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Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act

August 2022

Overview

• Bill C-5 delivers on the Government’s Platform Commitment to reintroduce former Bill C-22, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act within the first 100 days.
• It also supports the Government’s commitments:
  • In the 2021 Speech from the Throne to fight systemic racism; and
  • To address the opioid crisis by providing space to treat simple drug possession as a health issue, rather than a criminal issue.

Overrepresentation by the Numbers

Overrepresentation statistics:

• In 2019/20, Indigenous adults represent 5% of Canadian population, but 30% of the federal offender population in custody;
• Indigenous women represent 5% of Canadian women, but 1% of federally incarcerated women;
• Black adults represent 3% of Canadian population, but 8% of federal offender population.

Overrepresentation for offences punishable by a MMP:

• Proportion of federal offenders admitted for an offence with MMP that are Indigenous increased over the past 10 years (17% in 2010/11 to 22% in 2019/2020);
• Between 2010/11 to 2019/20, 53% of all Black and 36% of all Indigenous offenders admitted to federal institutions were admitted for an offence with MMP;
• 45% of all federal offenders admitted for importing/exporting or possession for exporting, a CDSA offence punishable by MMP, were Black adults;
• 30% of all federal offenders admitted for a firearm-related offence punishable by MMP were Indigenous adults.

Sources: Public Safety; Correctional Service of Canada’s Offender Management System; 2016 Census of Population.

Objectives

Proposed reforms would maintain public safety and address:

• Overrepresentation of Indigenous people, Black persons and marginalized Canadians in the criminal justice system;
• Problematic impact of MMPs on the criminal justice system:
  • Lack of judicial discretion to craft proportionate sentences and apply Gladue principles;
  • Longer trials and fewer guilty pleas.
• Court findings of unconstitutionality, including Supreme Court of Canada decisions in R. v. Nur (2015) (MMP firearm offence) and R. v. Lloyd (2016) (MMP drug offence) and Ontario Court of Appeal (ONCA) in R. v. Sharma (2020) (restricted eligibility for conditional sentence of imprisonment).

Mandatory Minimum Penalties

Proposed amendments repeal MMPs for:

• All drug offences in the CDSA, including MMP struck down in R. v. Lloyd;
• Certain firearms offences, including the MMPs struck down in R. v. Nur / R. v. Charles;
• One tobacco-related offence.

• MMPs would remain for serious offences - such as murder and child sexual offences.
• MMPs would remain for firearm offences involving trafficking, import/export, certain uses of restricted or prohibited firearms or where linked to organized crime.

Considerations:

• Fundamental principle of sentencing – sentences must be proportionate to the degree of responsibility of the offender and the seriousness of the offence taking into account all aggravating and mitigating factors;
• Repealing MMPs enables judges to:
  • Impose just sanctions, including terms of imprisonment that are lower or higher than MMPs that would be repealed through this Bill;
  • Consider all sanctions, including those other than imprisonment, and all circumstances surrounding the offences, with particular attention to the personal circumstances of Indigenous offenders.

Conditional Sentence Orders

Existing provisions and measures:

• CSOs are available if a judge determines that the appropriate sentence is less than 2 years, that serving the sentence in the community would not endanger community safety, and that it would be consistent with fundamental sentencing principles;
• CSOs are not available for: offences punishable by a MMP, some offences punishable by a maximum of 10 years and for all offences punishable by a maximum of 14 years or life;
• Mandatory conditions: keep the peace and be of good behavior, remain within jurisdiction, abstain from communicating with any victim/witness or other person identified;
• Optional conditions: confinement to house, curfew, treatment, abstaining from consumption of drugs, or owning, possessing or carrying a weapon.

Proposed amendments increase the availability of CSOs by:

• Repealing existing restrictions on their availability for most offences, including those punishable by a maximum of 10 years or more.

Considerations:

• CSOs would remain unavailable for offences punishable by a MMP, and certain serious offences: advocating genocide, torture, attempted murder, terrorism and criminal organization offences that are prosecuted by way of indictment and for which the maximum term of imprisonment is ten years or more;
• CSOs were created in 1996 to address overreliance on incarceration for less serious crimes, and to address overrepresentation of Indigenous peoples;
• Responds to the ONCA decision in R. v. Sharma (2020) striking down limits to the availability of conditional sentence orders (CSO) for certain offences.

Evidence-Based Diversion for Simple Drug Possession

Proposed amendments to the CDSA:

• Require police and Crown prosecutors to consider diverting individuals to available alternative measures instead of laying/prosecuting a criminal possession charge;
• Possible actions: take no action, give a warning or refer an individual to alternative measures (such as public health treatment program);
• Prosecution only where not appropriate to deal with individual using warning or referral to alternative measures;
• Must keep record of warning or referral.

Considerations:

• Proposal similar to 2020 former Private Member’s Bill C-236, An Act to amend the Controlled Drugs and Substances Act (evidence-based diversion measures);
• Aligns with the Director of Public Prosecutions’ August 2020 guideline on prosecuting drug possession offences under the CDSA and consistent with recent report by the Canadian Association of Chiefs of Police.

Proposed principles to guide exercise of discretion:

• Provide evidence-based principles to guide police officers and prosecutors in the exercise of their discretion to divert simple possession of drugs cases at an early stage:
  1. Problematic substance use should be addressed primarily as a health and social issue;
  2. Interventions should be founded on evidence-based best practices and should aim to protect the health, dignity and human rights of individuals who use drugs, and to reduce harm to those individuals, their families and their communities;
  3. Criminal sanctions imposed in respect of the possession of drugs for personal use can increase the stigma associated with drug use and are not consistent with established public health evidence;
  4. Interventions should address the root causes of problematic substance use, including by encouraging measures such as education, treatment, aftercare, rehabilitation and social reintegration; and
  5. Judicial resources are more appropriately used in relation to offences that pose a risk to public safety.

Four Amendments to Bill C-5 Made in the House of Commons

• Three amendments to reforms on diversion of simple drug possession to:
  • Clarify the kind of information to be kept in warning and referral records, the use that can be made of such records, and to whom they may be disclosed;
  • Specify that past and future convictions must be kept separate and apart from other criminal convictions after a certain period of time; and
  • Clarify that social workers, medical professionals and service providers who come into possession of drugs in the course of their duties with the intention of lawfully disposing of them within a reasonable time have not committed the offence of simple possession (reflects the common law on innocent possession).
• Final amendment would require Committees of both the House of Commons and the Senate to carry out a comprehensive review of Bill C-5, commencing on the 4th anniversary of the day that Bill C-5 comes into force.

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