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A first step in repealing mandatory minimums

After six years and in its second mandate, the Trudeau government has finally acted on its promise to pursue sentencing reform.

Prison sentence

Justice Minister David Lametti tabled Bill C-22 on Thursday, a short bill that nevertheless makes some broad changes.

The government heralded the amendments to the Criminal Code and Controlled Drugs and Substances Act as a “critical” step towards “addressing systemic racism and discrimination in the justice system while keeping Canadians safe.”

It also pointed to the knock-on effect they will have on preventing resource-intensive constitutional challenges and significantly decreasing small-scale drug prosecutions.

All told, it is the most significant pieces of justice legislation introduced to date by the Trudeau government. But will it be enough?

Mandatory minimums

Bill C-22 axes more than a dozen mandatory minimum penalties, roughly a sixth of the 72 inventoried on the books. This week, the CBA adopted a resolution urging the federal government to eliminate mandatory minimum sentences for all offences other than murder.

The new bill repeals the three-year minimum penalty under s.99 of the Criminal Code, on weapons trafficking -- struck down by courts in Ontario and Quebec. A four-year mandatory minimum for reckless discharge of a firearm, is also about to be removed, having been declared unconstitutional in three provinces and territories.

“Never before has a government repealed any mandatory minimums,” says Jody Berkes, chair of the Canadian Bar Association’s Criminal Justice Section and a defence lawyer in Toronto who was the mover of the CBA resolution. “It was a one-way street.”

Bill C-22 only repeals those mandatory minimums, justice officials said, which had particularly contributed to the over-incarceration of Black and Indigenous peoples. A raft of other automatic sentences, including many which have been declared unconstitutional by some lower courts, will remain on the books.

As CBA National reported earlier this month, there is a patchwork of mandatory minimum sentences across Canada, as a result of some being declared unconstitutional in one province but not another. Scores of other cases are still winding their way through the courts.

“One of the truly negative outcomes of the mandatory minimum penalties is the clogging up of the court system,” Minister Lametti said. When it comes to those still on the books but are subject to challenge, Lametti said, “we’ll continue to watch how this plays out.”

Berkes acknowledges that there are other mandatory minimum penalties that should probably be repealed, and underscores that the “epidemic” of over-incarceration of racialized people requires action.

“The house is on fire, this is the way to douse out the flames and deal with the most pernicious problems first,” he says, adding “there are still structural problems with the house.”

The bill is more straightforward when it comes to drug crimes, however: It simply abolishes every mandatory minimum sentence found in the CDSA.

Conditional release

One simple, but significant, change in C-22 comes with respect to conditional sentences.

Jean Chrétien’s Liberal government originally introduced conditional sentences in 1996, with an eye to addressing the then-growing problem of Indigenous over-incarceration. Their impact was stymied by changes introduced in 2007 by the Conservative government of the day. Their amendments introduced a laundry list of offences for which offenders could not get a conditional sentence.

C-22 repeals that list, opening a pathway for courts to order offenders to serve their time in the community instead of a federal or provincial prison. Once the bill becomes law, courts will be able to hand conditional sentences so long as the offender is not a threat to the community, and is not facing charges for terrorism, organized crime, advocating genocide, torture, or muder.

Berkes calls that change “significant.” Under the Conservatives’ a conviction of theft over $5,000 were among the offenses precluded from conditional sentencing. “That’s the type of offence that the condition sentence of imprisonment was meant to deal with,” he noted. Once C-22 becomes law, someone convicted of serious theft will have the opportunity to serve their sentence in the community and work to pay back the stolen amount, he notes.

The amendments will likely render the R. v. Sharma appeal to the Supreme Court moot. The case was granted leave  after the Ontario Court of Appeal struck down limits on conditional sentences on grounds they.deprive the court of an important means to redress systemic discrimination against Aboriginal people...” That same court has  declared unconstitutional many other of the Tories’ changes to conditional sentences.

Berkes says the benefits are clear. “It doesn’t tear families apart,” he said, adding: “It saves the taxpayers hundreds of thousands of dollars.”

Tony Paisana, a partner at Peck and Company, welcomed the changes as “big news,” calling the conditional sentencing changes “meaningful reform that will have a direct and positive impact on marginalized communities.”

But as Chris Rudnicki, partner at Rusonik, O'Connor, Robbins, Ross & Angelini, also noted on Twitter: “just because it is available does not mean it will be imposed,” noting that the decision to seek a conditional sentence still rests with the sentencing judge. And, as Minister Lametti noted Thursday afternoon, community programs that sometimes enable those conditional releases still lack funding to allow them to scale up to handle many diverted cases.

Even so, Rudnicki says the core changes are significant. “A community sanction will now be available for dozens of offences where it wasn't before.”

Diversion and decriminalization

While calls have mounted steadily on the federal government to drop the criminal prohibitions for simple drug possession, the Trudeau government has declined to go that route.

Instead, Lametti opted to bake in diversion programs to the CDSA, allowing police officers to issue warnings instead of making arrests; and requiring Crowns and courts to prioritize alternatives to incarceration for cases of personal drug use.

While the principles of the new amendment include statements like “problematic substance use should be addressed primarily as a health and social issue,” it still reserves a central role for the criminal justice system when it comes to drug crimes.

“Everyone realizes that what we need to do is decriminalize drugs,” Berkes says. Even if this is not clear-cut decriminalization, he says the new measures are a relatively efficient way to reach a similar end. While the new law still leaves ample discretion to pursue criminal charges for drug possession, Berkes expects the significance won’t be lost on those in the justice system.

“I actually do think that the Crowns will take heed of this,” Berkes says.

Real reform, or hot air?

If there is broad agreement that sentencing reform was long overdue, the sense from criminal lawyers that, on the whole, C-22 is “the most aggressive stance any government has taken to date to try and address the pernicious effects of incarcerating BIPOC  [Black, Indigenous, people of colour,” as Bekes says.

Michael Spratt, a longtime critic of Ottawa’s justice policy, lauded the bill overall: “This is progress,” he wrote on Twitter. Emilie Taman, co-host with Spratt of The Docket podcast, echoed the sentiment: “These changes should have been brought in a long time ago, there remains huge amounts of work to be done, but this is a good start and we need to acknowledge that.”

Grading individual parts of the bill, Spratt tweeted: “A+ on conditional sentences, B on MMS, C- on drug policy (other than MMS).”