Mandatory minimum sentences of imprisonment as ‘cruel and unusual punishment’: Exploring constitutional infirmity post-Nur (2015)

This research examines judicial intervention striking down mandatory minimum sentencing laws in Canada. Between 2006 and 2015, former Prime Minister Stephen Harper’s Conservative government introduced (and increased) an unprecedented number of mandatory minimums in the Criminal Code and Controlled Drugs and Substances Act. Approximately 100 offences now carry a minimum period of imprisonment. In 2015 and 2016, the Supreme Court of Canada struck down provisions imposing minimum periods of imprisonment in R v Nur and R v Lloyd, for violating the prohibition against cruel and unusual punishment enshrined in s. 12 of the Canadian Charter of Rights and Freedoms. Lower courts across Canada have continued striking down other mandatory minimum provisions (primarily those pertaining to drug, sex, and weapons offences). 134 cases challenging the constitutional validity of mandatory minimums are reviewed. This research concludes the current Liberal government has not fulfilled its commitment to review the previously imposed mandatory minimum penalties, despite more effective and less costly sentencing approaches