Report on Mandatory Sentences - Law Reform Commission

kidnapping; 341 (vi) hostage-taking; 342 (vii) robbery; 343 and (viii) extortion. 344 Finally, the offences of: (i)
sexual assault with a weapon (threats to a third party or causing bodily harm); 345 and (ii) aggravated
sexual assault, also attract a minimum sentence of five years. 346
4.152 The Commission observes that the operation of this minimum sentencing regime has given rise
to controversy. On one side, proponents have asserted that these provisions necessarily respond to a
growth in gun violence in urban centres, particularly in the context of gang-related activities. 347 On the
other side, critics have argued that these provisions are of doubtful deterrent value 348 and excessively
constrain judicial discretion. 349
4.153 In two recent cases concerning firearms offences, sentencing courts have refused to impose the
minimum penalties prescribed by the Criminal Code, asserting that these punishments are grossly
disproportionate. In the first such instance, the Ontario Superior Court concluded that the three-year
minimum sentence provided for the possession of a prohibited or restricted firearm with ammunition
violated the Charter of Rights and Freedoms. 350 In the second instance, the Ontario Court of Justice
declared the minimum three-year sentence prescribed for the trafficking of a prohibited or restricted
weapon to be unconstitutional. 351 Both rulings are currently under appeal. 352
(iii)
Sexual Offences against Children
4.154 The Canadian Criminal Code also prescribes mandatory minimum sentences for certain sexual
offences, where these are perpetrated against children.
4.155 First, the following offences attract a minimum sentence of 90 days’ imprisonment: (i)
householder permitting sexual activity with a child aged 16 or 17 years; 353 (ii) making sexually explicit
material available to a child; 354 and (iii) exposure of genitals for a sexual purpose to a child under 16 years
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345
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347
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349
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351
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353
354
Section 279(1) of the Criminal Code.
Section 279.1(1) and Section 279.1(2)(a)(i) of the Criminal Code.
Section 344(1)(a)(i) of the Criminal Code.
Section 346(1) and Section 346(1.1)(a)(i) of the Criminal Code.
Section 272(1) and Section 272(2)(a.2) of the Criminal Code.
Section 273(1) and Section 273(2)(a.2) of the Criminal Code.
See: “Toronto shootings prompt Toews to criticize courts” CBC News 18 July 2012. Available at:
www.cbc.ca/news/politics/story/2012/07/18/pol-cp-toews-toronto-shooting-political-reaction.html [Last
accessed: 22 May 2013].
See, for example: Editorial “Responding to Gun Violence” (2006) 51(2) The Criminal Law Quarterly 129.
See, for example: Submission of the National Criminal Justice Section of the Canadian Bar Association “Bill
C-2 - Tackling Violent Crime Act” November 2007 at 5. Available at: www.cba.org/cba/submissions/pdf/07-56-
eng.pdf [Last accessed: 22 May 2013].
See: Humphreys “Tory gun laws in jeopardy after judge rejects ‘outrageous’ mandatory sentence” National
Post 13 February 2012.
See: O’Toole “Ontario judge strikes down mandatory minimum sentence for first-offence gun trafficking”
National Post 6 July 2012.
See: Seymour “Judge refuses to sentence man to ‘grossly disproportionate’ mandatory minimum” Ottawa
Citizen 1 May 2013.
Section 171(1)(a) of the Criminal Code.
Section 171.1(1) and Section 171.1(2) of the Criminal Code. A minimum sentence of 90 days applies where
the offender is convicted on indictment. If convicted summarily, the offender will attract a minimum sentence
of 30 days.
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