What are mandatory minimum jail sentences?
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What are mandatory minimum jail sentences?
A mandatory minimum prison sentence is the shortest prison (jail) sentence that a sentencing judge may order for a given crime. For example, the mandatory minimum sentence for murder is life imprisonment, so the sentence for murder must always be life imprisonment.
The federal government enacts mandatory minimum sentences under the Criminal Code. However, some mandatory minimum sentences listed in the Criminal Code no longer apply in some or all provinces because the superior courts of those provinces have “struck them down” for being unconstitutional. Even if a mandatory minimum sentence has not been struck down, it will not apply in a given case if the defence can persuade the judge that applying in that case would be unconstitutional, and so a lower sentence is required. This requires a complex application be made to the presiding judge.
Do all crimes have mandatory minimum prison sentences?
Not all crimes have mandatory minimum prison sentences. Some crimes have mandatory minimum penalties that are not prison sentences, and most crimes have no mandatory minimum penalty at all.
Criminal impaired driving, for example, has a mandatory minimum penalty of a fine and a 12-month driving prohibition. That means that if you are convicted of criminal impaired driving (for the first time), in addition to being fined, your license will be suspended for at least 12 months after you are sentenced (even if you already served an administrative license suspension before being sentenced).
For sentences without mandatory minimum prison sentences, a judge may order a sentence involving no imprisonment at all. There are several kinds of criminal sentences other than imprisonment, including conditional sentence (which are also known as CSOs, or “house arrest”), suspended sentences with probation, discharges, and fines. Fines are straightforward, and I have separate FAQ on each of these other types of sentences. I also have a separate FAQ on the different types of prison sentences.
What are mandatory maximum sentences?
Most crimes have mandatory maximum sentences, which prohibit judges from ordering a higher sentence. For example, the maximum sentence for sexual assault (by indictment) is 10 years imprisonment (14 years imprisonment if the victim is under the age of 16 years).
Even crimes that allow for life sentences have a mandatory maximum on parole ineligibility. For example, those serving a first-degree murder sentence are ineligible to apply for parole for the first 25 years of their life sentence, and those serving second-degree murder sentences are ineligible to apply for parole for the first 10-25 years of their life sentence. Being eligible to apply for parole does not guarantee that parole will be granted – the Parole Board of Canada decides whether to grant parole. I discuss parole in more depth in my FAQs about the different types of prison sentences and the differences between parole and probation.