The Recognition of Prosecutorial Obligations in an Era of Mandatory Minimum Sentences of Imprisonment and Over-Representation of Aboriginal People in Prisons

Abstract

The presence of mandatory minimum sentences does not allow for judges to find alternatives to incarceration or go below the legislated minimum — effectively denying judges the ability to adequately take into account specific background as a possible mitigating factor. For these reasons, this article suggests that Gladue should be recognized as a stand-alone principle that is not rooted in the principle of proportionality in sentencing — and applies notably to prosecutors.