The federal government introduced a bill in the House of Commons last Tuesday that would repeal mandatory minimum penalties for drug offences and some gun-related crimes.
It would allow a judge to exercise discretion in imposing sentences that relate to the facts of the case, including considerations of the individual’s experience with systemic racism and whether they pose a risk to public safety.
The legislation would allow for greater use of conditional sentences, including house arrest, counselling or treatment, for those who do not threaten public safety.
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.
These reforms have been long called for by advocates, who have argued that current measures perpetuate systemic racism in Canada’s justice system, leading to disproportionately higher rates of imprisonment for Indigenous peoples, Black Canadians, and those struggling with substance use and addiction.
The bill revives legislation previously tabled in February that did not receive parliamentary approval before Prime Minister Justin Trudeau called a federal election in August.
Justice Minister David Lametti said in a news conference that the justice policy of the former Conservative government, which greatly expanded the use of mandatory minimum sentences, “simply did not work.”
“The best evidence, sadly, is in our prison populations,” Lametti said.
Indigenous adults represent five per cent of the Canadian population but 30 per cent of federal prisoners, double what it was 20 years ago, and the figure is even higher in some provinces, he said.
Black Canadians account for three per cent of the population but 7.2 per cent of federal offenders, added Lametti. “This record is shameful.”
Mandatory minimum sentences create a rigid, one-size-fits-all approach that make it impossible for judges to take into account mitigating factors and to impose a sentence that fits the crime, he said.
The justice minister stressed that the legislation is not aimed at “hardened criminals” but first-time, low-risk offenders.
“Think about your own kids. Perhaps they got into trouble at some point with the law. I bet you would want to give them the benefit of the doubt or a second chance if they messed up. Well, it is a lot harder to get a second chance the way things are now,” Lametti said.
“And that’s particularly true if you are a young person who happens to be Indigenous or Black.”
Mandatory minimums would remain in place for serious convictions such as murder, some sexual offences including child sexual offences, impaired driving and severe firearm offences including those linked to organized crime, Lametti said.
He said judges will still be able to impose long sentences if they are necessary and the legislation would simply give back the possibility of imposing sentences that “reflect the crime.”
The broader discretion provided to judges in sentencing is a departure from the mandatory minimum sentences that were either added or increased during the years of Stephen Harper’s Conservative government.
In June 2020, the multi-party parliamentary Black caucus announced a call to action that demanded mandatory minimums be eliminated. Lametti was one of the signatories.
Conservative justice critic Rob Moore said in a statement that the bill was soft on crime and puts communities and victims at risk.
Moore said his party has concerns about the proposal for courts to have the discretion to sentence offenders to serve their sentence in the community instead of prison for certain offences, such as sexual assault, human trafficking and kidnapping.
He added that the Conservatives believe violent offences committed with firearms deserve mandatory prison time, as opposed to weakening firearm laws.
In a joint statement, NDP justice critic Randall Garrison and mental health and addictions critic Gord Johns said that while the bill is a good step, it does not come close to what is needed to remedy the over-incarceration of Indigenous and Black people in the justice system.
Garrison and Johns added that the Liberal government needs to take steps toward decriminalizing possession of illegal substances for personal use, and creating a comprehensive strategy to address the crisis of overdose-related deaths.