Legislative Backgrounder

• Previous Page
• Table of Contents

Table of Contents

• Part 1 – Introduction
• Part 2 – Background
  1. Sentencing in Canada
  2. What is a Mandatory Minimum Penalty (MMP)?
  3. What is a Conditional Sentence Order (CSO)?
  4. Diversion for Simple Drug Possession Offences
  5. Sentencing measures and the overrepresentation of Indigenous peoples, Black Canadians and marginalized populations
• Part 3 – Overview of proposed reforms
  1. Legislative Objective
  2. Repeal of Certain MMPs (Clauses 2-13, and 15-18)
  3. Amendment to CSO Eligibility (Clause 14)
  4. Encouraging Diversion for Simple Drug Possession Offences (Clause 20)
  5. Coming into Force
• Bibliography

Part 1 - Introduction

Discrimination and racism against Indigenous peoples, Black Canadians, and members of marginalized communities (such as those with substance use or mental health issues) occurs throughout Canada’s criminal justice system (CJS).

This bill proposes to repeal mandatory minimum penalties (MMPs) for all drug offences, one tobacco-related offence, and 13 firearm-related offences. It will also allow for a greater use of conditional sentence orders (CSOs), and encourage diversion for simple drug possession offences. The proposed reforms align with commitments made in the 2021 Speech from the Throne to reform the CJS and in the 2021 Mandate Letter of the Minister of Justice to secure support for the swift passage of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, to reduce reliance on MMPs and promote non-criminal approaches to drug possession. Sentencing policies focusing excessively on punishment through incarceration, including through the increased use of MMPs, have negatively impacted the efficiency and fairness of the CJS, and have contributed to the over-incarceration of Indigenous peoples, Black Canadians and members of marginalized communities in Canada.

MMPs require judges to impose a sentence of imprisonment equal to or longer than the MMP for that offence. This is true even in cases where a judge determines that imprisonment is not proportionate, or that the MMP would be longer than what would have been imposed had an MMP not applied, given the nature of the offence and the offender’s circumstances. Evidence supports an approach that promotes the greater use of sanctions other than imprisonment (for example, community-based sentences), in appropriate circumstances, in order to direct offenders towards treatment and services that will promote rehabilitation of offenders and reduce recidivism.

The proposed reforms respond to recommendations from the Truth and Reconciliation Commission of Canada (TRC), the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG), and prominent racial justice and criminal justice advocates. The TRC called for the elimination of Indigenous overrepresentation in correctional institutions over the next decade (Call to Action (CTA) 30), including through amendments to the Criminal Code in the areas of MMPs and CSOs (CTA 32). Similarly, in its final report, the MMIWG called for all levels of government to evaluate the impact of MMPs on the over-incarceration of Indigenous women, girls, and 2SLGBTQQIA people and to take appropriate action to address their over-incarceration (Call for Justice 5.14). In their June 2020 statement, the Parliamentary Black Caucus called for the elimination of MMPs, the re-evaluation of restrictions on conditional sentencing, and for more community-based diversion programs such as drug treatment courts.

The proposed reforms requiring the police and prosecutors to consider diverting simple drug possession cases at an early stage support the Government’s commitment to address the ongoing opioid crisis. They respond to a growing consensus in Canada that problematic substance use is a public health issue requiring a health-focussed response instead of criminal prosecution.

The July 2020 Report of the Canadian Association of Chiefs of Police on decriminalization for simple possession of illicit drugs notes that criminal sanctions have limited effectiveness in addressing public safety concerns relating to substance use. The Report states that diversion provides new opportunities to make positive impacts in communities such as reducing or preventing crime, and improving health and safety outcomes for individuals who use drugs.^Footnote1

In August 2020, the Director of Public Prosecutions (PPSC) issued a guideline directing federal prosecutors to pursue diversion for simple drug possession cases and to limit prosecutions to serious drug cases that raise public safety concerns.^{Footnote 2} The proposed reforms would require that diversion for simple drug possession be equally considered by law enforcement and crown prosecutors across the country, including in Quebec and New Brunswick where drug charges are not prosecuted by PPSC.

Part 2 – Background

• I. Sentencing in Canada

  Sentencing in Canada is an individualized process that requires courts to impose sanctions that reflect the offender’s degree of responsibility and the gravity of the offence, having regard to a number of factors. Courts are guided through this individualized process by principles articulated in section 718 of the Criminal Code and reflected in case law. A sentence must be proportionate to the circumstances of the offence and the offender. The sentence must also reflect one or more of following objectives:

  • Denounce the unlawful conduct;
  • Deter the specific offender from reoffending or the general public from committing similar offences;
  • Separate the offender from society, where necessary;
  • Rehabilitate the offender;
  • Provide reparations to victims or to the community; and
  • Promote a sense of responsibility in the offender.

  A sentencing court looks at the facts surrounding the commission of the offence and assesses the seriousness of the conduct. The court must consider all aggravating and mitigating factors specific to the case, and tailor the sentence accordingly. A sentence cannot exceed the maximum sentence set out in the Criminal Code, or fall below the mandatory minimum penalty, where applicable.

  The court also looks at the offender’s history and personal circumstances. Courts may also obtain additional information relating to the personal circumstances of the offender and the impact of the offence on the victims. They must consider victim impact statements, which provide information regarding the physical or emotional harm, property damage or economic loss suffered by the victim(s). A court may also order a pre-sentence report, which provides additional information relating to the offender’s age, maturity, character, behaviour, attitude, community and family support, substance use, education, and potential for rehabilitation.

  In cases where the offender is Indigenous, a Gladue report should be prepared to provide the court with information relating to the systemic and background factors that have contributed to bringing the offender before the court. Where the offender is Black or otherwise racialized, an Impact of Race and Culture Assessment (“IRCA”), sometimes known as an “enhanced pre-sentence report” - may be prepared to provide the court with information about the offender’s racial and cultural heritage and their experience with systemic racism that may have contributed to bringing them before the court.

• II. What is a Mandatory Minimum Penalty (MMP)?

  An MMP is a penalty where the minimum sentence length is set by Parliament. If an offence includes an MMP, imprisonment is mandatory.^{Footnote 3}

  Until the mid-2000s, MMPs largely remained the exception, applying primarily to particularly serious crimes. During the last 15 years however, there has been an increased reliance on MMPs. Since 2006, 30 offences in the Criminal Code were amended to increase existing MMPs or to create new ones.

  Currently, the Criminal Code provides MMPs for 67 offences, including for firearms offences, sexual offences, impaired driving, kidnapping, human trafficking, sex trade offences, murder, and high treason. The Controlled Drugs and Substances Act (CDSA) contains six MMPs that target the trafficking, import/export and production of certain drugs (for example, cocaine and heroin). MMPs range from 14 days imprisonment to a mandatory sentence of life imprisonment for murder and high treason.

  MMPs prevent courts from considering punishments other than imprisonment, and so they can be difficult to reconcile with the direction to courts in paragraphs 718.2(d) and (e) of the Criminal Code to use imprisonment with restraint, and to consider all other available sanctions that are reasonable in the circumstances. MMPs may also, in some circumstances, frustrate the specific direction to courts in paragraph 718.2(e) of the Criminal Code to pay particular attention to the circumstances of Indigenous offenders (Gladue factors) and to consider all sanctions other than imprisonment for Indigenous offenders.

  As a result, they have received mixed treatment from courts across the country. For instance, the Supreme Court of Canada (SCC) has upheld the constitutionality of a four year MMP for the use of a firearm in a criminal negligence causing death case (Morrisey, 2000), a four year MMP for manslaughter with a firearm (Ferguson, 2008) and an MMP of life imprisonment without parole for 25 years for first degree murder (Luxton, 1990), while striking down a seven year MMP for importing narcotics (Smith, 1987). It has struck down the three and five year MMPs for illegal possession of a restricted/prohibited firearm (Nur, 2015) and a one year MMP for drug trafficking (Lloyd, 2016)^{Footnote 4}. In Lloyd, the SCC affirmed that MMPs that apply to offences that can be committed in “various ways, under a broad array of circumstances and by a wide range of people” are constitutionally vulnerable. As a result, MMPs may be vulnerable to successful Charter challenges where they can apply to a wide range of criminal wrongdoing, including conduct that would be considered comparatively less serious in some circumstances, and for which the MMP may be grossly disproportionate.

• III. What is a Conditional Sentence Order (CSO)?

  A CSO is a sentence that allows an offender to serve their term of imprisonment in the community under strict conditions, such as confinement to house, curfew, treatment, and/or restrictions on owning/possessing/carrying a weapon. CSOs are only available if an offender has been sentenced to a term of imprisonment of less than two years, the offence is not punishable by an MMP and only in cases where the court is satisfied that allowing the offender to serve their sentence in the community would not pose a risk to public safety.

  Bill C-41, An Act to Amend the Criminal Code (Sentencing) and Other Acts in Consequence Thereof, was enacted by Parliament in 1996 (S.C. 1995, c. 22). It introduced the conditional sentencing regime to the Criminal Code. Its aim was to promote the protection of the public by seeking to separate the most serious offenders from the community while providing that less serious offenders can remain in the community while still adhering to appropriate conditions. ^{Footnote 5}

  Later amendments to the Criminal Code, such as those enacted by Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment) (S.C. 2007, c. 12), and Bill C-10, the Safe Streets and Communities Act (S.C. 2012, c. 1), restricted the availability of CSOs. CSOs were made unavailable for all offences punishable by maximum terms of imprisonment of 14 years or more – regardless of the sentence length the court deemed appropriate for the offender in question – as well as for some offences prosecuted by indictment and punishable by a maximum term of ten years imprisonment. These amendments greatly diminished the use of CSOs. Statistics Canada data shows that the number of cases with a CSO increased from 3,877 cases in 1998/1999 to 11,545 cases in 2004/2005, and decreased to 6,720 cases in 2019/2020. These restrictions have been the subject of a number of Charter challenges. ^{Footnote 6}

• IV. Diversion for Simple Drug Possession Offences

  Section 717 of the Criminal Code authorizes provincial and territorial governments to establish approved alternative measures for pre- or post-charge diversion of adult accused when police or prosecutors determine that the alternative measures are consistent with the protection of society and are appropriate in the circumstances of a given case.

  Similarly, section 4 of the Youth Criminal Justice Act provides that extrajudicial measures, including taking no further action, or issuing warnings or referrals to community-based programs, should be used if they are adequate to hold a young person accountable for his or her offending behaviour.

  Paragraphs 10(a) and (b) of the CDSA allow the court to delay sentencing with the consent of the Attorney General and the offender, after considering the interests of justice and the victim, to permit the offender to attend a drug treatment program approved by the province under the supervision of the court such as Drug Treatment Courts.

• V. Sentencing measures and the overrepresentation of Indigenous peoples, Black Canadians and marginalized populations

  The overrepresentation of Indigenous peoples, Black Canadians and marginalized people in the CJS is well known. In 1999/2000, Indigenous peoples represented approximately 2% of the Canadian adult population but accounted for approximately 17% of admissions to both provincial/territorial and federal sentenced custody. In 2021, despite representing 5% of the Canadian adult population, Indigenous adults account for 32% of federally incarcerated inmates, and Indigenous women account for almost half (48%) of federally incarcerated women^{Footnote 7}. Similarly, in 2018-2019, Black inmates represented 7.2% of the federal offender population but only 3% of the Canadian population.^{Footnote 8}

  Black and other visible minority offenders are also more likely to be admitted to federal custody for an offence punishable by an MMP. Data from the Correctional Service of Canada’s Offender Management System (OMS) covering a federal admissions cohort from 2007/2008 to 2016/2017 revealed that almost half (48%) of visible minority offenders were admitted with an MMP offence as the most serious offence in the sentence, as were 39% of Black offenders, 20% of Indigenous offenders, and 31% of white offenders.^{Footnote 9}

  While Indigenous offenders made up an increasingly large proportion of offenders admitted for an offence punishable by an MMP from 17% in 2010/2011 to 22% in 2019/2020, the proportion of Black and other visible minority offenders admitted with an MMP remained steady. With regards to specific offences, Black offenders comprised the largest proportion of offenders convicted of a CDSA offence (importing/exporting or possession for the purpose of exporting), 30% and 40% of each group, respectively, have been admitted to federal custody for such offences over the past 10 years. During the same time period, Indigenous and Black offenders were disproportionately represented among offenders admitted for a firearm-related offence. They made up 30% and 17% of these offenders, but only 5% and 3% of the Canadian population, respectively.

  Existing sentencing measures have contributed to inefficiencies in the CJS. Data shows that the increased use of MMPs has had observable impacts on the CJS. Trials now take longer: between 1996/1997 and 2019/2020, the time from first appearance to decision has increased 218% for firearms offences (from 89 to 283 days), and 47% for CDSA offences (from 198 to 291 days). Matters are also more likely to proceed to trial because MMPs discourage accused from pleading guilty and cases take longer to complete. For example, between 1996/1997 and 2011/2012, the proportion of guilty decisions (which includes guilty pleas) ranged between 60% and 66%, but decreased to 55% by 2019/2020. Compounding the inefficiencies in the CJS, the wide use of MMPs has resulted in a significant increase in Charter challenges. As of January 19, 2022, 220 of the 655 ongoing Charter challenges being tracked by Justice Canada were related to MMPs, and 45 were related to CSOs.

Part 3 – Overview of proposed reforms

• I. Legislative Objective

  The objective of this legislation is promote fairer and more effective responses to criminal conduct, and to address systemic racism in Canada’s criminal justice system while maintaining public safety. In pursuit of this objective, this legislation proposes to repeal certain MMPs from the Criminal Code and the CDSA; increase the availability of CSOs; and lastly, encourage greater use of diversion programs for simple drug possession.

• II. Repeal of Certain MMPs (Clauses 2-13, and 15-18)

  MMPs would be repealed for the following offences in the Criminal Code:

  • Using a firearm or imitation firearm in commission of offence (two separate offences)
    • Paragraphs 85(3)(a) and (b): MMPs of 1 year (first offence) and 3 years (second and subsequent offence) (Clause 2)
  • Possession of a firearm or weapon knowing its possession is unauthorized (two separate offences)
    • Paragraphs 92(3)(b) and (c): MMP of 1 year (second offence) and 2 years less a day (third and subsequent offence) (Clause 3)
  • Possession of prohibited or restricted firearm with ammunition
    • Subparagraphs 95(2)(a)(i) and (ii): MMPs of 3 years (first offence) and 5 years (second and subsequent offence) (Clause 4)
  • Possession of weapon obtained by commission of offence
    • Paragraph 96(2)(a): MMP of 1 year (Clause 5)
  • Weapons trafficking (excluding firearms and ammunition)
    • Subsection 99(3): MMP of 1 year (Clause 6) (the MMPs of 3 and 5 years in subsection 99(2) would remain)
  • Possession for purpose of weapons trafficking (excluding firearms and ammunition)
    • Subsection 100(3): MMP of 1 year (Clause 7) (the MMPs of 3 and 5 years in subsection 100(2) would remain)
  • Importing or exporting knowing it is unauthorized
    • Subsection 103(2.1): MMP of 1 year (Clause 8) (the MMPs of 3 and 5 years in subsection 103(2) would remain)
  • Discharging firearm with intent
    • Paragraph 244(2)(b): MMP of 4 years (Clause 10) (the MMPs of 5 and 7 years where a prohibited/restricted firearm is used or where the offence is linked to organized crime in subparagraphs 244(2)(a)(i) and (ii) would remain)
  • Discharging firearm — recklessness
    • Paragraph 244.2(3)(b): MMP of 4 years (Clause 11) (the MMPs of 5 and 7 years where a prohibited/restricted firearm is used or where the offence is linked to organized crime in subparagraphs 244.2(3)(a)(i) and (ii) would remain)
  • Robbery with a firearm
    • Paragraph 344(1)(a.1): MMP of 4 years (Clause 12) (the MMPs of 5 and 7 years where a prohibited/restricted firearm is used or where the offence is linked to organized crime in subparagraphs 344(1)(a)(i) and (ii) would remain)
  • Extortion with a firearm
    • Paragraph 346(1.1)(a.1): MMP of 4 years (Clause 13) (the MMPs of 5 and 7 years where a prohibited/restricted firearm is used or where the offence is linked to organized crime in subparagraphs 346(1.1)(a)(i) and (ii) would remain)
  • Selling, etc., of tobacco products and raw leaf tobacco
    • Subparagraphs 121.1 (4)(a)(i),(ii) and (iii): MMPs of 90 days (second offence), MMP of 180 days (third offence) and MMP of 2 years less a day (fourth and subsequent offence) (Clause 9)

  MMPs would be repealed for the following offences in the CDSA:

  • Trafficking of a Schedule I (cocaine, heroin, methamphetamine, etc.) or Schedule II (synthetic cannabinoids) drug or Possession of a Schedule I or II drug for the purpose of trafficking
    • Section 5(1); 5(2); 5(3)(a)(i), (ii): 1 year with aggravating factors (organized crime; threat or use of violence; threat or use of weapons), 2 years with aggravating factors (in prison; in/ near a school or in/near area normally frequented by youth or in the presence of youth; in concert with a youth; in relation to a youth (e.g., selling to a youth). (Clause 15)
  • Importing / Exporting of a Schedule I (cocaine, heroin, methamphetamine, etc.) or Schedule II (synthetic cannabinoids) drug or Possession of a Schedule I or Schedule II drug for the purpose of exporting
    • Section 6(1); 6(2); 6(3)(a), (a.1): 1 year for Schedule II drug or less than 1 kg of schedule I drug if (1) for the purpose of trafficking, (2) the person abused a position of trust, or (3) the person used access to a restricted area to commit offence; 2 years if more than 1 kg of Schedule I substances. (Clause 16)
  • Production of Drugs
    • Schedule I Drug (cocaine, heroin, methamphetamine, etc.): Section 7(1); 7(2)(a): 2 years, or 3 years with health and safety factors (property belonging to 3rd party used; potential security, health or safety hazard to children; potential public safety hazard in residential area; placement or setting of a trap)
    • Schedule II Drug (synthetic cannabinoids): Section 7(1), 7(2)(a.1)(i), (ii): 1 year if production for the purposes of trafficking, 18 months with health and safety factors (property belonging to 3rd party used; potential security, health or safety hazard to children; potential public safety hazard in residential area; placement or setting of a trap) if production for the purposes of trafficking. (Clause 17)

  The repeal of MMPs does not mean that these offences are not serious, nor does it signify that sentences for these offences should be non-custodial; rather, the repeal serves to restore judicial discretion in sentencing for these offences and provide the flexibility to impose a just sentence in all cases. Courts could impose non-custodial sentences or sentences of imprisonment below, or above, the current MMP when satisfied that such a sentence would be proportionate to the degree of responsibility of the offender and the gravity of the offence.

• III. Amendment to CSO Eligibility (Clause 14)

  Increasing the number of offences eligible for CSOs will allow courts to more effectively apply the principle of restraint which requires judges to consider all available sanctions, other than imprisonment, for all offenders who do not pose a risk to public safety. When available and appropriate in the circumstances, conditional sentences have been shown to reduce and prevent crime by enabling individuals to maintain their employment, continue caring for children or family members in need, or seek counselling or treatment for problematic substance use. The proposed reforms would re-align the use of CSOs with the intent behind their creation, including to decrease the use of imprisonment for less serious crimes.

  This legislation proposes to repeal limits on the availability of CSOs for offences punishable by a maximum sentence of 10 years or more. These offences would be eligible for a CSO where the sentencing judge determines that a custodial sentence of under two years is appropriate in the circumstances of the offence, that a CSO would not endanger public safety, and that a community-based sentence would be consistent with fundamental sentencing principles.

  CSOs would remain unavailable for the offences of advocating genocide, torture, attempted murder and murder, as well as for any offence with an MMP. CSOs would also remain unavailable for 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.

• IV. Encouraging Diversion for Simple Drug Possession Offences (Clause 20)

  The proposed reforms would amend the CDSA in order to require a peace officer or prosecutor to consider issuing a warning, referring an individual to a treatment program, or taking no further action, instead of commencing or proceeding with criminal charges for simple drug possession.

  The peace officer or prosecutor’s decision would be guided by a set of principles, set out in the CDSA (proposed section 10.1). These principles acknowledge the large body of research demonstrating that problematic substance use is primarily a health and social issue. The research suggests that the best way to address the root causes of problematic substance use is through evidence-based interventions focused on education, treatment, aftercare, rehabilitation and social reintegration. The proposed principles are as follows:

  • problematic substance use should primarily be treated as a health and social issue;
  • evidence-based interventions and best practices should focus on harm-reduction principles for individuals, families and communities by protecting the health, dignity and human rights of individuals who use drugs;
  • CJS responses in respect of simple drug possession for personal use are not consistent with established public health evidence because they can increase the stigma associated with drug use;
  • interventions ought to focus on addressing the root causes of problematic substance use, for instance by favoring measures such as education, treatment, aftercare, rehabilitation and social reintegration; and
  • it is more appropriate to expend scarce judicial resources on offences that pose a risk to public safety.

  The amendments would further provide that a prosecution should only be commenced or continued in cases where a warning or alternative measures are not appropriate. While records of warnings or referrals may be kept by a police force in order to assist with an assessment of the effectiveness of prior diversionary referrals, these records would not be admissible in proceedings.

• V. Coming into Force

  The proposed legislation would come into force on the day it receives Royal Assent.

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