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Mandatory Minimums: A Miscarriage of Justice by Jan Kelley

Are mandatory minimum sentences (MMS) benefiting offenders in the Canadian Criminal Justice System (CJS) or are they leading to miscarriages of justice? A significant array of scholarly articles and court cases lean towards mandatory minimums being a part of the downfall of the CJS. MMS are leading to a variety of miscarriages of justice by targeting Aboriginal offenders for specific offences, placing limits on the use of Criminal Code section 718.2 (e), leading to false pleas and creating harmful punishment for youth. These issues are acknowledged in journal articles, but the concerns of MMS are also relevant in courtroom cases such as R v Vandyke and R v Nur.

MMS create miscarriages of justice within the system due to the inadvertent impact they have on Aboriginal offenders. When a case involves an Aboriginal offender specifically, judges are supposed to reference Criminal Code section 718.2 (e) in considering all other available sanctions rather than imprisonment and to consider all circumstances in relation to the offender and the offence.1 Mandatory minimums do not allow for alternative sentencing options other than prison due to the set sentence length created for particular offences, which limits a judges use of the Criminal Code section 718.2 (e). MMS specifically targets Aboriginal populations for three main reasons as stated by Chartrand (2001): it limits the use of Gladue factors; it targets crimes specific to what Aboriginal people are committing such as violent crimes; and it targets their use of firearms due to cultural reasons such as hunting. Chartrand (2001) expressed that in Australia the rates of Aboriginal offenders kept increasing once mandatory minimums were established and the same results were expected for Canada. This leads to a miscarriage of justice for Aboriginal offenders as the system is systemically against them at every point within the process and has only escalated since judges are forced to give the MMS.

Mandatory minimums are not only impacting Aboriginal people, they are also causing miscarriages of justice against youth within the CJS. This is due to the detrimental impact that occurs when a youth is given an adult sentence that holds a mandatory minimum. Laxer (2013), points out that although youth do not have set MMS, if he or she is given an adult sentence with a mandatory minimum it may exceed the max sentence set out by the Youth Criminal Justice Act (YCJA). This is a miscarriage of justice for youth as prison sentences are destructive and the long mandatory minimums can result in even longer sentences than desired. The problem with giving youth mandatory minimums is the significant difference in mental development amongst youth, as well as the moral culpability can be minimal depending on the mental development of the youth.2 Forcing youth into prison at a young age creates a struggle when trying to reintegrate back into society and creates more hurdles for the youth to overcome.2 Allowing the system to enforce mandatory minimums on youth leads to miscarriages of justice that are affecting youth in a significant way.

One of the most significant effects MMS have on wrongful convictions is that it forces an accused to plead to a lesser charger or make a false plea. These wrongful convictions can occur on a regular basis within the CJS without being detected. As the CJS is back logged and overloaded prosecutors will try to keep several cases out of the court to save time and money. This results in offering a plea deal to an accused who pleads guilty to a lesser charge, even though the accused is innocent.3 The reason for an innocent person pleading guilty to a crime is due to the mandatory minimum that the original charge may hold and pleading guilty may result in a less severe sentence.3 An innocent individual will plead guilty to a lesser charge of probation rather than taking the chance of going to trial and getting a mandatory minimum prison sentence. Therefore, mandatory minimums pressure innocent people into making plea deals for fear of getting the longer sentence, even though they did not commit the crime.3 Examples of this can be seen regarding more serious crimes such as murder and pleading guilty to manslaughter or more miniscule crimes. Innocent people pleading guilty to crimes is another way that MMS creates miscarriage of justice and leads to wrongful convictions within the CJS.

Finally, the two cases R v Nur and R v Vandyke reflect how MMS are questioned within the CJS. The case of R v Nur involves a 19-year-old who was charged under section 95 of the Criminal Code due to the possession of a firearm. There were no intentions for the individual to use the weapon and the accused had a low level of moral blameworthiness, however the offence carries a mandatory minimum of three years.5 The defence argued that this was cruel and unusual punishment and went against the accused’s Charter rights.5 This case shows the implications of using mandatory minimums, especially the impact they have on young first-time offenders who could be rehabilitated in a more efficient way rather than sent to prison. Nur shows how the judge failed to consider mitigating circumstances of the offence due to the mandatory minimums implemented.

A similar case, R v Vandyke, also involved limited moral blameworthiness and no clear intention to break the law; however, the accused was charged with a sentence that holds a mandatory minimum. Mr. Vandyke had brought his gun into the bar with him as he was going to leave his car in the parking lot over night.6 When he was going to show a fellow bar mate his gun in a non threatening way, he was arrested under section 95 of the Criminal Code which has a MMS.6 There were no intentions of using the weapon in a harmful matter, but due to the mandatory minimums he would have been forced to serve three years in prison if his defence lawyer did not make a Charter challenge.6 These cases emphasize the way that mandatory minimums create miscarriages of justice for individuals by not considering the circumstances of a particular case and how it can be seen as cruel and unusual punishment to some offenders.

However, there is hope within the CJS that less emphasis will be put on mandatory minimums due to a new bill that has the potential to be passed. This new bill (S-208) would give judges the discretionary powers to consider other alternatives to the mandatory minimum of the offence.4 The bill would also require an explanation from judges as to why the offender does not deserve the mandatory minimum and or what conditions should be imposed as an alternative.4 This bill would help to ameliorate the issues of wrongful convictions and miscarriages of justice that occur due to the implementation of mandatory minimums. The targeting of Aboriginal people, limiting the use of section 718.2 (e), plea deals and the unjust treatment to youth, are all miscarriages of justice that arise from mandatory minimums which can easily be eliminated if Canada were to abolish the use of the mandatory sentencing.



1 Chartrand, L. N. (2001). Aboriginal peoples and mandatory sentencing. Osgoode Hall Law Journal, 39(2 & 3), 449-468.

2 Laxer, J. (2013). The constitutionality of mandatory minimum sentences for youth. Criminal Law Quarterly, 60(1), 71-91.

3 Martin, D. L. (2001). Distorting the prosecution process: Informers, mandatory minimum sentences, and wrongful convictions. Osgoode Hall Law Journal, 39(2 & 3), 513-528

4 Public Bill (Senate) S-208 (43-1) - First Reading - An Act to amend the Criminal Code (independence of the judiciary) - Parliament of Canada. (n.d.). Retrieved from

5 R. v. Nur, 2015 SCC 15


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