Report on Mandatory Sentences - Law Reform Commission

4.138 The Sentencing Commission asserted that this disparity can largely be traced to the structure and
severity of mandatory minimum penalties. It observed that mandatory minimum provisions typically use a
limited number of aggravating factors to trigger the prescribed penalty, without regard to the possibility
that mitigating circumstances surrounding the offence or the offender might justify a lower sentence. For
such a sentence to be reasonable in every case, it observed, the factors triggering the mandatory
minimum penalty must always warrant the prescribed mandatory minimum penalty, regardless of the
individualised circumstances of the offence or the offender. It noted that this cannot be the situation for
all cases and thus suggested that Congress should consider whether a statutory “safety valve”
mechanism, similar to the one available for certain drug trafficking offenders, might be appropriately
tailored for low-level, non-violent offenders convicted of other offences carrying mandatory minimum
penalties.
4.139 By contrast with mandatory minimum penalties, the Sentencing Commission observed that
sentencing guidelines prescribe proportional, individualised sentences, based on many factors relating to
the seriousness of the offence and the criminal history and other characteristics of the offender. It
concluded that this multi-dimensional approach to sentencing seeks to avoid the problems inherent in the
structure of mandatory minimum penalties and, for this reason, best serves the purposes of the
Sentencing Reform Act.
(e)
Canada
4.140 Under the first Canadian Criminal Code of 1892, mandatory minimum sentences applied in
respect of six offences, most of which related to corruption. 296 In recent decades, however, Canada has
witnessed a marked increase in the use of this mode of punishment. 297 Minimum sentences are now
prescribed for certain drug offences, firearms offences, sexual offences committed against children, and
serious fraud. In this section, the Commission considers the application of these sentencing regimes to
offenders convicted for the first time of a specified offence. The enhanced minimum penalties applicable
to repeat offenders are addressed in Chapter 5.
(i)
Drug Offences
4.141 Numerous drug offences attract a mandatory minimum sentence under the Controlled Drugs and
Substances Act, as amended. 298
4.142 First, a minimum sentence of one year applies where the following offences are committed in
prescribed circumstances: (i) trafficking in a substance listed in Schedule I or Schedule II to the Act or
any substance represented or held out to be such a substance, 299 and (ii) possessing a substance listed
296
297
298
299
Crutcher “Mandatory Minimum Penalties of Imprisonment: An Historical Analysis” (2000-2001) 44 Crim. L.Q.
279 at 280.
Ibid at 279.
Section 39 - section 46 of the Safe Streets and Communities Act.
Section 5(1) of the Controlled Drugs and Substances Act.
Schedule I lists the following substances, as well as their preparations, derivatives, alkaloids and salts: (i)
opium poppy; (ii) coca; (iii) phenylpiperidines; (iv) phenazepines; (v) amidones; (vi) methadols; (vii)
phenalkoxams; (viii) thiambutenes; (ix) moramides; (x) morphinans; (xi) benzazocines; (xii) ampromides; (xiii)
benzimidazoles; (xiv) phencyclidine; (xv) piritramide; (xvi) fentanyls; (xvii) tilidine; (xviii)
methylenedioxypyrovalerone; and (xix) methamphetamine. The substance referred to in Schedule 2 to the Act
is cannabis, including its preparations, derivatives and similar synthetic preparations. Not included are nonviable
cannabis seed, with the exception of its derivatives, or mature cannabis stalks that do not include
leaves, flowers, seeds or branches; and fiber derived from such stalks.
Section 5(3)(a.1) of the Controlled Drugs and Substances Act, as inserted by section 39 of the Safe Streets
and Communities Act, further specifies that this regime will not apply where the subject matter of the offence is
a substance included in Schedule II in an amount not more than that set out for that substance in Schedule
VII.
160