By Cameron Rogers
Recently, the federal government tabled Bill C-22 in the House of Commons, which contains important implications for sentencing. Such provisions include the removal of mandatory minimum sentence for all drug offences and certain gun crimes, allowance for greater use of conditional sentences and requires police and prosecutors to consider alternative methods to prosecution for drug possession.
This is a welcome development as mandatory minimums do not deter criminal activity; they often result in overly harsh penalties and can be a violation of a Canadian citizen’s Canadian Charter of Rights and Freedoms rights. Furthermore, giving judges wider latitude to consider conditional sentences will address over-incarceration in Canada. Finally, drug use is a public health issue and addressing it as such can help rehabilitate individuals. This blog will examine Bill C-22 and the surrounding sentencing issues it touches on.
Mandatory Minimum Sentences Fail to Protect Canadian Society
The provisions in Bill C-22 provide much-needed reversal to the widespread presence of mandatory minimums in Canada. In 2004, there were 24 federal offences subject to mandatory minimums. Then, the federal government began to enact mandatory minimum sentences for many offences. By 2015, there were 72 offences that had mandatory minimums in Canada. Such an expansive use of mandatory minimum sentences is antithetical to Canadian values.
For a while, experts have warned that mandatory minimum fail to serve a deterrent effect. For example, a 2005 study from the Department of Justice found that mandatory minimums “are not an effective sentencing tool.” A more recent study found that in both Canada and the United States, there is “no evidence [mandatory minimum penalties] have deterred crime” and held that such penalties are overly harsh. Furthermore, they can actually increase an individual’s likelihood to reoffend.
The courts have also found mandatory minimums to be harsh penalties that contravene our rights in Canada. They have found many mandatory minimum sentences to be grossly disproportionate and have struck them down because they are contrary to section 12(a) of the Charter.
These harsh mandatory minimum sentences include first time weapon and drug offences. For example, s.95(2)(i) and (ii) of the Criminal Code deals with possession of restricted or prohibited firearm with ammunition. On May 1st, 2008 the government enacted a mandatory minimum of 3 years, even though the offence is first time and a mandatory minimum of 5 years for a second offence. Since then, multiple courts have found the mandatory is grossly disproportionate and unconstitutional. Bill C-22 finally eliminates the mandatory minimums for these offences.
By eliminating certain mandatory minimum penalties, Bill C-22 gives judges wider discretion to consider a defendant’s circumstances. These considerations have the effect of giving an offender a sentence that is tailored to their unique circumstances.
If an individual is convicted of an offence, a sentencing judge may determine that the offender serve the sentence in the community, subject to certain requirements. This is a conditional sentence. Bill C-22 provides a welcome remedy to over-incarceration – particularly amongst racialized minorities such as Black Canadians and Indigenous offenders. Giving judges greater latitude to use conditional sentences will allow for a sentence that is tailored to the individual’s circumstances. It further helps their rehabilitation by allowing them to reintegrate into society.
The courts have been attuned to the fact that restricting conditional sentences exacerbates disproportionate incarceration of racialized people. In the recent case of R. v. Sharma, the majority of the Court of Appeal for Ontario examined a provision in the Criminal Code barring conditional sentences for individuals convicted of an offence where the maximum penalty is 14 years or life in prison. The majority ruled that the provision maintained the disproportionate incarceration of racialized minorities in society and was contrary to the Charter.
Alternative for Simple Drug Possession
Bill C-22 is also encouraging in how it characterizes drug possession and use. Notably, it acknowledges that “problematic substance use should be addressed primarily as a health and social issue.” Such a stance recognizes the health struggles associated with substance use and acknowledges the position that drug use is better treated than punished.
An example of a diversionary process under the Bill C-22 initiative would be Drug Treatment Courts, where individuals can receive health support for substance use. Ultimately, these programs take on a rehabilitative approach – recognizing that substance use is a health, not criminal, issue. While the bill does not provide a complete overhaul of how law enforcement approach drug possession, it begins to recognize that the most effective way to address drug possession and use is to treat rather than punish and further disenfranchise an individual.
Bill C-22 is a positive development that will allow individuals to reintegrate into the community and address inequities that affect marginalized people in our criminal justice system and society. Despite this welcome news, there is still room to address systemic factors that increase an individual’s likelihood they will end up in the criminal justice system such as poverty and discrimination.
This is a Bill which proposes changes as to intended current government policy, but has not been passed into law yet. Ultimately if passed, Bill C-22 will allow judges to consider the background factors of the accused and tailor a sentence that is proportionate to a defendant’s unique situation. Furthermore, this bill provides a welcome development in sentencing and can allow for individuals accused of a crime to move on with their lives.
If you have been charged with an offence, you will want an experienced criminal defence lawyer. We know your rights and are here to fight for them. Our lawyers will work closely with you to fight your charges. Contact us for a free 30-minute consultation.
 R. c. Lefrançois, 2018 QCCA 1793; R. v. Bajwa, 2020 ONSC 185; R. v. Ball, 2019 ONSC 7162; R. v. Bruce, 2019 ONSC 5865