Report on Mandatory Sentences - Law Reform Commission

(iv)
Federal Government
5.58 At federal level, 18 USC 3559(c) prescribes a mandatory life sentence in respect of an offender
convicted of a serious violent felony 96 who has at least two prior state or federal serious violent felony
convictions, or who has one or more of these convictions plus one or more state or federal serious drug
convictions. 97 Other than the first such offence, each serious violent felony or serious drugs offence must
have been committed after the conviction of the offender of the preceding serious violent felony or serious
drugs offence.
5.59 Section 3559(e) also requires that a person convicted of a federal sex offence 98 in which a
minor is the victim (who is not sentenced to death for that offence) be sentenced to life imprisonment if he
or she has a prior federal or state conviction for a sex offence in which a minor was the victim. In this
context, a “prior conviction” means a conviction for which the sentence was imposed before the conduct
constituting the subsequent federal sex offence occurred.
(e)
Canada
5.60 In Canada, certain repeat firearms offences attract a mandatory minimum sentence of
imprisonment.
(i)
Firearms Offences
5.61 Under the Criminal Code, an offender will attract an enhanced minimum sentence where: (a)
he or she has a prior conviction for a specified firearms offence, or for using a firearm in the commission
of a specified violent offence, and (b) he or she is subsequently convicted of another such offence. 99
5.62 First, where this constitutes his or her second conviction for a specified offence, an offender
convicted of one of the following firearms offences will attract a minimum one-year sentence: (i)
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A “serious violent felony” means: (i) a Federal or State offence, by whatever designation and wherever
committed, consisting of murder...; manslaughter other than involuntary manslaughter...; assault with intent to
commit murder...; assault with intent to commit rape; aggravated sexual abuse and sexual abuse...; abusive
sexual contact...; kidnapping; aircraft piracy...; robbery [subject to subsection 3559(c)(3)(A)]...; carjacking...;
extortion; arson [subsection 3559(c)(3)(B)]; firearms use; firearms possession...; or attempt, conspiracy, or
solicitation to commit any of the above offenses; and (ii) [subject to subsection 3559(c)(3)(A)] any other
offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use,
attempted use, or threatened use of physical force against the person of another or that, by its nature, involves
a substantial risk that physical force against the person of another may be used in the course of committing
the offense.
A “serious drug offence” means: (i) an offense that is punishable under section 401(b)(1)(A) or 408 of the
Controlled Substances Act (21 U.S.C. 841 (b)(1)(A), 848) or section 1010(b)(1)(A) of the Controlled
Substances Import and Export Act (21 U.S.C. 960 (b)(1)(A)); or (ii) an offense under State law that, had the
offense been prosecuted in a court of the United States, would have been punishable under section
401(b)(1)(A) or 408 of the Controlled Substances Act (21 U.S.C. 841 (b)(1)(A), 848) or section 1010(b)(1)(A)
of the Controlled Substances Import and Export Act (21 U.S.C. 960 (b)(1)(A)).
The term “Federal sex offence” means an offense under section 1591 (relating to sex trafficking of children);
section 2241 (relating to aggravated sexual abuse); section 2242 (relating to sexual abuse); section
2244(a)(1) (relating to abusive sexual contact); section 2245 (relating to sexual abuse resulting in death);
section 2251 (relating to sexual exploitation of children); section 2251A (relating to selling or buying of
children); section 2422(b) (relating to coercion and enticement of a minor into prostitution) [subject to section
3559(e)(3)]; or section 2423(a) (relating to transportation of minors) [subject to section 3559(e)(3)].
A conviction for any of the offences listed above in paragraphs 5.62 to 5.64 will be recognised as a ‘previous
conviction’ where an offender is being sentenced for an offence listed in paragraphs 5.62 - 5.63. However,
where an offender is being sentenced for using a firearm in the commission of one of the violent offences
listed in the paragraph 5.64, only a prior conviction for using a firearm in the commission of such an offence
will constitute a ‘previous conviction.’
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