We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.

Indigenous Watchdog Status Update

Current StatusJune 14, 2021IN PROGRESS
Current StatusMarch 31, 2021IN PROGRESS

Why “Stalled”?

The January 2021 mandate letter to the Minister of Justice and Attorney-General of Canada David Lametti states as a priority to “introduce legislation and make investments that take action to address systemic inequities in the criminal justice system, including to promote enhanced use of pre- and post-charge diversion and to better enable courts to impose sentences appropriate to the circumstances of individual cases. Bill C-22 “An Act to amend the Criminal Code and the Controlled Drugs and Substances Act” received First reading on Feb. 18, 2021. The Bill would repeal mandatory minimum penalties for all drug offences and some firearm offences, expand the use of conditional sentences, such as house arrest, for a variety of criminal offenses; and encourage police and prosecutors to keep drug possession cases out of the courts (Toronto Star, Feb. 19, 2021).

The previous mandate letter to Minister of Justice and Attorney-General of Canada David Lametti makes no mention of sentencing reform, including mandatory minimums, or the over-representation of Indigenous people in Canadian prisons that was one of the objectives identified on the previous Justice Minister’s mandate letter. (Global News. Jan. 18, 2020).

On Feb. 11, 2017 the previous Justice Minister, Jody Wilson-Raybould announced that the work has already begun to eliminate many of the Criminal Code’s mandatory minimum sentences and is “dissecting every mandatory penalty on the books”. Three years later, nothing has happened

Significant Deletion on Federal Government response

Deleted reference to “comprehensive approach that includes legislative, program and policy measures” and refers instead to the ongoing government review of the criminal justice system.

Legislative Progress of Bill S-251 and Bill C-22

Bill S-251: An Act to amend the Criminal Code (independence of the judiciary) and to make related amendments

  • May 29, 2018: Introduction and First reading in the Senate
  • Nov. 27, 2018: Second reading and referral to committee
  • June 21, 2019: Bill dies in the Senate with the dissolution of Parliament

Legislative Progress of Bill C-22

The Bill introduced for First Reading on Feb. 18, 2021 in the House of Commons proposes the following specific reforms:

  • Repeal MMPs for certain offences to address the disproportionate impact on Indigenous and Black offenders, as well as those struggling with substance use and addiction. This would restore the ability of a judge to impose appropriate sentences that respond to the facts of the case before them, including the individual’s experience with systemic racism and the risk they pose to public safety. This moves away from the one-size-fits-all approach, which has not deterred crime but has resulted in unfair outcomes and a less effective criminal justice system, as well as longer and more complex trials.
  • Allow for greater use of CSOs in cases where an offender faces a term of less than two years imprisonment and does not pose a threat to public safety. Under these circumstances, judges would have the option to order that the term be served in the community under strict conditions, including house arrest, curfew, and mandatory counselling or treatment for substance abuse. This change would allow for more effective rehabilitation and reintegration by enabling individuals to maintain their employment, or continue caring for children or family members in need. This approach has been proven to reduce recidivism.
  • Require police and prosecutors to consider other measures for simple possession of drugs such as diversion to addiction treatment programs, rather than laying charges or prosecuting individuals for simple possession of an illegal drug. The proposed amendments to the Controlled Drugs and Substances Act reinforce the Government’s commitment to treat substance use a health issue, and address the opioid crisis. It also aligns with calls heard from many in the law enforcement community and local leaders across the country.

Canadian Bar Association

Responding to the TRC Calls to Action March 2016

The CBA opposes mandatory minimum sentences and believes removing judicial discretion to design sentences tailored to the individual case is an inappropriate “one – size – fits – all” approach to justice.  This has disproportionately impacted already disadvantaged populations, notably including Indigenous people. In August 2011, the CBA canvassed evidence – based arguments against mandatory minimum sentences and recommended that if these sentences are to remain in Canadian law, judges must have recourse to a legislated exemption when they believe injustice would result from applying the sentences

Call to action 32 highlights the need to return discretion to judges determining a criminal sentence to allow an appropriate balancing of all relevant facts, including those pertaining to being an Indigenous person.

Federal Government Response: Sept. 5, 2019

The Government of Canada is continuing its review of the criminal justice system including sentencing measures enacted over the past decade, as well measures to enhance the use of restorative justice and alternatives to incarceration, and will continue to consult with key partners, including Indigenous peoples, lawyers, academics, other criminal justice professionals in order to assemble the best available evidence and guidance on this important issue.

Significant deletion:

  • Deleted reference to “comprehensive approach that includes legislative, program and policy measures”.