Questions and Answers

• Previous Page
• Table of Contents
• Next Page

Table of Contents

1. What are the reforms being proposed in this Bill?
2. What steps has the Government taken to address systemic racism and discrimination in the criminal justice system?
3. How will these reforms contribute to addressing the overrepresentation of Indigenous people, Black Canadians and members of marginalized communities?
4. Are these laws consistent with the UN Declaration on the Rights of Indigenous Peoples Act?
5. When would this Bill come into force?
6. Are the measures retroactive/retrospective?
7. How many MMPs are there in the Criminal Code and the Controlled Drugs and Substances Act?
8. What is the range of imprisonment for offences punishable by a MMP in the Criminal Code?
9. Which MMPs would be repealed as a result of Bill C-5?
10. Why is the government only repealing some MMPs?
11. Would repealing MMPs reduce the length/severity of sentences imposed?
12. What has been the impact of MMPs on the overrepresentation of Indigenous persons, Black Canadians and marginalized populations?
13. What does research say about the impacts of MMPs on the Criminal Justice System (CJS)?
14. What is the status of the constitutional challenges to MMPs?
15. As a result of the proposed reforms in this Bill, what firearms offences in the Criminal Code would no longer carry a MMP?
16. What firearms MMPs are not being amended through this Bill?
17. Why is the Government of Canada repealing MMPs for certain firearms offences?
18. Would repealing MMPs leave a gap in public safety – especially with an increase in gun violence in certain major Canadian cities?
19. Does the Government intend to reintroduce the reforms proposed in former Bill C-21, including increasing maximum penalties for firearms smuggling and trafficking?
20. What is a conditional sentence order?
21. What reforms would Bill C-5 make to the conditional sentence regime?
22. How often are CSOs imposed?
23. How would these amendments address the ONCA’s decision in R v Sharma?
24. Why have you appealed the Sharma decision?
25. Wasn’t the decision to appeal the decision in R v Sharma inconsistent with the Government’s decision to amend the CSO regime?
26. Would allowing a greater use of CSOs create a risk to public safety?
27. The reforms in Bill C-5 would make CSOs available for impaired driving offences for a first-time offender where there is bodily harm or death. How is this consistent with former Bill C-46, whose objectives were to strengthen penalties for impaired drivers?
28. What reforms are being proposed regarding the diversion of individuals for simple possession of drugs?
29. How would creating alternatives to laying/prosecuting a charge contribute to reducing recidivism?
30. If systemic racism is prevalent in the CJS from first contact with police through to sentencing, how does relying on police officers’ existing discretion remedy the problem?
31. RESPONSIVE ONLY: If pressed on how these proposals change the existing reality namely, that police and Crown already have discretion to make such choices
32. How do these reforms align with the Director of Public Prosecutions’ August 2020 Guideline: Prosecution of Possession of Controlled Substances Contrary to section 4(1) of the Controlled Drugs and Substances Act?
33. Would the proposed amendments compel peace officers and Crown Attorneys to use alternatives to laying a charge in all cases of drug possession offences?
34. Can a person who is in possession of an illicit substance be reuired to go to a treatment facility?
35. Why isn’t the Government decriminalizing all drugs if it acknowledges that drug use is a social and health issue?
36. Where is the Government in its consideration of exempting certain cities pursuant to subsection 56(1) of the Controlled Drugs and Substances Act?
37. Are stakeholders supportive of the Bill’s proposed reforms?
38. How does this Bill compare to international trends regarding MMPs?

Bill C-5: General Questions

1. What are the reforms being proposed in this Bill?

• The Bill proposes 3 broad categories of reforms.
• First, it would repeal the mandatory minimum penalties (MMPs) for:
  • all the drug-related offences in the Controlled Drugs and Substances Act (CDSA), including the MMPs struck down by the Supreme Court of Canada (SCC) in R v Lloyd;
  • 13 firearms-related offences, including the MMPs struck down by the SCC in R v Nur; and,
  • a tobacco-related offence.
• Second, it would increase the availability of conditional sentence orders, while ensuring that they remain unavailable for such serious offences as advocating genocide, torture and attempted murder, as well as 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; and,
• Third, it would amend the CDSA to require peace officers and prosecutors to consider alternatives to laying or proceeding with criminal charges for simple possession of drugs. To guide their discretion, it would provide a set of principles that leave the space to recognize that simple drug possession is primarily a health issue.

2. What steps has the Government taken to address systemic racism and discrimination in the criminal justice system?

• The Government of Canada has implemented several policy, legislative and programmatic efforts to address systemic racism and discrimination.
• For instance, the Government has made investments to:
  • improve access to justice for Indigenous people and support the development of an Indigenous Justice Strategy to address systemic discrimination and overrepresentation ($74.8 million over three years);
  • revive the Law Commission of Canada, which helps Canada’s legal system be more responsive to the complex legal challenges of the day such as systemic racism ($18 million over five years and $4 million ongoing); and,
  • improve the collection and use of disaggregated data ($6.7 million over five years and $1.4 million ongoing);
  • support the preparation of Gladue reports (a type of pre-sentence report) that provide sentencing courts with information about an individual’s Indigenous background to assist in imposing a fit sentence ($49.3 million over five years); and,
  • support the preparation of Impact of Race and Culture Assessments (IRCAs), which assist sentencing judges in considering the disadvantages and systemic racism that contributed to racialized Canadians’ interactions with the criminal justice system ($6.6 million over five years, and $1.6 million ongoing).

3. How will these reforms contribute to addressing the overrepresentation of Indigenous people, Black Canadians and members of marginalized communities?

• Evidence demonstrates that MMPs have a disproportionate and negative impact on Indigenous people, Black persons and members of marginalized communities.
• The Bill’s proposed repeal of these MMPs, while also increasing the availability of CSOs, would restore judicial discretion to give fuller consideration to:
  • the principle of restraint (paragraphs 718.2(d)), which directs judges to use imprisonment as a last resort.
  • the Gladue principle, which requires a court to consider all other available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of Indigenous offenders.
• The objectives of this Bill are also consistent with recent appellate decisions in Ontario (R v Morris (2021)) and Nova Scotia (R v Anderson (2021)) that held Impact of Race and Culture Assessments are important sentencing tools because they increase a court’s awareness about racialized offenders, their circumstances and communities, and support the crafting of fit sentences.
• The proposed amendments would also require peace officers and prosecutors to consider alternatives to laying or proceeding with criminal charges for simple possession of drugs, which recognizes the growing consensus in Canada that addiction is a public health issue requiring a health-focussed response instead of criminal prosecution.

4. Are these laws consistent with the UN Declaration on the Rights of Indigenous Peoples Act?

• I take very seriously the obligation to ensure that the laws of Canada are consistent with the UN Declaration on the Rights of Indigenous Peoples Act.
• BillC-5 is consistent with the proposed reforms and the rights and principles contained in the Declaration.
• The proposed amendments to the Criminal Code and the Controlled Drugs and Substances Act are intended to address the overrepresentation of Indigenous people in the criminal justice system.

5. When would this Bill come into force?

• The proposed reforms would come into force upon Royal Assent.

6. Are the measures retroactive/retrospective?

• The reforms proposed in this Bill are not retroactive or retrospective in nature. The reforms relating to MMPs and CSOs would apply to all offenders not yet sentenced at the date when the Bill comes into force as well as those who have not yet been charged for conduct committed before the Bill comes into force.

Mandatory Minimum Penalties

7. How many MMPs are there in the Criminal Code and the Controlled Drugs and Substances Act?

• Currently the Criminal Code provides MMPs for 67 offences, including for: firearms offences; sexual offences; impaired driving; kidnapping; human trafficking; sex trade offences; and, murder/high treason.
• The Controlled Drugs and Substances Act contains MMPs for six offences that target the trafficking, import/export and production of certain drugs (e.g., cocaine/heroin).

8. What is the range of imprisonment for offences punishable by a MMP in the Criminal Code?

• MMPs of imprisonment range from 14 days to life imprisonment for murder and high treason.

9. Which MMPs would be repealed as a result of Bill C-5?

• Bill C-5 proposes to repeal all the MMPs in the Controlled Drugs and Substances Act.
• It would also repeal the MMPs for certain firearm offences, including the MMPs struck down in R v Nur.
• It would also repeal MMPs for a tobacco offence in the Criminal Code.
• MMPs would remain for offences, including murder, sexual offences (including all child sexual offences), impaired driving offences, and, certain firearm offences, including the trafficking, import/export and firearm offences related to a criminal organization.

10. Why is the government only repealing some MMPs?

• This Bill targets MMPs for certain offences, including drug-related offences that have resulted in higher rates of incarceration and have had a negative disproportionate impact on Indigenous people and Black Canadians.
• For these offences, repeal of the MMPs would restore the ability of courts to consider each individual case that comes before them and determine an appropriate sentence based solely on the facts of that case – which could include incarceration where appropriate.
  

11. Would repealing MMPs reduce the length/severity of sentences imposed?

• The fundamental principle of sentencing requires judges to impose sentences that are proportionate to the gravity of the offence and the degree of responsibility of the offender, taking into account aggravating and mitigating factors.
• Repealing a MMP does not alter the fundamental obligation of a sentencing court to impose a fit sentence in all cases. Where parties disagree with the sentence, appellate courts can review the sentence imposed and make any corrections required to the sentence.

12. What has been the impact of MMPs on the overrepresentation of Indigenous persons, Black Canadians and marginalized populations?

• Data from the Correctional Service of Canada demonstrates the disproportionate negative impacts of MMPs on Indigenous people and Black Canadians.
• More specifically, of all admissions to federal custody between 2010/11 and 2019/20, 53% of all Black offenders ^Footnote1 and 36% of all Indigenous offenders were admitted for an offence punishable by a MMP.
• Between 2010/11 and 2019/20, Indigenous and Black offenders were disproportionately represented among offenders admitted for a firearm-related offence punishable by a MMP. Together, they made up almost half of these offenders (or 30% and 18%, respectively).
• Similarly, over the past 10 years, 45% of all federally incarcerated offenders convicted of importing/exporting or possession for exporting, a CDSA offence punishable by MMP, were Black adults.  

13. What does research say about the impacts of MMPs on the Criminal Justice System (CJS)?

• Research shows that the increased use of MMPs has had significant negative impacts on the CJS, including:
  • longer trials due, in part, to fewer guilty pleas; and,
  • increased Charter challenges.
• Evidence shows that MMPs do not deter individuals from committing crimes.

14. What is the status of the constitutional challenges to MMPs?

• As of March 30, 2022, the Department of Justice Canada was tracking 245 Charter challenges to MMPs. This represents a third (35%) of all Charter challenges to the Criminal Code that are being tracked by the Department.
• There are 27 challenges to MMPs for firearms offences – 7 at the appellate court level and 20 at the trial court level.
• There are 2 challenges to MMPs for drug offences, including trafficking, import/export and production — 0 at the appellate court level and 2 at the trial court level.
• Of all cases tracked by Justice Canada in the last decade, and where a decision was rendered, 69% of Charter challenges to MMPs for drug offences were successful. Almost half of the challenges to MMPs for firearms offences were successful (48%).

Firearms

15. As a result of the proposed reforms in this Bill, what firearms offences in the Criminal Code would no longer carry a MMP?

• The following MMPs would be repealed for firearm offences:
  • the 1 and 3 year MMPs for the use of a firearm or imitation in commission of an offence (paragraphs 85(3)(a) and (b);
  • the 4 year MMPs for robbery (paragraph 344(1)(a.1)), extortion (paragraph 346(1.1)(a.1)), and discharging a firearm with intent to cause bodily harm (paragraph 244(2)(b)) or while being reckless as to the consequences (paragraph 244.2(3)(b)) where a non-restricted or non-prohibited firearm is used (i.e. long guns);
  • the 1 and 2 year MMPs for possession of weapon/device/ammunition/firearm knowing unauthorized (paragraphs 92(3)(b) and (c));
  • the 3 and 5 year MMPs for possession of restricted/prohibited firearm with ammunition (paragraphs 95(2)(i) and (ii)); and
  • the 1 year MMP for possession of weapon obtained by crime (firearm) (section 96); weapons trafficking (subsection 99(3)), possession for purpose of weapons trafficking (subsection 100(3)), importing or exporting knowing it is unauthorized (subsection 103(2.1)).

16. What firearms MMPs are not being amended through this Bill?

• The 5 and 7 year MMPs for robbery (paragraphs 344(1)(a)(i) and (ii)), extortion (paragraphs 346(1)(a)(i) and (ii)), and discharging a firearm with intent to cause bodily harm (paragraph 244(2)(b)) or while being reckless as to the consequences (paragraph 244.2(3)(b)) where a restricted or prohibited firearm is used in the commission of an offence or where these offences are committed in connection with a criminal organization;
• The 3 and 5 year MMPs for firearms trafficking (paragraphs 99(2)(a) and (b)) and possession for the purpose of trafficking (paragraphs 100(2)(a) and (b)), and importing/exporting (paragraphs 103(2)(a) and (b)); and
• The 1 year MMP for making automatic firearms (paragraph 102(2)(a)).

17. Why is the Government of Canada repealing MMPs for certain firearms offences?

• These MMPs have documented negative disproportionate impacts on Indigenous people, Black Canadians and members of marginalized communities.
• This Bill proposes to give courts the flexibility to consider the full range of sentencing options.
• The repeal of these MMPs is not a signal to the Courts that firearm criminality is not serious and nothing in Bill C-5 would prevent courts from imposing stiff denunciatory sentences when appropriate.
• The Government continues to fight against serious gun crime that is why, in May 2020, it banned certain kinds of firearms that are designed for the battlefields and have no place on our streets.

18. Would repealing MMPs leave a gap in public safety – especially with an increase in gun violence in certain major Canadian cities?

• No. Despite repealing certain MMPs for firearms offences, courts would continue to be guided by jurisprudence in this area, which notes denunciation is a primary sentencing objective when gun criminality endangers public safety.
• The Government has also committed to bring forward further reforms in this area to increase maximum penalties for firearms trafficking and smuggling.
• The Bill also maintains MMPs for firearms offences involving the use of a prohibited or restricted firearm and where the offence is linked to organized crime.

19. Does the Government intend to reintroduce the reforms proposed in former Bill C-21, including increasing maximum penalties for firearms smuggling and trafficking?

• The Government has committed to continuing to fight gender-based violence and gun smuggling with measures previously introduced in former Bill C-21.
• This would include measures that would allow for the immediate removal of a firearm if a person is a threat to themselves or others, particularly to a spouse or partner (red flag laws) and increased maximum penalties for firearms trafficking and smuggling from 10 to 14 years imprisonment.

Conditional Sentence Orders (CSOs)

20. What is a conditional sentence order?

• A conditional sentence order (CSO) is a sentence of incarceration of less than two years that may be served in the community under strict conditions (for example, a curfew; house arrest; abstaining from the consumption of drugs and alcohol; abstaining from owing, possessing or carrying a weapon).
• CSOs were first enacted in 1996 to address the overreliance on incarceration, and the overrepresentation of Indigenous persons in correctional institutions, as well as to reflect the objectives of rehabilitation and restorative justice at sentencing.
• Amendments enacted in 2007 and 2012 significantly restricted their availability, making them unavailable for certain property offences and for indictable offences punishable by a maximum term of imprisonment of 10 years or more involving drugs, bodily harm or weapons.

21. What reforms would Bill C-5 make to the conditional sentence regime?

• The Bill would increase the availability of conditional sentence orders when offenders do not pose a risk to public safety and are facing terms of imprisonment that are under 2 years.
• Specifically, CSOs would become available for all offences, except for:
  • the offences of advocating genocide, torture and attempted murder;
  • offence punishable by a MMP;
  • terrorism and criminal organization offences that are prosecuted by way of indictment, and for which the maximum term of imprisonment is 10 years or more.

22. How often are CSOs imposed?

• Statistics Canada data shows that in 2019/2020, CSOs were imposed in 6,720 cases across Canada. By contrast, in 2004/2005, prior to the reforms that restricted their availability, CSOs were imposed in 11,545 cases across Canada.

23. How would these amendments address the ONCA’s decision in R v Sharma?

• In R v Sharma (2020), the Ontario Court of Appeal found that the unavailability of conditional sentences (CSOs) for offences punishable by a maximum term of imprisonment of 14 years or life, and for offences punishable by a maximum of 10 years imprisonment that involve the import, export, trafficking and production of drugs, violated the liberty (section 7) and equality (section 15) rights of the Charter.
• This case was heard by the Supreme Court of Canada on March 23, 2022. The Court reserved its judgment.
• This Bill would repeal the provisions that the ONCA found unconstitutional and that were the subject of the Sharma appeal before the Supreme Court of Canada.

24. Why have you appealed the Sharma decision?

• The Public Prosecution Service of Canada (PPSC), which is independent from the Department of Justice, has appealed the Sharma decision to clarify whether the conditional sentence provisions at issue in that case are constitutional under sections 7 and 15 of the Charter, including whether they discriminate against Indigenous offenders by restricting access to conditional sentences.
• The outcome of this case could have an impact on Parliament’s ability to legislate in the future, including in relation to other aspects of the criminal justice system.
• Ultimately, it was up to PPSC to determine whether to pursue the appeal in Sharma in light of the proposed amendments to the conditional sentencing regime in Bill C-5.

25. Wasn’t the decision to appeal the decision in R v Sharma inconsistent with the Government’s decision to amend the CSO regime?

• The decision to propose changes to the law in this area is not inconsistent with the position taken before the Supreme Court of Canada, the purpose of which was to clarify constitutional questions that may impact upon Parliament’s future ability to enact criminal law.
• Clarity on these issues will help to ensure that Canada’s criminal justice system remains fair and effective for everyone while contributing to a just, peaceful and prosperous society.

26. Would allowing a greater use of CSOs create a risk to public safety?

• No. Before imposing a CSO, the Court must be satisfied that a sentence of imprisonment of less than two years is appropriate, and also that its imposition would not endanger public safety and would be in keeping with the fundamental principles of sentencing.
• Strict conditions that are restrictive of the offender’s liberty are common with these sentences (Proulx, SCC 2000).

27. The reforms in Bill C-5 would make CSOs available for impaired driving offences for a first-time offender where there is bodily harm or death. How is this consistent with former Bill C-46, whose objectives were to strengthen penalties for impaired drivers?

• The proposed reforms in no way detract from the seriousness of the impaired driving offences and do not require a CSO to be imposed.
• Courts would still be required to impose proportionate sentences that respect the jurisprudence in this area.

Diversion for simple possession of drugs

28. What reforms are being proposed regarding the diversion of individuals for simple possession of drugs?

• The proposed changes would require police and prosecutors to consider alternatives to laying or proceeding with charges for the simple possession of drugs.
• Available alternatives would range from taking no action at all to issuing a warning or, if the individual agrees, diversion to an addiction treatment program.

29. How would creating alternatives to laying/prosecuting a charge contribute to reducing recidivism?

• The proposed amendments emphasize treatment programs: require police and prosecutors to consider alternative measures – including, diverting individuals to addiction treatment programs, giving a warning or taking no further action – instead of laying charges or prosecuting individuals for simple possession of an illegal drug.
• They also support police and prosecutors to exercise their discretion fairly and effectively by providing an evidence-based declaration of principles to guide police and Crown prosecutors in exercising discretion.
• Research has demonstrated that terms of incarceration increase risks of recidivism, particularly for lower-risk offenders.
• If an individual is diverted and is not charged, tried and does not receive a sentence or a criminal record, they may avoid the stigma, loss of employment opportunities, and disconnection with family and community that is associated with having been subjected to the CJS.

30. If systemic racism is prevalent in the CJS from first contact with police through to sentencing, how does relying on police officers’ existing discretion remedy the problem?

• Police will be guided in the use of their discretion by a set of principles that require them to consider simple drug possession as a public health issue instead of a criminal one.
• If the police officer, in a given case, fails to adequately consider alternatives to laying a charge for simple possession, the same responsibility will fall on the prosecutor to consider alternatives to proceeding with the charge.

31. RESPONSIVE ONLY: If pressed on how these proposals change the existing reality namely, that police and Crown already have discretion to make such choices

• While it is true that police and Crown have discretion to determine whether the standard charging and prosecutorial thresholds have been met in a given case, Bill C-5’s amendments would require all police and Crown to consider these principles in every case.
• This will also serve to promote consistency in criminal justice system responses across the country.

32. How do these reforms align with the Director of Public Prosecutions’ August 2020 Guideline: Prosecution of Possession of Controlled Substances Contrary to section 4(1) of the Controlled Drugs and Substances Act?

• The Director of Public Prosecutions’ August 2020 Guideline directs prosecutors to focus on the most serious drug possession cases, that is, those that raise public safety concerns for the prosecution, and to otherwise pursue suitable alternative measures and diversion from the CJS for these cases.
• Both the proposed amendments and the August 2020 Guideline recognize that substance use has a significant health component and that criminal sanctions as a primary response have limited effectiveness where criminality is caused by problematic substance use.

33. Would the proposed amendments compel peace officers and Crown Attorneys to use alternatives to laying a charge in all cases of drug possession offences?

• The proposed amendments would not force a peace officer or a Crown Attorney to use alternatives to laying a charge in cases of drug possession cases. Peace officers would retain their discretion regarding whether to lay a charge or take other action and the Crown would retain its discretion to pursue a prosecution.
• Additionally, a peace officer does not have to refer an individual who is in possession of an illicit substance to a treatment facility. The peace officer can choose to do nothing or simply issue a warning. The peace officer can also refer the person to other programs that may be of assistance.

34. Can a person who is in possession of an illicit substance be reuired to go to a treatment facility?

• No, such a person must consent to being sent to a treatment centre before being referred by the peace officer.

35. Why isn’t the Government decriminalizing all drugs if it acknowledges that drug use is a social and health issue?

• The suggestion to decriminalize all drugs raises significant public policy issues, that fall under the responsibility of the Minister of Health.
• It may also have consequences on our international obligations attached to the international drug conventions that Canada has ratified.
• While decriminalization remains an interesting proposition, it is not contemplated in Bill C-5, which is aimed at restoring judicial discretion at sentencing and providing more opportunities for pre-charge diversion for minor drug offences.

36. Where is the Government in its consideration of exempting certain cities pursuant to subsection 56(1) of the Controlled Drugs and Substances Act?

• These decisions are the responsibility of the Minister of Health and the Government has nothing to report at this time.

Stakeholders

37. Are stakeholders supportive of the Bill’s proposed reforms?

• Legal stakeholders including academics, bar associations, defence lawyers and members of the judiciary have long criticized MMPs, as well as restrictions on the use of conditional sentences, such that they are likely to welcome efforts to address these issues.
• Moreover, stakeholders who participated in the 2016 Criminal Justice System Review roundtables supported repealing MMPs, which many felt disproportionally impact marginalized people and have made the system less efficient. Many also suggested increasing the use of conditional sentences to reduce the reliance on incarceration and increase the availability of alternatives to criminal justice system responses.
• Victims’ groups are expected to have a mixed reaction on the proposed limited repeal of MMPs. However, advancing reforms that make the CJS fairer and more efficient benefits all persons who come into contact with the CJS, including victims who may be re-victimized by the having to participate in the criminal justice system.
• Moreover, Justice Canada Research on victims and CJS professionals has shown that Crown Attorneys, defence counsel and victim service providers believe that CSOs are appropriate where there is no risk of recidivism and where there is good reason to believe that the offender is able and motivated to rehabilitate.

International Perspectives

38. How does this Bill compare to international trends regarding MMPs?

• The proposed measures in Bill C-5 are generally consistent with international trends moving away from reliance on MMPs.
• Historically, the United States of America (federal and state levels) made great use of MMPs. However, in the last decade many states have moved toward reducing mandatory sentences, with a particular focus on non-violent and drug-related charges.
• France repealed all mandatory sentences enacted by the former government following the findings of a public commission that these tended to increase the prison population with no corresponding reduction in reoffending.
• The UK, Germany, Spain, Iceland and Switzerland all have measures akin to structured discretion built into their legislation allowing courts to depart from minimum prescribed sentences in certain circumstances.

• Previous Page
• Table of Contents
• Next Page