This past Thursday, Department of Justice Canada announced Bill C-22, which, if enacted, would implement several amendments to the federal criminal code.
These amendments include:
- Removing mandatory minimum sentencing on some offences
- Increasing availability of Conditional sentences
- Encouraging non-prosecutorial options for drug possession
The removal of mandatory minimum sentencing would take place for 14 offences:
- Using a firearm while committing a crime
- Using an imitation firearm while committing a crime
- Possession of firearm known to be unauthorized
- Possession of weapon known to be unauthorized
- Possession of prohibited/restricted firearm with ammunition
- Possession of weapon obtained through committing a crime
- Weapons trafficking (excluding firearms and ammunition)
- Possession to traffic weapons (excluding firearms & ammunition)
- Importing or exporting knowing it is unauthorized
- Discharging firearm with intent
- Discharging firearm — recklessness
- Robbery with a firearm
- Extortion with a firearm
- Selling tobacco products and raw leaf tobacco
The bill also plans to abolish all drug-related mandatory minimum sentencing, according to Justin Ling with The Canadian Bar Association’s The National.
Regarding conditional sentencing, judges could choose to let someone serve their sentence in the community rather than in prison. A community sentence could include house arrest, curfew, mandatory counselling, or mandatory treatment for substance abuse. This would be available in cases where imprisonment is under 2 years and a community sentence wouldn’t pose a threat to public safety.
Finally, the non-prosecutorial options component to the new bill would reposition drug possession as a health issue rather than a criminal one, by requiring cops and prosecutors to consider alternative measures for simple possession, instead of charges or prosecution. These measures could include diversion into addiction treatment programs, giving a warning, or taking no further action. As well, the bill would provide a declaration of principles to guide cops and prosecutors in exercising discretion.
Alberta’s justice minister, Kaycee Madu, didn’t react too positively to the proposed amendments:
Ottawa’s draft law removes mandatory prison sentences for serious crimes such as illegal possession of a loaded handgun, robbery with a firearm, and possession of a firearm obtained through crime.
Removing tough, mandatory penalties for actual gun crimes undermines the very minority communities that are so often victimized by brazen gun violence. I also find it disingenuous for Ottawa to exploit a genuine issue like systemic racism to push through their soft-on-crime bills.
His response is problematic.
While it’s true that the federal government is removing mandatory minimum sentences on these crimes, they’re actually increasing the maximum sentence on several of them. For example, they plan to increase the maximum sentence from 10 years to 14 years for the following gun-related crimes:
- Possessing a loaded prohibited/restricted gun
- Possessing an unloaded prohibited/restricted gun while also possessing ammunition for that gun
- Possession of weapon obtained through committing a crime
- Illegal gun manufacturing
- Illegal gun trafficking
- Possession of a gun with intent to traffic it
- Illegal importation of guns
Plus, time after time, mandatory sentencing has lost when it’s been challenged in court.
Nathan Baker, a criminal defence lawyer in Ontario, recently wrote for The Lawyer’s Daily that mandatory sentences “generally only work to tie judges’ hands and highlight the grossly disproportionate results that can occur in certain cases.”
And confirming what I stated above, Baker goes on to say that
The elimination of mandatory minimum sentences does not lower the available sentence. Instead, it highlights that there are reasonable hypotheticals, and actual cases that eerily mirror these reasonable hypotheticals, where a mandatory minimum jail sentence is not appropriate.
As of this month, mandatory sentences are the subject of over 260 Charter challenges in Canadian courts. And over the past decade, 70% of the Charter challenges for drug offences were successful, as were about half of the firearms challenges.
Plus, the federal supreme court itself has struck down mandatory sentencing as unconstitutional, for cases related to both firearm and drug offences.
According to the federal announcement, these minimum sentences have not deterred crime, but have instead resulted in disproportionate outcomes for members of marginalized communities, including Indigenous people and Black Canadians.
But that misinformation aside, let’s focus on the part of Madu’s statement where he brings up the “undermining of the very minority communities that are so often victimized by brazen gun violence”.
I don’t know whether in reading the loss of the minimum sentences Madu simply failed to read anything else or whether he ignored the report that accompanied the government announcement and that specifically addresses the minority communities he’s citing.
Here’s the thing though.
Black and Indigenous people are policed at higher rates in Canada (see here, here, here, and here, for example). That means they’re going to be arrested more often than White and non-Indigenous people, more likely to be convicted, and thus more likely to be the recipients of the mandatory minimum sentencing Madu is bemoaning the loss of. Plus, more arrests and convictions mean they end up comprising a disproportionate component of the imprisoned population. And once they’re in prison, they’re treated worse and are more likely to be rearrested once on the outside. Which is a problem, since some of those minimum sentences were based on recidivism.
As well, data shows that racialized people are not only arrested and convicted at higher rates, they’re “more likely to be admitted to federal custody for an offence punishable by” a mandatory sentence. The mandatory sentences that Madu’s defending are themselves causing harm to the minority communities he expressed concern about.
Raphael Tachie, the president of the Canadian Association of Black Lawyers, had this to say about the new amendments:
“I’m very excited about what I’m reading about the proposed reforms. . . . Today’s a day for a win. I want to congratulate and recognize the government. Today is an important day.”
However, he says this is only the start:
That is just one measure and one part of the dial. The other part includes hiring more diverse talent and giving training around implicit bias and making sure that your police force, your corrections community are all operating with an awareness of how bias works and how we are all susceptible to it and we all have to have to deal with it and compensate for it.
Other criminal justice reformers agree.
For example, Harsha Walia, the executive director of the BC Civil Liberties Association, points out that many of the 72 minimum mandatory sentences still remain:
Zoë Dodd, co-organizer with Toronto Overdose Prevention Society, is worried that these measure won’t actually reduce the overpolicing of non-White communities.
Justin Piché, an associate professor in University of Ottawa’s criminology department, is worried that conditional sentencing, such as the drug treatment courts announced in Alberta last year, would create a pipeline to criminalization.
As El Jones with the East Coast Prison Justice Society says, “We know that every time that there’s a punishment regime, Black people, Indigenous people, people who live in poverty, queer people—people who are outside the idea of the “norm”—will always be on the wrong side in the harsh appointment of that penalty.”
Michael Spratt, a partner with the Ottawa-based criminal law firm Abergel Golstein and a longtime critic of the federal justice policy, gave the new bill an A+ on conditional sentences, a B on mandatory minimum sentences, and a C- on drug policy.