In December 2021, the Federal Government introduced “Bill C-5: Mandatory Minimum Penalties to be repealed” (Bill C-5) in the House of Commons that would repeal mandatory minimum penalties for drug offences and some gun-related crimes. Bill C-5 seeks to address the “systemic racism in Canada’s criminal justice system.” As the government’s Backgrounder states:

“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 violence and serious crimes.”

Bill C-5 proposes amendments to the Criminal Code and Controlled Drug and Substances Act.

According to the government, the objective of Bill C-5 is to maintain public safety while ensuring that responses to criminal conduct are fairer and more effective. The Government believes the proposed amendments are an important step in addressing systemic issues related to existing sentencing policies.

The proposed changes to mandatory minimum penalties include the repeal of the following:

  • 14 Criminal Code offences
  • All six mandatory minimum penalties in the Controlled Drug and Substances Act

Repeal of Mandatory Minimum Penalties for Criminal Code Offences

Pursuant to the Bill, the following 14 mandatory minimum penalties for Criminal Code offences would be repealed:

Offence

Mandatory Minimum Penalty

Using a firearm or imitation firearm in commission of offence (two separate offences)

1 year (first offence) and 3 years (second and subsequent offence)

Possession of firearm or weapon knowing its possession is unauthorized (two separate offences)

1 year (second offence) and 2 years less a day (third and subsequent offence)

Possession of prohibited or restricted firearm with ammunition

3 years (first offence) and 5 years (second and subsequent offence)

Possession of weapon obtained by commission of offence

1 year

Weapons trafficking (excluding firearms and ammunition)

1 year

Possession for purpose of weapons trafficking (excluding firearms and ammunition)

1 year

Importing or exporting knowing it is unauthorized

1 year

Discharging firearm with intent

4 years

Discharging firearm — recklessness 

4 years

Robbery with a firearm

4 years

Selling, etc. of tobacco products and raw leaf tobacco

90 days (second offence), mandatory minimum penalty of 180 days (third offence) and mandatory minimum penalty of 2 years less a day (fourth and subsequent offence)

The reforms to mandatory minimum penalties would only apply to these particular Criminal Code 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.

Mandatory minimum penalties would still be retained for serious convictions under the Criminal Code, including the following:

  • Weapons trafficking 
  • Possession for the purpose of weapons trafficking 
  • Making an automatic firearm 
  • Importing or exporting knowing it is unauthorized 
  • Causing death by criminal negligence, use of firearm 
  • Manslaughter, use of a firearm 
  • Attempted murder, use of a firearm 
  • Discharging firearm with intent  
  • Discharging firearm—recklessness 
  • Sexual assault, use of firearm 
  • Aggravated sexual assault, use of a firearm 
  • Kidnapping, use of a firearm 
  • Hostage taking, use of a firearm 
  • Robbery with firearm 
  • Extortion with a firearm 

The upholding of these mandatory minimum penalties is consistent with the government’s related commitment to addressing the trafficking and smuggling of firearms in Canada and gang-related violence.

Repeal of Mandatory Minimum Penalties for Controlled Drug and Substances Offences

As previously noted, the mandatory minimum penalties for all Controlled Drug and Substances offences would be repealed as follows:

Offence

Mandatory Minimum Penalty

Trafficking or possession for the purpose of trafficking (two separate offences) 

1 year and 2 years respectively

Importing and exporting or possession for the purpose of exporting (two separate offences) 

1 year and 2 years respectively

Production of substance Schedule I or II (two offences)

3 years and 2 years and 1 year and 18 months

Addressing Systemic Racism in Sentencing Laws

The Government states that sentencing laws have focused on punishment through imprisonment have disproportionately affected Indigenous peoples, Black Canadians, and members of other marginalized communities. In addition to failing to deter crime, mandatory minimum penalties have also resulted in longer and more complex trials, including an increase in successful Charter challenges and a decrease in guilty pleas. The government notes that this has compounded the impact for victims, who are more often required to testify.

The repeal of mandatory minimum penalties would target the over-incarceration of Indigenous peoples, Black Canadians, and members of other marginalized communities.

Promoting More Appropriate Sentences Specific to Each Case

Bill C-5 also aims to promote judicial discretion by providing justices with greater flexibility in sentencing, thereby ensuring that a person who is found guilty is sentenced appropriately. According to the government, 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. Sentencing judges would still consider an offender’s risk to public safety but would also consider the specific facts of the case, the circumstances particular to the offender, and any systemic racism the offender may have experienced.

Bill C-5 would further allow for greater use of conditional sentences for offenders who do not pose a threat to public safety. Examples of conditional sentences would include house arrest, counselling, or treatment. It also would require police and prosecutors to consider alternative measures for cases of simple drug possession, such as diverting individuals to treatment programs, instead of laying charges or prosecuting.

Contact Hicks Adams LLP in Toronto for Assistance with Sentencing

The criminal defence lawyers at Hicks Adams LLP will continue to monitor Bill C-5 and its movement through the legislature. As one of the largest criminal law firms in Canada, we are adept at navigating the criminal justice system and are skilled advocates for our clients. To discuss your case and how we may assist you, call us at 416-975-1700 or contact us online to schedule a confidential consultation.