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• Bill C-5: Mandatory Minimum Penalties to be Repealed

  The Government recognizes that there is systemic racism in Canada’s criminal justice system. We have heard Canadians, the courts and criminal justice experts, and seen the evidence of the disproportionate representation of Indigenous peoples, as well as Black Canadians and members of marginalized communities, both as offenders and as victims.  The proposed legislation would help to address these issues. It would also ensure courts can continue to impose tough sentences for violent and serious crimes.

  Further to the Government’s commitment to reintroduce former Bill C-22 in the first 100 days of their mandate, on December 7, 2021, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, introduced Bill C-5, which proposes amendments to the Criminal Code and to the Controlled Drugs and Substances Act (CDSA). The objective of this bill is to maintain public safety while ensuring that responses to criminal conduct are fairer and more effective. These proposed amendments are an important step in addressing systemic issues related to existing sentencing policies.

  These proposed reforms were initially introduced during the second session of the 43^rd Parliament.

  Proposed changes

  Proposed changes to mandatory minimum penalties (MMPs) in Bill C-5

  • MMPs would be repealed for 14 offences in the Criminal Code.
  • All six MMPs in the CDSA would be repealed.

  What remains

  • MMPs would be retained for a number of offences, including:
    • murder
    • high treason
    • sexual offences (including child sexual offences)
    • impaired driving offences
    • some firearm offences, including firearms offences connected to a criminal organization.

  Why make these changes to MMPs

  Sentencing laws that have focused on punishment through imprisonment have disproportionately affected Indigenous peoples, as well as Black Canadians and members of marginalized communities. MMPs have also resulted in longer and more complex trials, including an increase in successful Charter challenges and a decrease in guilty pleas, which has compounded the impact for victims, who are more often required to testify. They have failed to deter crime.

  Addressing overincarceration rates

  These reforms would target MMPs that are associated with the overincarceration of Indigenous peoples as well as Black and marginalized Canadians. For instance, data show that:

  • Between 2007-2008 and 2016-2017, Indigenous and Black offenders were more likely to be admitted to federal custody for an offence punishable by an MMP. In 2020, despite representing 5% of the Canadian adult population, Indigenous adults accounted for 30% of federally incarcerated inmates. The proportion of Indigenous offenders admitted with an offence punishable by an MMP has almost doubled between 2007-2008 and 2016-2017, from 14% to 26%.
  • In 2018-2019, Black inmates represented 7% of the federal offender population but only 3% of the Canadian population.

  Promoting judicial discretion for sentencing

  Repealing certain MMPs would help ensure that a person found guilty of an offence is sentenced appropriately. 

  Sentencing judges would still be required to impose a sentence that is proportionate to the degree of responsibility of the offender and the seriousness of the offence, taking into account all aggravating and mitigating factors. This includes the risk to public safety. It also includes the individual and their experience with systemic racism.

  Repealing MMPs would provide sentencing judges with the flexibility to impose an appropriate sentence, including terms of imprisonment that are lower or higher than the MMPs that would be repealed.

  MMPs that would be repealed under Bill C-5

  Criminal Code

  The reforms to MMPs would only apply to certain offences, and would not limit the ability of a judge to impose a sentence of imprisonment, particularly where doing so is necessary to protect the safety of the public.

  To address the overincarceration rate of Indigenous peoples, as well as Black and marginalized Canadians, MMPs for the following offences would be repealed:

  • 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)
  • Possession of 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)
  • Possession of prohibited or restricted firearm with ammunition
    • Paragraphs 95(2)(i) and (ii):  MMPs of 3 years (first offence) and 5 years (second and subsequent offence)
  • Possession of weapon obtained by commission of offence
    • Paragraph 96(2)(a): MMP of 1 year
  • Weapons trafficking (excluding firearms and ammunition)
    • Subsection 99(3): MMP of 1 year
  • Possession for purpose of weapons trafficking (excluding firearms and ammunition)
    • Subsection 100(3): MMP of 1 year
  • Importing or exporting knowing it is unauthorized
    • Subsection 103(2.1): MMP of 1 year
  • Discharging firearm with intent
    • Paragraph 244(2)(b): MMP of 4 years
  • Discharging firearm — recklessness
    • Paragraph 244.2(3)(b): MMP of 4 years
  • Robbery with a firearm
    • Paragraph 344(1)(a.1): MMP of 4 years
  • Extortion with a firearm
    • Paragraph 346(1.1)(a.1): MMP of 4 years
  • 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)

  NOTE: Consistent with the Government’s related commitment to address the trafficking and smuggling of firearms in Canada and gang-related violence, MMPs would be maintained in the Criminal Code for the following offences:

  • Weapons trafficking
    • Subsection 99(2): MMP of 3 years (first offence) or 5 years (subsequent offences)
  • Possession for the purpose of weapons trafficking
    • Subsection 100(2): MMP of 3 years (first offence) or 5 years (subsequent offences)
  • Making automatic firearm
    • Subsection 102(2): MMP of 1 year
  • Importing or exporting knowing it is unauthorized
    • Subsection 103(2): MMP of 3 years (first offence) or 5 years (subsequent offences)
  • Causing death by criminal negligence, use of firearm
    • Subsection 220(a): MMP of 4 years
  • Manslaughter, use of a firearm
    • Subsection 236(a): MMP of 4 years
  • Attempted murder, use of a firearm
    • Paragraph 239(1)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
    • Paragraph 239(1)(a.1): MMP of 4 years in any other case (involving non-restricted firearms)
  • Discharging firearm with intent
    • Paragraph 244(2)(a): MMP of 5 years (first offence) and 7 year (subsequent offences) where firearm is restricted or prohibited or where the offence is committed in connection with a criminal organization
  • Discharging firearm—recklessness
    • Paragraph 244.2(3)(a): MMP of 5 years (first offence) and 7 year (subsequent offences) where firearm is restricted or prohibited or where the offence is committed in connection with a criminal organization
  • Sexual assault, use of firearm
    • Paragraph 272(2)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
    • Paragraph 272(2)(a.1): MMP of 4 years in any other case (involving non-restricted firearms)
  • Aggravated sexual assault, use of a firearm
    • Paragraph 273(2)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
    • Paragraph 273(2)(a.1): MMP of 4 years in any other case (involving non-restricted firearms)
  • Kidnapping, use of a firearm
    • Paragraph 279(1.1)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
    • Paragraph 279(1.1)(a.1): MMP of 4 years in any other case (involving non-restricted firearms)
  • Hostage taking, use of a firearm
    • Paragraph 279.1(2)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
    • Paragraph 279.1(2)(a.1): MMP of 4 years in any other case (involving non-restricted firearms)
  • Robbery with firearm
    • Paragraph 344(1)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
  • Extortion with a firearm
    • Paragraph 346(1.1)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization

  Controlled Drugs and Substances Act

  To address the overincarceration rate of Indigenous peoples as well as Black Canadians and members of marginalized communities, MMPs would be repealed for all the offences in the CDSA:

  • Trafficking or possession for the purpose of trafficking (two separate offences)
    • Subparagraph 5(3)(a)(i): MMP of 1 year; Subparagraph 5(3)(a)(ii) – MMP of 2 years
  • Importing and exporting or possession for the purpose of exporting (two separate offences)
    • Paragraph 6(3)(a): MMP of 1 year; Paragraph 6(3)(a.1) – MMP of 2 years
  • Production of substance Schedule I or II (two offence)
    • Paragraph 7(2)(a): MMP of 3 years and 2 years; Subparagraph 7(2)(a.1)(i) and (ii) – MMPs of 1 year and 18 months

  Related product: Mandatory Minimum Penalties Struck Down by the Courts

• Bill C-5: Promoting Health Responses to Simple Drug Possession

  Social, economic, cultural, institutional and historical inequities contribute to the overrepresentation of Indigenous peoples, Black Canadians and members of marginalized populations, including those living with substance use and mental health challenges, in the criminal justice system.

  On December 7, 2021, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, introduced proposed amendments to the Criminal Code and the Controlled Drugs and Substances Act (CDSA) to ensure that responses to criminal offences are fair and effective, while ensuring that public safety is maintained. These reforms were initially introduced in the second session of the 43^rd Parliament.

  The amendments to the CDSA support the Government’s commitment to address the opioid crisis. They would provide space to treat simple drug possession as a health issue, rather than as a criminal one, by requiring police and prosecutors to consider diverting people to treatment programs or other supportive services, instead of charging and prosecuting simple drug possession offences.

  More specifically, this bill would:

  • emphasize treatment programs: require police and prosecutors to consider alternative measures—including diverting individuals to treatment programs, giving a warning or taking no further action—instead of laying charges or prosecuting individuals for simple possession of an illegal drug
  • provide a declaration of principles to guide police and prosecutors to exercise their discretion fairly and effectively

  If enacted, these measures would help ensure that those living with mental health or substance use challenges are given the help they need instead of being stigmatized and punished by the criminal justice system.

  Find out more about the Government’s response to Canada’s opioid crisis.

• Mandatory Minimum Penalties and the Courts

  In support of the Government’s commitment to reintroduce former Bill C-22 within the first 100 days of its mandate, on December 7, 2021, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, introduced Bill C-5, which would amend the Criminal Code and the Controlled Drugs and Substances Act. One objective of this bill is to repeal mandatory minimum penalties (MMPs) for certain offences, including drug offences, which have not deterred crime and have resulted in the overincarceration of Indigenous peoples, as well as Black Canadians and members of marginalized communities.

  These proposed amendments are an important step towards addressing systemic racism and discrimination in the justice system, while creating more effective, evidence-based policies to keep communities safe and reduce re-offending. Where an offence is punishable by an MMP, judges are required to impose a sentence of imprisonment equal to or longer than the MMP for that offence. This is true even in cases where the judge deems that imprisonment would not be appropriate given the circumstances of the case before them.

  Charter challenges to MMPs

  More than 210 challenges to the constitutionality of MMPs

  MMPs continue to be the subject of many Charter challenges in courts across Canada.

  As of December 3, 2021, the Department of Justice Canada was tracking 217 Charter challenges to MMPs. This represents a little over a third (34%) of all Charter challenges to the Criminal Code that are being tracked by the Department. For example:

  • There are 24 challenges—5 at the appellate court level and 198 at the trial court level—to MMPs for firearms offences
  • There are 2 challenges—2 at the trial court level—to MMPs for drug offences, including trafficking, import/export and production

  Success rates of Charter challenges

  Of all Charter challenges to MMPs tracked by Justice Canada in the last decade:

  • 69% of the constitutional challenges to MMPs for drug offences were successful
  • 48% of the constitutional challenges to MMPs for firearms offences were successful

  MMPs struck down by the Supreme Court of Canada

  In addition to the many cases in provincial appellate and trial courts, the Supreme Court of Canada (SCC) has struck down certain drug and firearms MMPs as unconstitutional over the past decade. This includes the MMPs for the first time offence of unlawfully possessing a loaded or easily loaded prohibited or restricted firearm contrary to section 95 of the Criminal Code, which carries a term of imprisonment of 3 years, and for the 5-year MMP for repeat offenders. The SCC also struck down the 1-year MMP for an offender with a previous conviction on the offence of possession of drugs for the purpose of trafficking.

  Related product: Bill C-5: Mandatory Minimum Penalties to be Repealed

• Addressing Systemic Racism: Budget 2021 and Fall Economic Statement 2020 support for Criminal Justice Reform

  Budget 2021

  Indigenous Justice Engagement and Reconciliation

  Budget 2021 proposed to provide $74.8 million over three years, starting in 2021-22, to improve access to justice for Indigenous peoples and support the development of an Indigenous Justice Strategy to address systemic discrimination and the overrepresentation of Indigenous peoples in the justice system. Of this amount, $24.2 million over three years would go to support engagement with Indigenous communities and organizations on the development of legislation and initiatives that address systemic barriers in the criminal justice system, including collaboration on an Indigenous Justice Strategy. This is a critical part of reconciliation.

  A further investment of $31.5 million over two years would support the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, including through broad and distinctions-based consultation and cooperation with Indigenous peoples.

  Additionally, the Budget provided $27.1 million over three years to help Indigenous families navigate the family justice system and access community-based family mediation services.

  Re-establishing of the Law Commission of Canada

  Independent expertise is critical if Canada’s legal system is to be responsive to the complex challenges of the day, such as systemic racism in the justice system, legal issues around climate change, establishing a new relationship with Indigenous peoples, and rapid technological shifts in the world. This is why Budget 2021 provided $18 million over five years, starting in 2021-22, and $4 million ongoing to revive the Law Commission of Canada.

  Justice Data Modernization

  To modernize Canada’s justice system, support evidence-based policies, and ensure accountability within the criminal justice system, the Government needs to update and fill gaps in its collection and use of data. Under Budget 2021 Justice Canada and Statistics Canada received $6.7 million over five years, starting in 2021-22, and $1.4 million ongoing, to improve the collection and use of disaggregated data. This is part of ongoing efforts to address the overrepresentation of Indigenous peoples and racialized groups in the justice system.

  Youth Justice Diversion Programming

  Budget 2021 provided $216.4 million over five years, starting in 2021-22, and $43.3 million ongoing for the Youth Justice Services Funding Program to increase funding to the provinces and territories in support of diversion programming and to help reduce the overrepresentation of Indigenous peoples, Black Canadians, and other racialized groups in the youth justice system. By diverting youth to the right services at the right time and addressing the root causes of crime, this measure will help reduce the crime rate and promote better outcomes for young people and their communities.

  Racialized Communities Legal Support Initiative and Immigration and Refugee Legal Aid

  To help build a strong justice system with fair outcomes for all, the government is making investments to support access to legal information and advice for racialized Canadians and asylum seekers.

  As part of this commitment, Budget 2021 provided $21.5 million over five years for a Racialized Communities Legal Support Initiative. This will support organizations that provide free public legal education and information as well as organizations that provide legal services and advice to racialized communities. An anticipatory call for proposals for this funding was launched on November 15, 2021.

  As well, Budget 2021 made available $26.8 million to enable participating provinces to maintain immigration and refugee legal aid support for asylum seekers, while protecting the efficiency and integrity of the asylum system.

  Fall Economic Statement 2020

  The Fall Economic Statement (FES) announced several important investments to address systemic racism in the criminal justice system. The FES funding will provide much needed support for organizations and programs that help address the inequities faced by Indigenous peoples, Black and racialized Canadians in the criminal justice, with the goal of creating a fair and more effective criminal justice system for all. These initiatives will help support the proposed legislation to amend the Criminal Code and the Controlled Drugs and Substances Act, Bill C-5.

  Support for Gladue Principles and reporting

  The Government of Canada is investing $49.3 million over five years and $9.7 million ongoing to support the preparation of Gladue reports, and the implementation and integration of Gladue report recommendation and principles into the mainstream criminal justice system practices. This will help to address systemic barriers for Indigenous peoples in the criminal justice system by ensuring the background and systemic factors that bring Indigenous peoples into contact with the justice system are taken into account at sentencing, and to help inform reasonable alternatives to sentencing for Indigenous accused.

  Support for Impact of Race and Culture Assessments (IRCAs)

  The Government of Canada’s investment of $6.6 million over five years, and $1.6 million of ongoing funding, will support the implementation of IRCAs, which assist sentencing judges in considering the disadvantages and systemic racism that contributed to racialized Canadians’ interactions with the criminal justice system.

  Support to Community Justice Centres (CJCs)

  Community Justice Centres are an innovative approach for moving justice out of the traditional courtroom, and into a community setting. CJCs bring together justice, health, employment, education and social services to collectively address the root cause of crime, break the cycle of offending, and improve public safety and community well-being. Through the integration of culturally appropriate services, CJCs can help decrease the overrepresentation of Indigenous peoples and Black Canadians in the criminal justice system, and provide solutions to systemic issues. The Government of Canada investment of $28.6 million over five years will support Community Justice Centres pilot projects in British Columbia, Manitoba and Ontario as well as consultations to expand the Community Justice Centre concept to other provinces and territories.

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