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EVERYDAY LAW: Setting mandatory minimum sentences

Cecil McCarthy

EVERYDAY LAW: Setting mandatory  minimum sentences

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Another Canadian case that dealt with mandatory minimum sentences is that of the Supreme Court case in R v WUST (2000).
In that matter, the court was concerned with the issue of whether the sentencing judge was entitled to reduce the mandatory minimum sentence by taking into account pre-sentencing custody. 
The Criminal Code had provided that the minimum sentence was four years where a firearm was used in a robbery. The accused had pleaded guilty to charges of robbery with a firearm and possession of a restricted weapon.
He was sentenced to four and half years imprisonment and was credited with one year for his pre-sentencing custody. The resulting sentence was therefore three and a half years.
The Crown appealed the sentence on the basis that it should have been seven or eight years and also applied to have the credit for pre-sentencing custody set aside. The Court of Appeal varied the sentence and reduced it to four years while refusing to grant any credit for the time served prior to sentencing.
The Supreme Court allowed the appeal.
The relevant Criminal Code contains the following provisions relevant to robbery and sentencing:
“344. Every person who commits robbery is guilty of an indictable offence and liable.
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration of the following principles:
.  .  . (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; .  .  .
718.3 (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.
(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.
719. (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides . . . .
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.
(4) Notwithstanding subsection (1), a term of imprisonment, whether imposed by a trial court of the court appealed to, commences or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the sentence.”
In determining that pre-sentencing custody was to be taken into account in respect of a mandatory minimum sentence, the court said:
42. “If this court were to conclude that the discretion provided by Section 719(3) to consider pre-sentencing custody was not applicable to the mandatory minimum sentence of Section 344(a), it is certain that unjust sentences would result. First, courts would be placed in the difficult situation of delivering unequal treatment to similarly situated offenders: for examples, see McDonald, supra, at pp. 80-81.  Secondly, because of the gravity of the offence and the concern for public safety, many persons charged under Section 344(a), even first-time offenders, would often be remanded in custody while awaiting trial. Consequently, discrepancies in sentencing between least and worst offenders would increase, since the worst offender, whose sentence exceeded the minimum, would benefit from pre-sentencing credit, while the first-time offender whose sentence would be set to minimum, would not receive credit for his or her pre-sentencing detention.
An interpretation of Sections 719(3) and 344(a) that would reward the worst offender and penalise the least offender is surely to be avoided.
43. These examples of the absurd results we could expect from an exclusion of the application of Section 719(3) to mandatory minimum sentences, such as that provided by Section 344(a), are further indication that parliament intended these two sections to be interpreted harmoniously and consistently within the overall context of the criminal justice system’s sentencing regime.” 
 Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]