Mandatory Minimum Penalty (MMP)
A mandatory minimum penalty (MMP) is a sentence specified by statute that the sentencing judge cannot go below, regardless of the circumstances of the offence or the offender. Canadian criminal law has many MMPs — for impaired driving, firearm offences, child sexual offences, and others — but the constitutional law on MMPs has been deeply unsettled. The Supreme Court has struck down many MMPs under section 12 of the Charter (cruel and unusual punishment), and Bill C-5 (2022) eliminated several others.
Mass Tsang's criminal lawyers raise section 12 challenges where appropriate and structure overall strategy around avoiding MMPs where possible. For more, see our blog post on the Supreme Court of Canada and mandatory minimums.
Section 12 — cruel and unusual punishment
Section 12 of the Charter prohibits cruel and unusual punishment. The leading case on MMPs and section 12 is R v Nur, 2015. The Court held that an MMP violates section 12 where, applied to either the actual offender or a reasonable hypothetical offender, it would result in a sentence that is grossly disproportionate to the appropriate sentence for that case. The "reasonable hypothetical" allows MMPs to be challenged based on how they would apply across the range of conduct captured by the offence.
MMPs that remain in force
Surviving MMPs include: impaired driving offences (first offence $1,000 fine; second offence 30 days; third or subsequent 120 days); refusal to provide a breath sample on demand (same as impaired driving); first-degree and second-degree murder (life with 25 or 10–25 years parole ineligibility); and various firearm offences (subject to ongoing constitutional challenge). Most child sexual offences carry mandatory minimums, though some have been struck down in particular configurations.
MMPs eliminated by Bill C-5
Bill C-5 (in force November 2022) eliminated mandatory minimum penalties for several drug offences (most importantly, simple possession is no longer subject to MMPs and increasingly diverted entirely), most tobacco offences, and several firearm offences. The reform reflected the recognition that MMPs disproportionately affect Indigenous, Black, and other marginalized communities and rarely produce sentencing outcomes that are well-tailored to the case at hand.
Strategic implications
Where an MMP applies, the defence has limited room to manoeuvre on sentence — the focus shifts to avoiding the conviction entirely (through resolution, withdrawal, or acquittal), challenging the MMP under section 12, or, where appropriate, securing a Crown election that removes the MMP from the picture. Crown discretion on election can sometimes avoid an MMP that would otherwise apply.
Charter challenges
Section 12 challenges to MMPs are now a standard feature of defence work. The defence presents evidence of the actual sentence appropriate to the case, then argues that the MMP is grossly disproportionate — either as applied or in a reasonable hypothetical. Successful challenges allow the court to impose a lower sentence.
Related glossary terms
