Tansi Nîtôtemtik,
Mandatory minimum sentences have disproportionately impacted Indigenous peoples. On November 17, 2022, Bill c-5, “An Act to amend the Criminal Code and the Controlled Drugs and Substances Act” received Royal Assent and became law. [1] The purpose of this bill is “to address the over-incarceration rate of Indigenous peoples as well as Black Canadians and members of marginalized communities”. [2] Bill c-5 repeals mandatory minimum sentences for fourteen offences in the Criminal Code, and all six mandatory minimum sentences found in the Controlled Drugs and Substances Act. [3]
In Canada, mandatory minimum penalties, also known as mandatory minimum sentences, are the minimum punishment that judges can give for certain crimes. Judges cannot give a sentence lower than the mandatory minimum, even if there are compelling reasons to do so. The punishment does not have to be imprisonment, and can include fines, probation or other penal measures.
Mandatory minimum penalties were broadly introduced in 1995, with the goals of deterring crime, helping to create a more just society, and providing guidelines to help the justice system operate more efficiently and with consistency. [4] However, research has continually shown that harsher punishments do not actually deter crime, and that mandatory minimum penalties disproportionately affect Indigenous individuals. [5]
Indigenous women continue to be one of the most over-represented groups of incarcerated individuals, with 50% of the women’s federal prison population being Indigenous women as of April 28, 2022. [6] Over-incarceration is also an issue for Indigenous men, whose rate of incarceration is eight times that of non-Indigenous men. [7] In 2017, 26% of Indigenous offenders in federal prison had been convicted of an offence punishable by a mandatory minimum penalty. [8]
During debates on Bill c-5, members of Parliament highlighted the intention to “address the systemic inequities within the criminal justice system” by focusing on fourteen offences that saw disproportionate numbers of Indigenous and Black offenders incarcerated due to mandatory minimum sentences. [9]
This amendment works to advance two Calls to Action:
Call to Action 30- “We call upon federal, provincial, and territorial governments to commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade, and to issue detailed annual reports that monitor and evaluate progress in doing so.” [10]
Call to Action 32- “We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.” [11]
While this bill is a step toward reconciliation, it stops short of truly fulfilling the Call to Action. True reconciliation would see the elimination of all mandatory minimum sentences.
Additionally, Parliament needs to take further steps to allow judges to use discretion to impose conditional sentences whenever appropriate. Conditional sentences allow offenders to serve a sentence in the community, instead of being incarcerated in jail or prison.
Royal Assent to Bill c-5 comes on the coattails of the Supreme Court of Canada decision in R v Sharma. [12] In this case, Cheyenne Sharma, a young Indigenous woman, was denied a conditional sentence. She was charged with importing two kilograms of cocaine, a crime that carried a maximum sentence of ten years, and was therefore ineligible for a conditional sentence. [13] The Ontario Court of Appeal found that barring conditional sentences for only certain offences was unconstitutional and disproportionately impacts Indigenous people. [14]
The Supreme Court of Canada overturned the Ontario Court of Appeal with a narrow 5-4 majority and found that barring conditional sentences for some offences is justified despite the prejudicial effect it has on Indigenous people. Section 718.2 (e) of the Criminal Code requires judges to consider the circumstances of Aboriginal offenders. [15] Upholding the restriction on conditional sentences for some crimes impedes judges’ ability to consider these circumstances.
Conditional sentences can be beneficial to offenders as they allow people to continue caring for children, continue employment, and allow them to stay in their communities. Conditional sentences are especially important for Northern communities. For most Northern communities, jails and prisons are only located in major cities, which means offenders may be hundreds or thousands of kilometres away from their community.
The amendment brought on by Bill c-5, and the decision in Sharma, show that the justice system is still not fully committed to meaningful reconciliation.
We call on the Federal Government to take further steps toward reconciliation by continuing to revisit sentencing requirements in the Criminal Code. All mandatory minimum penalties should be eliminated. Conditional sentences should be made available for all crimes, regardless of whether they have maximum penalties that would disallow conditional sentences under current legislation. These two steps will inevitably lead to a reduction in the overall population of Indigenous individuals in the criminal justice system.
Until next time,
Team ReconciliAction YEG
[1] An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, SC 2022, c 5.
[2] Department of Justice Canada, “Bill C-5: Mandatory Minimum Penalties to be repealed”, Government of Canada (last updated 7 December 2021), online: <www.canada.ca/en/department-justice/news/2021/12/mandatory-minimum-penalties-to-be-repealed.html>.
[3] Ibid.
[4] William Jaksa, “What are mandatory minimum sentences in Canada, and do I need to serve the entire term?”, (26 March 2021), online: </www.toronto-criminal-lawyer.co/mandatory-minimum-sentences-canada/>.
[5] Jacques Gallant, “Too many Black and Indigenous people are in prison. Researchers say mandatory minimum sentences are part of the problem”, Toronto Star (4 March 2021), online: <www.thestar.com/politics/federal/2021/03/04/too-many-black-and-indigenous-people-are-in-prison-researchers-say-mandatory-minimum-sentences-are-part-of-the-problem.html>.
[6] Office of the Correctional Investigator, “Annual Report 2021-2022”, Government of Canada (30 June 2022), online: <www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20212022-eng.aspx>.
[7] Department of Justice, “Overrepresentation of Indigenous People in the Canadian Criminal Justice System: Causes and Responses”, Government of Canada (last updated 9 April 2020), online: <www.justice.gc.ca/eng/rp-pr/jr/oip-cjs/p3.html>.
[8] Department of Justice, “The Impact of Mandatory Minimum Penalties on Indigenous, Black and Other Visible Minorities”, Government of Canada (15 March 2018), online: <www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/oct02.html>.
[9] “Bill C-5: An Act to amend the Criminal Code and the Controlled Drugs and Substances Act”, 1st reading, House of Commons Debates, 44-1, No 16 (13 December 2021) at 1115 (Gary Anandasangaree).
[10] Truth and Reconciliation Commission of Canada: Calls to Action (Ottawa: Public Works and Government Services Canada, 2015) at 3.
[11] Ibid.
[12] R. v. Sharma, 2022 SCC 39.
[13] CBC, “Supreme Court to examine limits on conditional sentencing” (14 January 2021), online: <www.cbc.ca/news/politics/supreme-court-conditional-sentencing-1.5873442>.
[14] CBC, “Law barring conditional sentences for some offences is unconstitutional, court rules” (24 July 2020), online: <www.cbc.ca/news/politics/gladue-sentence-unconstitutional-1.5662187>.
[15] Criminal Code, RSC 1985, c. C-46.