A number of decisions have been released in the last 18 months where courts have declared certain mandatory minimum sentences in the Criminal Code and Controlled Drugs and Substances Act to be unconstitutional. These mandatory minimum sentences mean that judges are not allowed to impose sentences that are lower than a certain minimum established by Parliament, regardless of the circumstances of the offence or the offender.

The Supreme Court in R v Nur, 2015 SCC 15, in a split decision, declared the mandatory minimum sentence for firearms offences unconstitutional. Similarly, just one year later, the Supreme Court in R v Lloyd, 2016 SCC 13, held that a mandatory minimum sentence for drug-trafficking violates the Charter of rights and is therefore unconstitutional.

Just recently, a decision was released by Madam Justice Moen of the Alberta Court of Queen’s Bench declaring the mandatory sex offender information registration for certain sex offenders for life to be unconstitutional in R v Ndhlovu, 2016 ABQB 595. On June 26, 2015, Mr. Ndhlovu plead guilty to two counts of sexual assault, and was sentenced to 6 months in jail followed by 3 years of probation. The Criminal Code, requires that a judge order an offender in Mr. Ndhlovu’s circumstances to be registered in the Sex Offender Registry for the rest of his life and to comply with the requirements of the Sex Offender Information Registration Act (SOIRA).

Madam Justice Moen found that “the provisions of the Criminal Code respecting SOIRA are overbroad and grossly disproportionate, and therefore unconstitutional to the extent that they remove judicial discretion to refuse to place offenders on the Registry who present no risk of re-offending.”

The Crown has until November 1, 2016, to file materials if they intend to argue that the law should be upheld.

Alexandra Seaman