Mandatory minimum penalties (MMPs) for 14 Criminal Code offences and six offences under the Controlled Drugs and Substances Act are anticipated to be repealed in the coming year. Liberal Minister of Justice David Lametti has reintroduced legislation to restore judicial discretion in sentencing. Bill C-5 was announced in December to replace a prior Bill that was unable to proceed through Parliament due to the election call in the summer of 2021.
In February 2021, Minister of Justice and Attorney General David Lametti introduced Bill C-22, which was aimed at criminal justice reform through the repeal of some of the mandatory minimum penalties created under Steven Harper’s Conservative government. During his first election as leader of the Liberal Party, Justin Trudeau criticized MMPs as being ineffectual:
It’s the kind of political ploy that makes everyone feel good, saying, ‘We’re going to be tough on these people,’ but by removing judicial discretion, and by emphasizing mandatory minimums, you’re actually clogging up our jails for longer periods of time and not necessarily making our communities any safer.
DISPROPORTIONATE IMPACT ON MARGINALIZED COMMUNITIES
In his first Parliament, Prime Minister Trudeau mandated then-Justice Minister Jody Wilson-Raybould to review the changes that the previous government had made to the criminal justice system, specifically to consider whether the changes had disproportionately impacted some marginalized populations:
You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system. Outcomes of this process should include increased use of restorative justice processes and other initiatives to reduce the rate of incarceration amongst Indigenous Canadians…
In 2017, Statistics Canada undertook a study of the impacts of mandatory minimum penalties for certain offences, including those involving children and firearms offences. The study determined that custodial time increased for many of these offences as the mandatory minimums became a starting point for penalties and led to longer sentences and higher levels of incarceration generally:
The analysis of these selected offences has shown a considerable increase in custody sentences, sometimes exceeding the mandatory minimums prescribed by law.
With these longer sentences has come a significant increase in the proportion of Indigenous people in Canada’s jails. By the beginning of January 2020, Indigenous people represented over 30% of inmates in federal prisons while only making up approximately 5% of Canada’s population as a whole. Ivan Zinger, Canada’s Correctional Investigator, called the “Indigenization of Canada’s prison population” a “national travesty”.
In the government’s introduction of Bill C-22 in February 2021, Minister Lametti stated that mandatory minimum penalties “contribute to a system that disproportionately punishes Black Canadians and Indigenous peoples”. Going forward, Bill C-5 (which is identical to C-22) will effectively remove MMPs to allow for judges to exercise sentencing discretion for certain offences according to the circumstances of the offence and offender.
OFFENCES AFFECTED: WEAPONS, DRUGS AND TOBACCO
Under the Criminal Code, Bill C-5 will remove mandatory minimum penalties for 13 weapons-related offences and one tobacco-related offence:
- Using a firearm or imitation firearm in commission of offence (two separate offences)
- Possession of firearm or weapon knowing its possession is unauthorized (two separate offences)
- Possession of prohibited or restricted firearm with ammunition
- Possession of weapon obtained by commission of offence
- Weapons trafficking (excluding firearms and ammunition)
- Possession for purpose of weapons trafficking (excluding firearms and ammunition)
- Importing or exporting knowing it is unauthorized
- Discharging firearm with intent
- Discharging firearm — recklessness
- Robbery with a firearm
- Extortion with a firearm
- Selling, etc., of tobacco products and raw leaf tobacco
Mandatory minimum sentences currently imposed for six offences under the Controlled Drugs and Substances Act will also be repealed with the adoption of Bill C-5:
- Trafficking or possession for the purpose of trafficking (two separate offences)
- Importing and exporting or possession for the purpose of exporting (two separate offences)
- Production of substance Schedule I or II (two offence)
Mandatory minimum sentences for serious offences, including homicides, sexual assaults and other crimes involving the use of firearms and other weapons, are unaffected by Bill C-5.
SAFETY VS. SYSTEMIC CHANGE
Criticism from both sides of the political spectrum has followed the re-introduction by the Liberals of this legislation to remove certain mandatory minimums from the sentencing regime. On the Conservative side, critics characterize the changes as a weakening of the laws regulating firearms in Canada, while some progressives suggest that Bill C-5 does not go far enough to address the over-representation of Black and Indigenous people in Canada’s prison population.
Saskatchewan Tribal Council Chief Mark Arcand was “overjoyed” by the announcement, stating that Bill C-5 was “going to make change in First Nations people’s lives”. However, Akwasi Owusu-Bempah, a University of Toronto criminologist and special adviser to the Canadian Civil Liberties Association was less impressed with the scope of the changes:
I think repealing some (mandatory minimum sentences) and not all is a missed opportunity to do what’s right for our most vulnerable populations… The statements about dealing with racism and issues in the justice system facing Black and Indigenous people do not quite square with the fact that the decriminalization piece didn’t go further.
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