Mandatory minimum sentences as an inflationary floor

R v Guha 2012 BCCA 423 deals with the difficult question of how mandatory minimum sentences fit with sentences ranges. The Court does not decide but seems inclined to the view that the mandatory minimum shifts the appropriate sentencing range upwards:

[32] The impact of mandatory minimums on sentencing has received little attention in the case law. However, in R. v. Morrisey, 2000 SCC 39 (CanLII), 2000 SCC 39, which involved a challenge to the 4-year mandatory minimum for the offence of criminal negligence causing death with a firearm, Madam Justice Arbour, albeit for the concurring minority, described a mandatory minimum sentence as a type of "inflationary floor" that still required the application of the overriding principle of proportionality:

[75] To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, in particular, inss. 718 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec718_smooth> , 718.1 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec718.1_smooth> , and 718.2 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec718.2_smooth> of the Criminal Code <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html> : Wust (S.C.C.), supra, at para. 22. By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec718.2_smooth> (b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called "best" offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [Emphasis added.]

[33] This characterization of mandatory minimum sentences as a type of "inflationary floor" was not adopted by the majority, although it appears to have been referred to, if not followed, in some of the subsequent jurisprudence. The concept, however, does not in my view reflect any change in the approach to sentencing for offences with mandatory minimums, but simply narrows the range of available sentences while continuing to engage the general principles of sentence and the principle of proportionality. Further, it must be noted that Justice Arbour's comments on the inflationary effect of a mandatory minimum were made in the context of the circumstances of Morrisey, where Parliament had recently imposed a mandatory minimum sentence on an offence that previously had no mandatory minimum. In this case, the recent changes to s. 95 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec95_smooth> (the 2008 amendments) reflect an increase to the mandatory minimums that had already been in place since the 1998 amendments. Parliament has simply increased the starting point for s. 95 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec95_smooth> sentences; thereafter, the principles of sentence as codified in ss. 718 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec718_smooth> , 718.1 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec718.1_smooth> and 718.2 <http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec718.2_smooth> , including the overriding principle of proportionality, continue to apply.