Constitutional Exception to a Mandatory Minimum Sentence is Not Available to Sentencing Court

Constitutional Exception to a Mandatory Minimum Sentence is Not Available to Sentencing Court

 

Today's Supreme Court of Canada decision in R. v. Ferguson, 2008 SCC 6 makes it clear that a constitutional exception to a mandatory minimum sentence is not available to the sentencing Court.  The reasoning of the Court is especially topical in light of Robert Latimer's day release – moreover, the language of the Court makes clear that deference to the legislature is appropriate for mandatory sentencing matters suggesting that most mandatory sentencing reforms will meet approval of the Court.

 

If a mandatory minimum sentence is unconstitutional then the appropriate remedy is to strike down the provision; reading discretion into the sentencing process is an unwarranted intrusion into the legislative sphere.

 

The facts in Ferguson are straightforward.  During an altercation with a detainee held in a cell at an RCMP detachment, the accused, an RCMP officer, shot and killed the detainee.  The accused was charged with second degree murder but was convicted by a jury of the lesser offence of manslaughter.  Notwithstanding the mandatory minimum sentence of four years imposed by s. 236(a) of the Criminal Code for manslaughter with a firearm, the trial judge imposed a conditional sentence of two years less a day.  He granted the accused a constitutional exemption from the four year sentence because, in the circumstances of this case, he found that the minimum mandatory sentence constituted cruel and unusual punishment in violation of s. 12 of the Canadian Charter of Rights and Freedoms.  The majority of the Court of Appeal overturned that sentence and held that the mandatory minimum must be imposed.  The Supreme Court of Canada agreed.

 

The Court found no basis for concluding that the four year minimum sentence prescribed by Parliament amounts to cruel and unusual punishment.  In the absence of any Constitutional violation, the trial judge's proper course in the circumstances was to apply the four year minimum sentence. 

 

In rejecting the concept of a constitutional exception to the mandatory minimum imposed by Parliament the Court said:

 

 

[54]                        The intention of Parliament in passing mandatory minimum sentence laws, on the other hand, is to remove judicial discretion to impose a sentence below the stipulated minimum. Parliament must be taken to have specifically chosen to exclude judicial discretion in imposing mandatory minimum sentences, just as it was taken to have done in enacting the rape shield provisions struck down in Seaboyer.  Parliament made no provision for the exercise of judicial discretion in drafting s. 236(a), nor did it authorize any exceptions to the mandatory minimum.  There is no provision permitting judges to depart from the mandatory minimum, even in exceptional cases where it would result in grossly disproportionate punishment. Parliament has cast the prescription for  the minimum four-year prison sentence here at issue in clear unambiguous terms. Parliament must be taken to have intended what it stated: that all convictions for manslaughter with a firearm would be subject to a mandatory minimum sentence of four years imprisonment.   The law mandates a floor below which judges cannot go.  To permit judges to go below this floor on a case-by- case basis runs counter to the clear wording of the section and the intent that it evinces.

 

[55]                        In granting a constitutional exemption, a judge would be undermining Parliament's purpose in passing the legislation: to remove judicial discretion and to send a clear and unequivocal message to potential offenders that if they commit a certain offence, or commit it in a certain way, they will receive a sentence equal to or exceeding the mandatory minimum specified by Parliament.  The discretion that a constitutional exemption would confer on judges would violate the letter of the law and undermine the message that animates it.

 

[56]                        It is thus clear that granting a constitutional exemption from a mandatory minimum sentence law that results in an unconstitutional sentence goes directly against Parliament's intention. To allow constitutional exemptions for mandatory minimum sentences is, in effect, to read in a discretion to a provision where Parliament clearly intended to exclude discretion. If it would be inappropriate to read in such a discretion under s. 52, then necessarily it would be inappropriate to allow judges to grant constitutional exemptions having the same effect under s. 24(1). It cannot be assumed that Parliament would have enacted the mandatory minimum sentencing scheme with the discretion that allowing constitutional exemptions would create. For the Court to introduce such a discretion would thus represent an inappropriate intrusion into the legislative sphere.