Criminal Code And Charter Sections

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Part I: Relevant Criminal Code and Charter Sections Sentencing provisions in Canadian law are found in s.718.1 and s.718.2 of the Criminal Code, which states that, “sentences must be proportionate to the nature of the offence, reduced or increased depending on the mitigating and aggravating factors, must be similar to sentences imposed on similar offenders for similar offences in similar circumstances, and if the sentence is consecutive, it must not be unduly long or harsh.” Therefore, an offender should not be deprived of their liberty if less restrictive sanctions are available and appropriate. Keeping this is mind, all available sanctions other than imprisonment that are reasonable in the circumstances should be considered with…show more content…
In this case, the Court decided that it is not unconstitutional to impose a disproportionate or “unfit” sentence. Although this law no longer exists, the Court made a decision contrary to established principles of sentencing. In addition, the Court has upheld other mandatory minimum sentences since Smith. Historically, the Criminal Code provided judges with broad discretion in sentencing matters, however, mandatory minimum sentences is very much the exception to the rule. Kent Roach has characterized the post-Smith Supreme Court decisions upholding mandatory minimum sentences as moving from “activism” to “minimalism” in interpreting and applying section 12. He recognizes that judges are more engaged in interpreting cases prior to the establishment of a minimum floor of sentencing with respect to certain offences. In addition, Smith has been called the watermark for section 12-jurisprudence. However, in the twenty-five years following Smith, the Court’s section 12-analysis has been gradually restricted as a tool for challenging mandatory minimums. As Ryan Newel eloquently describes, “the potency of section 12 has been diluted considerably as the Court has limited the use of hypothetical circumstances in which the imposition of a
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