On June 3rd 2016, MSc students and DPhil candidates in the Centre for Criminology had the pleasure to welcome Sara Henningsson, Provincial Crown attorney currently working in the Serious Crimes and Special Affairs Office in Montreal, Canada. Henningsson teaches at the Faculty of Law at McGill University. She came to University of Oxford to give a lecture, hosted by Prof Julian Roberts, on “Mandatory Minimum Sentencing in Canada: Important developments arising from the Supreme Court of Canada”.

Henningsson's lecture focused on the evolution of the constitutional debate involving mandatory minimum sentences in Canada, especially the interpretation given by the Supreme Court to section 12 of the Canadian Charter of Rights and Freedoms, which guarantees that no person shall be subjected to any cruel or unusual treatment or punishment. After decades of failed constitutional charges, the Supreme Court finally struck down mandatory minimum sentences, in two cases recently decided, Nur and Lloyd. The talk discussed these decisions and what the future of sentencing in Canada might look like in the aftermath of those precedents.

Under section 718.1 of the Canadian Criminal Code, a sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. Imposing a proportionate sentence is a highly individualised exercise. Mandatory minimum sentences, as Henningsson stated, are 'very difficult to swallow for judges', because they limit the courts' power to assess the facts of the case and to find a fit sentence for the offender appearing for sentencing.

At present, there are four main categories of offences which carry mandatory minimums: first-degree murder; firearm offences; sexual offences, especially when the victim is a child, for example, child pornography; and repeat offences. Minimum sentences can also be found in hybrid offences, which gives the Crown the power to elect if it will proceed by indictment – where there will be minimums attached – or summary – where there will be a lesser sentence. Many mandatory sentences were introduced in 1995, with the enactment of firearms legislation. However, the use of mandatory minimums has exploded in the last twenty years, and is increasingly the subject of much debate and controversy.

Arguments often advanced in favour of mandatory minimum sentences relate to deterrence and crime prevention through the incapacitation of offenders; educational purposes by means of a clear communication of society's disapproval; reduction of sentence disparity by guidance provided to the judiciary; and response to public concern that offenders should be held accountable for their crimes through the criminal justice system. Opponents usually argue that mandatory minimums have no deterrent effect, because what deters people is the fear of being caught, not the length of sentences; they lead to sentences out of proportion to the degree of responsibility of the individual; also, they shift the decision making from the judiciary to the prosecutors, who could, so the argument goes, force a plea negotiation to avoid a minimum sentence.

The most important argument against mandatory sentences, however, is that, by their very nature, they have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, deterrence and retribution – sentencing purposes under the Criminal Code – at the expense of what is fit. In the lower courts in Canada, according to Henningsson, judges feel they are forced to give a sentence they do not agree with, jettisoning judicial discretion.

None of these arguments, regardless their strength, is enough to render mandatory punishments unconstitutional. How then did the Supreme Court go about to declare mandatory minimum laws unconstitutional in 2015 and 2016?

The prohibition of cruel and unusual punishment was first introduced in 1960 by the Canadian Bill of Rights, whose section 2(b) stated that “no law of Canada shall be construed or applied so as to impose or authorize the imposition of cruel and unusual treatment or punishment”. The Canadian Charter of Rights and Freedoms, enacted in 1982, limits judicial sentencing powers. Section 12 of the Charter is particularly relevant, and it reads like this: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”. Nevertheless, for a long time Canadian courts were reluctant to examine the merits of any argument related to the definition of what constitutes cruel and unusual punishment.

In R. v. Smith [1987] 1 S.C.R. 1045 (weblink: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/227/index.do), the defendant was arrested in possession of cocaine. He was charged and sentenced for an offence which carried a seven-year minimum sentence under the Narcotics Control Act. The Supreme Court, deciding the case, set a very high analytical threshold, by saying that a sentence would not be recognized as amounting to cruel and unusual punishment unless it was grossly disproportionate. Gross disproportionality was defined by the court as follows: whether the punishment prescribed is so excessive as to outrage the standards of decency – the outraging 'standards of decency' test. In methodological terms, first the court would have to look if the seven-year sentence was grossly disproportionate for this particular offender. Second, the court had to engage in a reasonable hypothetical scenario, and this is where things become more complex. The mandatory minimum provision cast too wide a net and, as such, it was struck down.

The decades after Smith, however, were marked by aggressive mandatory minimum legislation  enacted by the Parliament, but very few decisions by the Supreme Court shed light on Section 12 of the Canadian Charter. For example, in R. v. Morrisey [2000] 2 SCR 90 (weblink: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1802/index.do), the Court attempted to explain the reasonable hypothetical, describing it as a scenario made by imaginable circumstances which could commonly arise with a degree of generality appropriate to the particular offence. The Court admitted recourse to real life cases in constructing the hypotheticals and testing the severity of the punishment.

Fifteen years later, in R. v. Nur [2015] 1 S.C.R. 773 (weblink: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15272/index.do), the Supreme Court decided a case involving two accused, Hussein Jama Nur and Sidney Charles. In the case of Nur, in January 2009, the police was called to a community centre in Toronto after receiving a report about someone described as threatening in the neighbourhood. 19-year-old Nur, a high school student from a supporting family of refugees in Canada, with no criminal record, ran away as soon as the police arrived. Before being caught, Nur dropped a semi-automatic gun, with twenty-three bullets in the clip, and one in the chamber. He was charged with one account of possession of loaded prohibited firearm, under section 95(1) of the Criminal Code, and sentenced to fourty months imprisonment. The defence challenged the constitutionality of the three-year minimum sentence imposed by s. 95, as amended in 2008. In the case of Charles, in May 2008 the Toronto police were called because of a reported incident in the defendant's apartment. Police officers searched the house, and found a semi-automatic handgun with ammunition. Charles was arrested and also charged under section 95(1) of the Criminal Code. Back then, he had a long criminal record, having being previously convicted twenty times, ten of each for gun possession and violence-related offences. Since this was a subsequent offence, it carried a five-year minimum sentence. Charles was sentenced to seven years.

The Supreme Court struck down the mandatory sentence for both accused, on the grounds that it violated section 12 of the Charter. Section 95 of the Criminal Code encompassed a wide range of conduct, which stretched from serious firearm infractions to licensing transgressions. The Court found that the mandatory minimums would inevitably lead to gross disproportionate sentences for those at the lower end of the spectrum captured by s. 95, for example the licensed and responsible guard owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate, and totally out of sync with the norms of criminal sentencing set out in the s. 718 of the Criminal Code and legitimate expectations in a free and democratic society.

In Nur, the prosecutors argued that the Crown’s election to proceed summarily and thereby avoid a mandatory minimum would prevent s. 95 from being unconstitutional when the conduct is at the less serious end of the spectrum. The Supreme Court, however, rejected the Crown's submission, stating that prosecutors should not have that much power in their hands, because of a potential for power imbalance in plea negotiations, resulting in wrongful convictions. Henningsson, herself an experienced prosecutor, strongly objected to this reasoning in her lecture, claiming that the premise should be good faith by prosecutors in the exercise of their discretion.

In R. v. Lloyd [2016] S.C.C. 13 (weblink: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15859/index.do), the offender was a drug addict and a dealer as well. He was convicted for possession for the purpose of trafficking, and sentenced to prison time. A month after his release, he was arrested again, for a similar offence. For being a recidivist in possessing drugs for trafficking, Lloyd was subjected to a mandatory minimum imposed by section 5 of the Controlled Drugs and Substance Act. Again in this case, the Court decided that the statutory provision casts too wide a net, applying indiscriminately to professional drug dealers, who sells drugs for profit, and to drug addicts, who possess small quantities of drugs that they intend to share with friends, spouse or other addicts. The Court struck down a minimum sentence of twelve months.

In her final remarks, Henningsson emphasised that, in light of Nur, mandatory minimum sentences are vulnerable to constitutional challenge, since, by their very nature, they apply for a wide range of conducts and offenders, sometimes undesirably. Canada is, in her words, in 'a confusing and rapidly evolving state of affairs when it comes to mandatory minimum sentences'. Challenges to mandatory minimum sentences using s. 12 are on the rise and, for a variety of factors, are likely to continue indefinitely. Some argue for the partial repeal or abolition of mandatory minimums, while others posit that this status quo is satisfactory. For Henningsson, so long as they remain within the boundaries of the Canadian Charter, mandatory minimums do not intrude in the judges' ability to find proportionate sentences. Rather, they only establish a certain range in which that discretion is to be exercised. A middle-ground solution between those two opposing sides should be pursued, in order to maintain mandatory minimum sentences that will pass the constitutional test. This could promote certainty, predictability at sentencing, as well as accountability for serious offences and satisfaction for victims.

Henningsson's remarkable presentation was followed by questions from an enthusiastic audience, which engaged with the speaker and Prof Julian Roberts in a live discussion about sentencing policies, firearms legislation and proportionality at sentencing.