Mandatory minimum sentences are unjust because they take away judicial discretion forcing judges to impose a sentence regardless of the offender’s circumstances, their level of blameworthiness, and their prospect for rehabilitation. One way to prevent this injustice is to introduce an exceptions clause into a minimum sentencing provision. This would allow the courts to consider mitigating factors relating to the commission of the offence or the circumstance of the offender. The concept of an exceptions clause is nothing new, and these clauses are common in other common law jurisdictions. A 2005 report from the Department of Justice entitled “Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models” found that many common law countries allow their courts the discretion to impose a sentence below the mandatory minimum where exceptional circumstances exist.
For example, in England and Wales a court has the discretion not to impose a mandatory 3 year sentence for a 3rd domestic burglary conviction where the court finds that the particular circumstances of the offence or the offender would make it unjust to do so. Additionally, in South Africa, a court can impose a lesser sentence if there are “substantial and compelling circumstances”, and South African courts have found that an unjust sentence is a substantial and compelling circumstance. Finally, Australia’s Northern Territory has mandatory sentences for a range of property offences. For a first property offence, the offender would be sentenced to a minimum of 14 days imprisonment. However, the court is not required to impose this minimum if exceptional circumstances exist.
Overall, these governments see the necessity of providing judges with the discretion to not apply a mandatory minimum where exceptional circumstance would make it unjust. Currently, no such freedom is accorded to Canadian judges, but my recently introduced bill, S-214 seeks to change that.