The Return of Mandatory Minimums: C-16’s Charter Safety Valve and the Return of the Inflationary Floor

By: Min. E. Mums

Introduction:

Parliament has put mandatory minimum penalties back at the center of Canadian sentencing policy after a decade of court decisions striking down minimums that produce grossly disproportionate outcomes. In the latest iteration, Bill C-16 keeps mandatory minimums in place for offences that carry a minimum term of imprisonment.[i] It also adds a Charter safety valve that lets judges go below the floor when the minimum would amount to cruel and unusual punishment for the offender before the court.[ii]

In this blog, I argue that the safety valve appears to be Charter compliant,  it risks entrenching the deeper problem that mandatory minimums create. This problem is that mandatory minimums tend to create an inflationary floor. In essence, once Parliament sets a minimum jail term, this number becomes the reference point, and sentences tend to rise across cases where mandatory minimums apply. This inflationary effect would likely produce unconstitutional punishment under section 12 of the Charter.

Background and Legal Context:

Mandatory minimums sit uneasily alongside Canada’s sentencing regime, which prioritizes individualization.[iii] The most fundamental principle of sentencing starts from proportionality, which asks whether the sentence matches the gravity of the offence and the offender’s degree of responsibility.[iv] The Criminal Code also directs courts to consider restraint, rehabilitation, and alternatives to incarceration where judges see fit.[v]

In contrast, a mandatory minimum requires a judge to impose a set amount of jail time for an offence.[vi] These  minimum limits a judge’s ability to tailor the sentence to the facts of the case and to the offender. It also narrows a judge’s ability to give meaningful effect to Gladue and other contextual principles in cases where incarceration does not fit the offender’s moral blameworthiness.[vii]

Mandatory minimums also reshape discretion across the system in ways the public will not see in a judge’s written reasons. Once Parliament sets a floor, the Crown often controls whether the floor applies through early choices made before sentencing even happens.[viii] On hybrid offences, for example, the Crown can usually choose to proceed by indictment or by summary conviction.[ix] This choice can determine whether a mandatory minimum jail term is triggered or avoided.[x]

Section 12 as the Constitutional Check:

Section 12 of the Charter protects against cruel and unusual punishment.[xi] In the mandatory minimum context, courts use section 12 to test whether Parliament’s fixed jail term produces proportionate sentences across the range of offences captured under a Criminal Code provision. Throughout the mandatory minimum section 12 cases, judges begin with a comparison.[xii] The court identifies a fit sentence using proportionality and the ordinary sentencing principles, then compares it to the mandatory minimum.[xiii] If the minimum forces a sentence that is excessive, it is deemed grossly disproportionate, in the sense Canadians would view it as intolerable, the minimum violates section 12.[xiv]

By using this standard, appellate courts have invalidated mandatory minimums at a striking rate over the last decade and a half. A survey of appellate decisions reported 41 cases between 2008 and March 2023 challenging 51 mandatory minimum provisions, with courts finding a Charter violation in 39 challenges.[xv] The key takeaway from the jurisprudence is why these sentences fail. Mandatory minimums become vulnerable when a single offence captures conduct across a wide range of seriousness, yet the law imposes the same custodial floor in every case. The minimum restricts judicial discretion precisely where sentencing law depends on it, limiting the judge’s ability to account for meaningful differences in culpability, context, and risk.[xvi]

These cases provide the constitutional backdrop to Bill C-16. Parliament faced repeated judicial decisions recognizing rigid floors can collapse proportionality in predictable low-end situations, especially in offences drafted broadly enough to capture very different conduct under a single offence.

Bill C-16’s Mandatory Minimum Reforms:

Bill C-16 does not roll back mandatory minimums. It keeps the sentences in place and adds one new exception aimed at avoiding the clearest Charter problems. The exception appears in a new Criminal Code provision, section 718.4. This provision states that when an offence carries a mandatory minimum jail term, the judge must still start from that floor.[xvii] However, the judge can go below the floor if applying the minimum to the person before the court would amount to cruel and unusual punishment under section 12.[xviii] When the judge uses this safety valve, the judge must explain the decision in reasons on the record.[xix]

Bill C-16 also places limits on how often this exception will apply. Section 718.4 does not apply when the minimum punishment is life imprisonment, meaning the safety valve is off the table for the most severe minimums.[xx] The provision also makes clear that it does not affect the operation of section 320.23, which preserves certain impaired driving sentencing rules.[xxi] These carve-outs matter because they show Parliament did not create a broad “interests of justice” discretion. These carve-outs signal that Parliament wants the safety valve to operate narrowly, only in cases that it perceives to raise a true section 12 problem.

Why Bill C-16 still Risks Section 12 Non-Compliance:

My concern starts with what mandatory minimums do in ordinary sentencing, not only in the rare case where a judge can point to an obviously intolerable outcome. The best evidence I have seen on this comes from Canadian sentencing data examining what happened after Parliament introduced new mandatory minimum jail terms for child-related sexual offences and child pornography offences.[xxii] The study found a clear increase in the rate of custody after the policy change, with the largest shifts in child pornography cases.[xxiii] For child pornography offences, the custody rate after conviction rose by 60.4 percentage points for summary matters and 53.4 percentage points for indictable matters. [xxiv]

The study also found that sentence lengths moved upward well beyond the new floors.[xxv] It reported that for child pornography offences, average sentence lengths increased by about 300 percent of the newly imposed minimum for summary convictions, and by about 100 percent for indictable convictions.[xxvi] When the authors examined the distribution more closely, they found the upward shift spread across large parts of the sentencing range.[xxvii] 

The problem is that Bill C-16 does not remove the conditions that produced those shifts. It keeps the floor in place, then adds a narrow escape hatch designed for the rare case that crosses the section 12 line in the courtroom. In practice, the inflationary floor operates due to its nature. In essence, mandatory minimums change the starting point for everyone. It changes what Crowns seek, what defence counsel advises, and what judges come to treat as the normal range for the offence, even in cases where the minimum does not bind in a mechanical sense.

From this data, it is likely that the safety valve does not solve the underlying constitutional concern. Section 718.4 asks a judge to decide whether the minimum would amount to cruel and unusual punishment for the offender before the court. This standard will only capture the exceptional case. It will not capture the broader upward drift, because most of the sentences affected by an inflationary floor will still look facially defensible, case by case. Instead, these sentences will be harsher than the pre-minimum baseline, yet each sentence can still appear reasonable on its own facts, making  it hard for a court to label any single outcome grossly disproportionate.

Conclusion:

Bill C-16 brings  mandatory minimums back to the forefront of sentencing policy. In essence, Parliament keeps mandatory minimums and adds a safety valve that prevents the clearest injustice in the exceptional case. This approach may reduce the number of section 12 violations, but it does not address the deeper problem an inflationary floor creates across ordinary cases. It is important to remember that a sentencing system can look Charter compliant on the surface while custody becomes more common and jail terms become longer in practice.

If Parliament wants durable sentencing reform, it needs reform sentencing beyond a floor plus an escape hatch. The next step should be a serious political choice about what reduces harm and increases safety, paired with laws that reflect proportionality rather than replace it. This distinction means demanding better, well-thought-out reform from elected officials than the same cycle of tougher minimums followed by predictable constitutional challenges. Mandatory minimums have already shown what they do. Canadians should insist on a sentencing policy that works, that can survive constitutional scrutiny, and that does not rely on harsher punishment as a substitute for evidence, nuance, and accountability.

Endnotes

[i] Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures)), 1st Sess, 45th Parl, 2025.

[ii] Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures)), 1st Sess, 45th Parl, 2025, cl 718.4.

[iii] Sarah Chaster, “Cruel, Unusual, and Constitutionally Infirm: Mandatory Minimum Sentences in Canada” (2018) 23 Appeal 89 at pages 90 and 91.

[iv] Ibid.

[v] Criminal Code, RSC 1985, c C-46, s 718.

[vi] Sarah Chaster, supra note 3 at pages 92 to 93.

[vii] Ibid.

[viii] Sarah Chaster, supra note 3 at pages 94 to 95.

[ix] Ibid.

[x] Ibid.

[xi] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 12.

[xii] Janani Shanmuganathan, “R. v. Nur: A Positive Step but not the Solution to the Problem of

Mandatory Minimums in Canada” (2016) 76 The Supreme Court LR 330 at pages 330 to 331.

[xiii] Ibid.

[xiv] Ibid.

[xv] Brendan Dell, “Return to Smith? Harper-Era Mandatory Minimum Sentences in Canadian Courts (2008–2023)”, (2024) 55 Ottawa LR 327 at page 345.

[xvi] Brendan Dell, supra note 15 at pages 347 to 350.

[xvii] Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures)), 1st Sess, 45th Parl, 2025, cl 718.4.

[xviii] Ibid.

[xix] Ibid.

[xx] Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures)), 1st Sess, 45th Parl, 2025, cl 718.4(2).

[xxi] Bill C-16, An Act to amend certain Acts in relation to criminal and correctional matters (child protection, gender-based violence, delays and other measures)), 1st Sess, 45th Parl, 2025, cl 718.4(3).

[xxii] Jeffery Penny et al., “Mandatory minimum sentencing and its effect

on sentencing distributions: Evidence from Canada”, (2024) 57 Canadian J of Economics 55 at pages 69 to 72.

[xxiii] Ibid.

[xxiv] Ibid.

[xxv] Ibid.

[xxvi] Ibid.

[xxvii] Ibid.