Mandatory Minimum Sentences in Ontario: What You Need to Know

A mandatory minimum sentence is exactly what it sounds like: a sentence that a judge must impose upon conviction, regardless of the circumstances. The judge has no discretion to go below it. No matter how sympathetic the offender, how minor the role, or how compelling the mitigating factors — if the law prescribes a mandatory minimum and you are convicted of that offence, the judge’s hands are tied.

This is one of the most misunderstood areas of Canadian criminal law. Many people assume that judges always have broad discretion at sentencing. In most cases, they do. But for a significant number of offences under the Criminal Code of Canada, Parliament has removed that discretion entirely by legislating a floor below which no sentence can fall.

If you are facing a charge that carries a mandatory minimum, you need to understand what that means for your case — and what your lawyer can do about it.

How Mandatory Minimums Work

In the normal sentencing framework, a judge weighs a long list of factors: the seriousness of the offence, the offender’s moral blameworthiness, their criminal record (or lack thereof — see our article on first-time offenders), the impact on the victim, the offender’s personal circumstances, and the principles of restraint, proportionality, and rehabilitation. The judge then arrives at a sentence that fits.

Mandatory minimums override a significant part of that analysis. The judge still considers all of the relevant factors — but the sentence cannot go below the legislated floor. If the mandatory minimum is one year in jail, the judge cannot impose six months, cannot impose a conditional sentence, and cannot impose probation alone. One year is the starting point, not the ceiling.

This distinction matters enormously. The mandatory minimum is not the sentence you will necessarily receive — it is the lowest possible sentence the court can impose. The actual sentence can be, and often is, higher.

Which Offences Carry Mandatory Minimums?

Impaired Driving, Over 80, and Refusal

These are by far the most common mandatory minimums that ordinary people encounter. If you are convicted of impaired driving, driving with a blood alcohol concentration at or over 80 mg per 100 mL of blood, or refusing to provide a breath sample, the Criminal Code prescribes the following minimums:

• First offence: a minimum fine of $1,000. There is no minimum jail sentence, but the fine is mandatory — the judge cannot impose a lesser fine or substitute community service.
• Second offence: a minimum of 30 days imprisonment. This is actual jail time. A conditional sentence (house arrest) is not available.
• Third or subsequent offence: a minimum of 120 days imprisonment.

These minimums apply regardless of the circumstances of the offence. A first-time offender who blew just over the legal limit at a routine roadside stop faces the same $1,000 minimum fine as someone who caused a collision. The distinction between those scenarios plays out in sentencing above the minimum, but the floor does not move.

It is also critical to understand that these Criminal Code minimums exist alongside — and separately from — MTO administrative consequences such as licence suspensions, ignition interlock requirements, and remedial programs. You may also want to read about the early interlock stream, which provides a way to get back on the road sooner after an impaired driving conviction.

Firearms Offences

Firearms offences carry some of the most severe mandatory minimums in the Criminal Code. The minimums vary significantly depending on the specific offence, the type of firearm, and whether there is a connection to a criminal organization:

• Possession of a loaded prohibited or restricted firearm: 3-year minimum (5 years for a second or subsequent offence)
• Possession of a firearm knowing its possession is unauthorized: 1-year minimum where the Crown proceeds by indictment
• Using a firearm in the commission of an indictable offence: 1-year minimum (for a first offence), increasing for subsequent offences
• Firearms trafficking and smuggling: minimums ranging from 3 to 5 years depending on the circumstances
• Offences connected to a criminal organization: can trigger 5-year or 7-year minimums

The stakes in firearms cases are extraordinarily high. The difference between a conviction on a charge carrying a 1-year minimum and a charge carrying a 5-year minimum can turn on facts like the type of firearm, whether it was loaded, and whether the Crown can establish a link to organized crime. Understanding the election process — whether the Crown proceeds summarily or by indictment — is also critical, because the election determines which mandatory minimum applies.

Sexual Offences Involving Minors

Sexual offences involving children carry mandatory minimums that reflect Parliament’s view of the seriousness of these crimes. The minimums vary by offence:

• Sexual interference (s. 151): 1-year minimum on indictment; 90-day minimum on summary conviction
• Invitation to sexual touching (s. 152): 1-year minimum on indictment; 90-day minimum on summary conviction
• Sexual exploitation (s. 153): 1-year minimum on indictment; 90-day minimum on summary conviction
• Making or distributing child pornography: 1-year minimum on indictment; 6-month minimum on summary conviction
• Possession of child pornography: 6-month minimum on indictment; 90-day minimum on summary conviction

These cases are prosecuted aggressively, and the mandatory minimums ensure that a conviction results in a meaningful custodial sentence. If you are facing a sexual offence charge, early and thorough legal representation is essential.

Murder

Murder stands apart from every other offence in Canadian law. Both first-degree and second-degree murder carry a mandatory sentence of life imprisonment. There is no discretion on this point.

The difference between first and second degree lies in parole eligibility:

• First-degree murder: life imprisonment with no eligibility for parole for 25 years
• Second-degree murder: life imprisonment with no eligibility for parole for a minimum of 10 years (the judge can set the parole ineligibility period at anywhere between 10 and 25 years)

These are absolute. There is no constitutional challenge, no plea negotiation, and no judicial discretion that can avoid a life sentence upon conviction for murder. The only question is when the offender becomes eligible to apply for parole — and eligibility does not guarantee release.

Constitutional Challenges Under the Charter

Mandatory minimums exist in tension with Section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual treatment or punishment. The Supreme Court of Canada has found that a mandatory minimum sentence violates Section 12 if it would be grossly disproportionate — either for the offender before the court or for a reasonably foreseeable offender who could be caught by the same provision.

This “reasonable hypothetical” test is crucial. It means your lawyer does not have to prove that the mandatory minimum is grossly disproportionate for you specifically. If the lawyer can construct a realistic scenario in which a person convicted of the same offence would face a sentence that is grossly out of proportion to what is just and appropriate, the mandatory minimum can be struck down as unconstitutional.

For a deeper understanding of how Charter rights function in criminal defence, read our detailed guide on your Charter rights in a criminal case.

Key Supreme Court Decisions

Several landmark cases have shaped this area of law:

R v Nur (2015): The Supreme Court struck down the 3-year mandatory minimum for possession of a loaded prohibited firearm (s. 95(2)(a) of the Criminal Code). The Court found that while the minimum was not grossly disproportionate for Mr. Nur himself, it would be for a reasonably hypothetical offender — such as a person with a valid licence whose firearm was briefly loaded by someone else. This decision reshaped the landscape for firearms sentencing.

R v Lloyd (2016): The Court struck down the 1-year mandatory minimum for drug trafficking (s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act). The provision applied to trafficking in Schedule I substances where the offender had a prior drug conviction. The Court found it would catch a low-level offender sharing a small amount of drugs with a friend — a scenario where a 1-year jail sentence would be grossly disproportionate.

R v Hills (2023): The Supreme Court struck down the 4-year mandatory minimum for discharging a firearm with recklessness (s. 244.2(3)(b)). The majority found the provision would catch reasonably foreseeable offenders for whom a 4-year sentence would be grossly disproportionate, such as a person who discharged a firearm recklessly in a rural area with no one nearby.

These decisions do not eliminate mandatory minimums from Canadian law. They eliminate specific mandatory minimums that the Court found to be unconstitutional. Other mandatory minimums remain in force unless and until they are similarly challenged and struck down.

What Your Lawyer Can Do

The existence of a mandatory minimum does not mean your case is hopeless. Far from it. A mandatory minimum only applies upon conviction for that specific offence. Your lawyer’s job is to ensure that either you are not convicted, or that the conviction is for an offence that does not carry a minimum — or that the minimum itself is unconstitutional.

Plea Negotiations

Mandatory minimums fundamentally change the dynamics of plea negotiations. The Crown knows that if you are convicted at trial, the judge must impose at least the minimum. This gives the Crown leverage. But it also creates an incentive for the Crown to resolve the case efficiently — and your lawyer can use that.

A skilled defence lawyer can negotiate a plea to a lesser included offence or a different charge that does not carry a mandatory minimum. For example, in a firearms case, the difference between a conviction for possession of a loaded prohibited firearm (3-year minimum) and a conviction for unauthorized possession of a firearm (1-year minimum, or no minimum on summary conviction) is enormous. Your lawyer’s ability to identify and negotiate these alternatives is one of the most valuable things they bring to your case. Understanding the distinction between summary conviction and indictable offences is essential here.

Constitutional Challenges

As discussed above, your lawyer can challenge the constitutionality of the mandatory minimum itself. If the challenge succeeds, the minimum is struck down, and the judge is free to impose any fit sentence. This is a complex legal argument that requires detailed written submissions, case law analysis, and often expert evidence — but it is a real and powerful tool.

Challenging the Underlying Charge

The most straightforward way to avoid a mandatory minimum is to be acquitted. If the Crown cannot prove the offence beyond a reasonable doubt, there is no conviction and no sentence. Your lawyer will examine every element of the offence, challenge the evidence, and hold the Crown to its burden of proof. A weak identification, an unlawful search, a Charter violation that leads to the exclusion of key evidence — any of these can result in an acquittal.

Bill C-5 and the Changing Landscape

The law around mandatory minimums is not static. In 2022, Parliament passed Bill C-5, which repealed mandatory minimums for a number of offences, including:

• Several drug offences under the Controlled Drugs and Substances Act (trafficking, possession for the purpose of trafficking, importing/exporting, and production)
• Certain firearms offences, including some related to unauthorized possession and trafficking
• Tobacco trafficking and robbery with a firearm (in certain circumstances)

Bill C-5 also expanded the availability of conditional sentences (house arrest) for some offences, giving judges more flexibility at sentencing.

This legislation reflected a broader public debate about whether mandatory minimums achieve their stated goals of deterrence and denunciation, or whether they simply produce unjust sentences for low-level offenders while doing nothing to address the root causes of crime. That debate continues, and further changes to mandatory minimum legislation are possible.

The practical takeaway is this: the list of offences carrying mandatory minimums changes over time. What was mandatory last year may not be mandatory today. Your lawyer needs to be current on the law as it stands at the time of your sentencing.

Contact Mor Fisher LLP

If you are facing a charge that carries a mandatory minimum sentence, you need a lawyer who understands the full range of options available to you — from plea negotiations to constitutional challenges to a vigorous defence at trial. The earlier you retain counsel, the more options you have.

Mor Fisher LLP represents clients throughout Ontario on serious criminal matters, including impaired driving, firearms offences, drug trafficking, and sexual offences. We are based in Barrie and appear in courts across the province.

Contact us today for a confidential consultation. We will review the charges against you, explain the mandatory minimums that may apply, and develop a strategy to achieve the best possible outcome in your case.