we determine what is adequate punishment or retribution for any particular crime? This question is especially pertinent in an era of mandatory minimum sentences and courts challenging them as being against the Charter.

Section 12 of the Canadian Charter of Rights and Freedoms holds that, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” Most notably, this section of the Charter has been used by courts to strike down mandatory minimum penalties for certain offences as unconstitutional. Critics of mandatory minimums believe that they can be unnecessarily harsh in restricting judicial discretion in circumstances where the offence is not serious enough to warrant even the minimum proscribed penalty.

Interestingly, in the time since the Charter was enacted, the number of mandatory minimum penalties in Canadian law has grown considerably. In 1982 there were only 6 mandatory minimums in the Criminal Code of Canada. As of 2016, there were nearly 80, with even more in other legislation such as the Controlled Drugs and Substances Act.

Mandatory minimums have been struck down for offences ranging from sexual interference, to possession of child pornography, to drug trafficking, weapons trafficking, and luring of children. These are all crimes of considerable magnitude.

Deciding whether any of these is fair involves careful considerations of societal values. To begin, how heinous or unacceptable a crime is, is a dynamic concept that will often develop and change over time. One need only look at how attitudes surrounding the seriousness of drinking and driving have shifted over the last 50 years for evidence of how such a change can take place. Much like in the story of Draco, what is fair punishment to one may be cruel and unjust to another.

Then, it must be considered just what is the purpose that the minimums are trying to fulfill and the relative importance of how we weigh each factor. If deterrence of future crime and criminals is a primary aspect of why we impose a harsher sentence, what seems like an overly harsh sentence in an individual case may still be justified on the grounds of how it may deter potential future offenders. A model which considers vindicating victims and sending a strong message to society that certain behaviours are inherently immoral or wrong might similarly impose a harsher penalty then seems warranted in the individual case, for the broader effects it could have on society and the message it may send.

Mandatory minimums ultimately ensure that culprits for serious crimes are not let off the hook without some level of retribution for their actions. While one may be able to define paradigmatically what is cruel and unusual punishment (such as a mandatory death penalty for stealing cabbage) it is difficult to say that a mandatory minimum of 1-year imprisonment for a repeat drug offender who is convicted of drug trafficking is inherently “cruel and unusual punishment.”

Nonetheless, this is what the Supreme Court determined in the 2016 case of R v Lloyd. In fact, it would probably come as a greater shock to the community that there was potential for such an offender to escape with less than one year of imprisonment. Even though there are fair arguments to be made for what an appropriate mandatory minimum for such a sentence ought to be, it seems arbitrary to state that a one-year sentence is inappropriate.

Similarly, lower court rulings on mandatory minimums are highly debatable. Whether five years for the intentional discharge of a prohibited firearm in a public place, or while being reckless about the safety of another person, one year in prison for sexual interference (sexual activity between an adult and a person under 16), 90 days for possession of child pornography, two years in prison for drug trafficking near people under 18 or using children, or three years for weapons trafficking are appropriate or not are all fair points for debate. Nonetheless, it seems unreasonable to say that any of these, even in the case of a hypothetical sympathetic and minimally culpable party, are inherently cruel and unusual punishment. In fact, all of these represent the courts tipping uncomfortably close to political calculations.

This is even more true when courts attempt to justify mandatory minimums not being appropriate due to the moral failings or troubled backgrounds of perpetrators. The weight that ought to be given to such Freudian excuses is naturally questionable. The level of discretion that ought be provided to courts is a fair debate, as is the value that should be ascribed to bleeding hearts who hesitate to hold persons responsible for their actions.

Nonetheless, the courts striking down mandatory minimums as unconstitutional prevents such considerations from being debated and weighed in the public sphere against countervailing factors like ensuring perpetrators are held accountable for their actions, deterring behaviour or actions society finds reprehensible or harmful, protecting the integrity of the justice system, and vindicating victims.

Ultimately, these factors and others must be balanced with other values in the justice system, such as promoting rehabilitation and ensuring fairness for individual actors given their individual situations. Certainly, some level of discretion ought to be given to judges in most circumstances to distinguish more culpable and egregious cases from cases that are less so. More flexible sentences also allow for more flexible plea bargaining, in theory helping to keep the justice system moving briskly along. Nonetheless, the overly-critical position that the court takes on mandatory minimums unduly weighs these over reasonable countervailing factors.

In fact, balancing these competing values and imperatives is an inherently political act. Canadians select their elected officials so that they can weigh exactly these sorts of competing moral, ethical, practical, and philosophical considerations. Courts should thus be extremely cautious in striking down mandatory minimums, as such actions take these considerations out of the hands of the legislature and political debate, instead restricting important questions to the courts.


Pivot Legal Society/Union of BC Indian Chiefs, “Supreme Court strikes down another mandatory minimum sentence” (15 April 2016) < https://www.ubcic.bc.ca/scc_lloyd> [https://perma.cc/4Y6W-JUL6].

R v Lloyd, 2016 SCC 13.

Sean Fine “Mandatory-minimum sentencing rules unravelling into patchwork”, The Globe and Mail (4 March 2018) < https://www.theglobeandmail.com/news/national/mandatory-minimum-sentencing-rules-unravelling-into-patchwork/article38205652/> [https://perma.cc/TKW6-RRMV].

The Canadian Criminal Law Notebook – Maximum and Minimum Sentences <http://criminalnotebook.ca/index.php/Maximum_and_Minimum_Sentences> [https://perma.cc/UW49-43JG].

#MandatoryMinimums #RvLloyd