Mandatory Minimum Sentences
Sentences should be based on individualized factors relating to each offence, rather than legislated minimum sentences that result in ineffective, expensive, and unduly harsh periods of incarceration.
Rationale
Mandatory minimum and consecutive sentences do not deter crime. Indeed longer prison terms can increase reoffending rates. Offenders rarely factor in sentence length when deciding to commit a crime. Their main concern is whether they will be caught and punished. Accordingly, mechanisms that promote severity of punishment as the ultimate sentencing rationale will fail to yield tangible deterrent effects.
While the CCJA recognizes the public’s desire to punish violent offenders, the judiciary must be allowed to continue utilizing their discretionary power under section 718 to punish and incarcerate offenders who are deemed dangerous, and to apply more lenient sentences where circumstances are appropriate.
In addition, mandatory minimum penalties frequently have a disproportionate impact upon minority groups such as aboriginal offenders. They also remove the possibility of absolute or conditional discharges, probation, and conditional sentences. Mandatory minimum sentences thereby also increase the rate and volume of incarceration. Continuing and expanding use of incarceration will further increase the costs of criminal justice for federal and provincial corrections; with no proof that these sentences will improve public safety.
Background
In 1995, Parliament enacted section 718 of the Criminal Code in response to numerous studies and commissions on sentencing, and as a means of ensuring public safety. In doing so, they also sought to increase the effectiveness of sentencing as a deterrent and a rehabilitative mechanism. Section 718 limited the use of incarceration as a sentencing tool but, still provided the option to judges when the particular offense before them warranted a period of incarceration. Judicial discretion is a hallmark of the Canadian criminal justice system. No person is in a better position to consider the myriad of factors necessary to reach the appropriate sanction then that of the sentencing judge. They hear all the admissible evidence and possess the requisite experience to come to the appropriate conclusion. This is why the Canadian Sentencing Commission recommended the abolition of all mandatory sentences of imprisonment, except for the sentence for murder.
Increasing the number of offenders in prison does not mean that offences stop occurring. The United States has almost two million people in its prisons and one of the highest rates of incarceration in the world. Yet, the U.S. also has one of the highest violent crime rates in the world. Clearly, incapacitation, even at this staggering level, has had no effect on crime reduction. Although Canadian rates of incarceration are generally smaller, they also have had no effect on the crime rate. Indeed, a report of the National Crime Prevention Council of Canada in 1997 noted that Canada has always had a relatively high incarceration rate compared to other Western nations. This is largely true today as well.
One American study on mandatory minimums for gun crimes found that harsh penalties increased defendants’ incentives to go to trial rather than plead guilty. Mandatory sentences lead to more trials, appeals and prison overcrowding. This in turn impacts on the release planning and reintegration efforts of offenders and contributes to recidivism. Overcrowding soaks up vast quantities of resources with negative rather than positive impacts, diverting resources away from treatment and programs for those who might benefit from them.
In 2012 the Safe Streets and Communities Act (Bill C‑10) dramatically expanded on mandatory minimum penalties in the Criminal Code and Controlled Drugs and Substances Act, for a wide array of offences including certain drug, sexual, and gun offences.
As of 2025, there are approximately 100 Criminal Code and Controlled Drugs and Substances Act offences carrying mandatory minimum sentences. These mandatory minimums restrict judicial discretion and commonly disqualify offenders from conditional sentences. The Supreme Court addressed these issues in a trilogy of 2023 cases: R v Hills, R v Hilbach, and R v Bertrand-Marchand. The Court reaffirmed a two-step test under s. 12 of the Charter to assess whether a mandatory minimum constitutes cruel and unusual punishment. The rulings restored some judicial discretion and struck down several mandatory minimums as unconstitutional
CCJA’s position calling for further reduction or elimination remains relevant but, has not been adopted legislatively.