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2.21.2010

Prelude to the End of Mandatory Minimums in Canada?

On Friday, the Supreme Court of Canada may have signaled the imminent demise of mandatory minimum sentences. In Nasogaluak, a unanimous Court expressed deep reservations about the current sentencing regime in Canada.

Earlier, the Court of Appeal had declared that sentencing judges were bound by the statutorily prescribed mandatory minimum sentences, and therefore could not exercise any discretion to depart from them.

The Supreme Court did not accept such uncompromising restrictions on the judicial function.

Quite the contrary, wrote the Court, a judge may defensibly exercise her discretion to depart from the statutory mandatory minimum sentences in cases where there is evidence of "some particularly egregious form of misconduct by state agents in relation to the offence and to the offender" (para. 64).

The Court's spirited defense of judicial discretion also doubled as an unmistakable rejection of the position advanced by the state, which argued that allowing a judge to exercise her discretion to reduce a sentence below the mandatory minimum "would undermine the principles of proportionality and parity" (para. 28). Not so, retorted the unanimous Court.

This is a significant development in the continuing evolution of Canadian criminal law. Yet we cannot be certain whether it signals the end of mandatory minimums.

On the one hand, the Supreme Court of Canada has, in this latest case, taken it upon itself to defend the discretionary prerogative of judges. The Court's statements echo the very same themes that the Supreme Court of the United States articulated in Booker in 2005, which sounded the death knell for mandatory minimum sentences in the United States.

But, on the other, the Court ultimately ruled for the state, finding that this particular case did not present an instance where the judge would have been justified in departing from the statutorily mandated minimum sentence.

One thing, though, is certain: this is an area of Canadian law worth following closely.

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