Tougher Minimum Penalties for Serious Crimes in Canada - Essay Sample

Introduction

Canadian law has historically laid out mandatory minimum penalties (MMPs) for the crimes that are considered most serious under the Canadian Criminal Code such as high treason and murder. For some offences however, certain aggravating circumstances may require the judge to impose a particular type of penalty or a specified length of sentence. Canada has come up with new laws which outline more stern minimum punishment for firearms offences, sexual offences involving children, drugs, and impaired driving. Mandatory minimum penalties in some of these offences are triggered by the aggravating circumstances such as the potency of a drug a dealer gets caught with. Canadian Supreme Court decisions have expressed their concern over the potential for MMPs to be misused, resulting in unjust sentences. Judges McLachlin and Arbour In the 2000 R. v. Morrisey Supreme Court decision took the position that MMPs act as "an inflationary floor, setting a new minimum punishment applicable to the socalled 'best' offender whose conduct is caught by these provisions". Or rather, the MMP should be the punishment that is proportionate to the least serious instance of the offence (R. v. Morrisey 2000). This concept is however not reflected by some mandatory minimums as some of the recent Supreme Court decisions have shown.

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In the case of R. v .Lloyd, it was noted by the majority decision of the Supreme Court that "mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable". This decision also appealed to Parliament to set some controls on MMPs so that they only apply to offenders who ought to get the mandatory minimum penalty (R. v. Lloyd 2016). The goal was to "build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment."

The Court's decision in R. v. Lloyd is the most recent iteration in these kind of cases in which decisions have nullified minimums for violating section 12 which prohibits cruel and unusual treatment. The judge came to the conclusion that the mandatory minimum sentence was not grossly disproportionate to L. This is similar to the decision in the case of R. v. Fergurson where the Court insisted that the mandatory minimum sentence be applied. The case of Mr. Ferguson was however unique in that the court used constitutional exemptions to rule out a possible homicide and in so doing allowed them to remedy a bad mandatory minimum sentence. The arbitration of the constitutionality of mandatory minimum sentences by the Supreme Court of Canada is contradicting to some extent. In some instances, cases challenging the constitutionality of mandatory minimum sentences are brought before the Court on an apparently annual basis. In others, the actual treatment of those cases is quite unlike the regular, revealing divergent, contradictory messages within the narrow range of mandatory minimum sentences jurisprudence, sentencing law more generally, and the definition of Charter rights in general. It could be argued that the appropriate remedy would be to read down s. 231(5)(e) when applied to Aboriginal accused in order to accommodate s. 718.2(e) and the Gladue principles.68 This interpretation, however, would likely be an error in law. The SCC in R v Ferguson69 held that, generally, where a provision is found to be grossly disproportionate in effect to even one person, striking the entire provision is a less intrusive remedy because it allows Parliament to respond to the constitutional defect.70 Therefore, if a court finds that s. 231(5)(e) fails to take into account the moral blameworthiness of an Aboriginal accused is unconstitutional, then the appropriate remedy would be to strike down the entire provision.

The court set high standards that guide in establishing whether a mandatory minimum is capable of inflicting cruel and unusual punishment. The SCC's decision in R v Nur, 2015 became the second time in the post-Charter era that the SCC struck down a mandatory minimum sentence as unconstitutional (Allen, 2017). According to Section 213 of the Criminal Code, murder committed in conjunction with unlawful confinement is elevated to first-degree murder. The Supreme Court of Canada declared this provision was constitutional in R v Luxton, since it did not violate the principles of fundamental justice and was not considered cruel and unusual punishment. These decisions all involved constitutionally challenging sentencing provisions causing some critics to view them as counterproductive to the fight against crime.

While the decision in R. v. Luxton would be deemed binding, the SCC noted that lower courts need to consider special circumstances before making a ruling on this precedent. In the Nur case, the SCC held that mandatory minimums are not unconstitutional per se. As stated in chapters 3 and 35 of the majority's judgment, ''Mandatory minimum sentences...apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional.'' These are among some of the remarks that are bound to be considered precedents in future challenges to mandatory minimums.

Statutory interpretation is the act of a court trying to establish the meaning of a legislative text. A big percentage of cases heard by the SCC involve determining the meaning of words contained in a statute. There are three theoretical fibers that emerge in recent judgments of the Supreme Court of Canada with regard to statutory interpretation. These are textualism , which is also known as literalism, intentionalism, and pragmatism (Solan& Lawrence, 2016). Textualism is based on the proposition that the meaning of the legislative text is the only reliable indicator of the intention of the legislation. There is no need for further interpretation if the meaning of a legislative text can be discerned clearly. The implication of this on the R. v. Lloyd case is that it Mr.Lloyd was able to challenge constitutionality of the provision under sections 7, 9, and 12 of the Charter (Stuart, 2016). Intentionalism as a second approach to statutory interpretation focuses on the intentions of the lawmakers. This kind of focus gives priority to legislative history prompting the jury to provide clear evidence of the effects, purposes and applications the legislative body intended. Both textualism and intentiuonalism have been criticised as being incomplete and helping the courts to hide as opposed to explain how the decisions are arrived at. Pragmatism lays emphasis on the meaning of the text, the intention of the legislature and in addition the role played by principles made by judges, their presumptions and their value.

Section 5 of the CDSA set a one-year mandatory minimum for any person convicted of trafficking or of possession for the purpose of trafficking certain amounts of Schedule I, II, III or IV substances. The offender must have been "convicted of a designated substance offence or ... served a term of imprisonment for a designated substance offence within the previous 10 years," for the mandatory minimum to be considered applicable. A "designated substance offence" is defined in section 2.1 of the CDSA as any offence under Part 1 of the CDSA apart from simple possession. The determination of the meaning of these words in reference to the case of Lloyd relies purely on the face-value meaning of the text. Lloyd had been convicted of possession of drugs for the purpose of trafficking and considering his previous offence had been sentenced to one year mandatory minimum imprisonment. When the court considered the fact that Lloyd the offender was a drug addict as well as a dealer, it convicted him for possession for the purpose of trafficking, and sentenced to prison time.

Precedents can be defined as court decisions which affect future cases. Precedents are important because they enable judges to make rulings that are as consistent as reasonably possible with previous judicial rulings on a particular subject (Solan& Lawrence, 2016). There are two characteristics of precedent; first it is dynamic and secondly it is static. Being dynamic ia what allows it to be used in similar cases in the future whereas being a static mechanism maintains consistency with the law. Each of the three cases compared to the Lloyd case took place before 2016, when the Lloyd case did. The Nur case is of great importance to the R. v. Lloyd case as it sets a precedent for testing a gross disproportionate sentence . The test defines a sentence as a "cruel and unusual punishment" in violation of Section 12 where it is "grossly disproportionate" to "the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender" (para 22). From the case of R. v. Nur, a 2-step process of analyzing a sentence was set out such that the court has to determine what constitutes a proportionate sentence having regard to the objectives and principles of sentencing in the Criminal Code; and determine whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate (para 23). The case of R. v. Ferguson proved that it cannot be concluded on the basis of reasonable hypotheticals analysis that the mandatory minimum sentences are constitutional in all circumstances (Allen, 2017). For this reason, Lloyd was able to argue that a one-year mandatory minimum could be deemed grossly disproportionate in some cases although it was not so in his case. The case of Nur employs the doctrine of judicial precedent and helps courts reach decisions by using previously decided case law.

It is rare for the SCC to overturn rulings involving mandatory minimum sentences. As precedent in the case of R. v. Luxton however, the court held the mandatory minimum sentence for the first-degree murder of a victim who had been placed under unlawful confinement. This became an example of a case in which the mandatory minimum sentence does not infringe s.12 which is a major consideration in the case of Lloyd. An offender who knowingly took his victim captive and killed them cannot be said to bear the same moral responsibility as an addict who was simply in possession of drugs for his own use.

Conclusion

In summary, changes to the criminal code in the last twnety years have resulted in the introduction of or increase to the mandatory minimum penalties for a number of offences. For firearms related offences, the MMPs were increased in 2008 includong increasing notably the length of custodial sentences handed by court. . In 2013, the Ontario Court of Appeal ruled that the mandatory minimum penalty for this offence was unconstitutional and in 2015 the Supreme Court struck down the mandatory minimum penalties. This decision with respect to the possession of prohibited firearms and other offences had an effect on other crimes. As noted in the R. vc. Lloyd case t "mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable" (R. v. Lloyd 2016). As the decision of the SCC in R. v. Nur demonstrated, mandatory minimum sentences for offences that can be commited in varied ways under many circumstances by a wide range of people are vulnerable to violating the s.12 provisions of an accused person. The government has put these decisions in considerattion and is currently reviewing legislation regarding mandatory minimum p...