Best Offender and Mandatory Minimum Sentences

R v Lyta, 2013 NUCA 10 deals with the issue of whether only the "best offender" can receive a statutory minimum sentence.  The Court, broadly put, does not adopt that approach and rather suggests that "the existence of a statutory minimum is a factor that must be put into the mix when applying the general sentencing provisions of the Criminal Code to a particular offender". 

 

In light of the Court of Appeal for Ontario's decision in R. v. Nur, 2013 ONCA 67 holding many mandatory minimum sentences unconstitutional it seems likely the Supreme Court of Canada will review the issue again soon.  Lyta holds:

 

 

[15]  On the second point, the Crown urges us to adopt statements found in the minority reasons of Arbour J in R v Morrisey, 2000 SCC 39, [2000] 2 SCR 90, (a case about whether a statutory minimum sentence constituted cruel and unusual punishment) to conclude that only the so-called "best" offender should receive the statutory minimum sentence. The Crown argues that the respondent cannot be considered a "best offender", because of the circumstances of the offence (not because of his personal characteristics).

 

[16]  Although we find it unnecessary to rule on this "best" offender submission, we reject the sentencing judge's approach to statutory minimums in one respect. His reasons state that a sentence higher than the statutory minimum should be imposed only if a consideration of the sentencing principles suggests a higher sentence would be necessary. We take this to mean that an appropriate sentence can be derived from general sentencing principles, without considering that Parliament has mandated a minimum sentence. With respect, this approach seems to undervalue the existence of the statutory minimum and might be taken to mean that a higher than minimum sentence would be imposed only on an unusually bad offender committing an unusually bad offence. We do not consider that to have been Parliament's intention.

 

[17]  Rather, the existence of a statutory minimum is a factor that must be put into the mix when applying the general sentencing provisions of the Criminal Code to a particular offender. It clearly narrows the available range of sentences and, over time, will no doubt lead to inflating sentences for such offences: R v Guha,  2012 BCCA 423 at para 33, 328 BCAC 303. To say that, however, is not necessarily to accept the "best offender" approach urged by the Crown. Among other problems with the Crown's approach is the fact that in Morrisey "Arbour J. did not define what she meant by `best offender': R v McAnuff,  2011 ONSC 4051 at para 22 (available on Can111). "What she did make clear is that the minimum sentence should not serve as the standard sentence only to be exceeded in the very worst circumstances": ibid.