Report on Mandatory Sentences - Law Reform Commission

4.145 The offence of producing a substance listed in Schedule II 310 (other than marijuana) attracts a
minimum sentence of one year if the production is for the purpose of trafficking. 311 A minimum sentence
of 18 months applies if the production is for the purpose of trafficking and if any of the aggravating factors
listed in section 7(3) of the Act (as outlined at paragraph 4.144) apply. 312 Where the subject matter of the
offence is cannabis, the Act prescribes minimum sentences ranging from six months to three years. The
applicable minimum sentence is determined by the number of plants produced and whether any of the
aggravating factors listed in section 7(3) of the Act are present. 313
4.146 Section 10 of the Controlled Drugs and Substances Act provides that a court may delay
sentencing an offender convicted of any of the foregoing offences in order to enable the offender to
participate in a drug treatment court program approved by the Attorney General, or to attend a treatment
program approved by the province under the supervision of the court. If the offender successfully
completes such a program, the court is not required to impose the prescribed minimum sentence.
4.147 Dupuis observes that vigorous debate surrounded the introduction of these minimum
sentences. 314 On one side, it was argued that mandatory sentencing for drug offences: (i) addresses the
(perceived) problem of judges prioritising the rehabilitation of offenders over crime deterrence and the
right of law-abiding citizens to go about their lives without fear; (ii) destroys the criminal infrastructure that
keeps the crime cycle going; (iii) encourages addicts to choose drug treatment programmes rather than
go to prison; (iv) is an important deterrent and denouncement by society; and (v) incapacitates offenders
by keeping them off the streets. On the other side, it was argued that mandatory sentencing: (i) strips
judges of discretion in sentencing; (ii) risks turning Canadian prisons into “US-style inmate warehouses”;
(iii) draws funds away from social programmes; and (iv) has not proven to be an effective deterrent. 315
Concerns have also arisen that this sentencing regime will impact most heavily on marginalised groups
(particularly aboriginal people) who are already disproportionately represented in the Canadian prison
system. 316
(ii)
Firearms Offences
4.148 The Canadian Criminal Code prescribes mandatory minimum sentences for certain offences
involving firearms and/or other weapons.
4.149 First, the following offences attract a minimum one-year sentence: (i) using a firearm in the
commission of an offence; 317 (ii) using an imitation firearm in the commission of an offence; 318 (iii)
310
311
312
313
314
315
316
317
Section 7(1) of the Controlled Drugs and Substances Act.
Section 7(a.1)(i) of the Controlled Drugs and Substances Act, inserted by section 41 of the Safe Streets and
Communities Act.
Section 7(a.1)(ii) of the Controlled Drugs and Substances Act, inserted by section 41 of the Safe Streets and
Communities Act.
Section 7(2)(b) of the Controlled Drugs and Substances Act, inserted by section 41 of the Safe Streets and
Communities Act.
Dupuis Legislative Summary of Bill S-10: An Act to Amend the Controlled Drugs and Substances Act and to
make related and consequential Amendments to other Acts (Parliament, No 40-3-S10E, 2010) at 15.
Available at:
www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.aspls=s10&source=library_prb&Parl=40&Se
s=3&Language=E#fn20. [Last accessed: 22 May 2013].
See also: McLemore “Why Canada should reject the Bill S-10” (Human Rights Watch, 2011).
Bernstein and Drake “In Canada’s ‘war on drugs,’ aboriginals are the biggest victims” National Post 6
November 2012; Everett-Green “Law and Disorder: What Bill C-10 could mean for Canada’s native people”
The Globe and Mail 17 February 2012; and Sewrattan “Apples, Oranges and Steel: The Effect of Mandatory
Minimum Sentences for Drug Offences on the Equality Rights of Aboriginal Peoples” (2013) 46(1) UBC Law
Review 121.
Section 85(1) and Section 86(3)(a) of the Criminal Code.
162