Last month, the federal government tabled Bill C-22, proposing several amendments to Canada’s criminal law and drug laws. The bill proposes removing mandatory minimums for all drug offences under the Controlled Drug and Substances Act (CDSA) and for some offences under the Criminal Code of Canada. The bill also expands the use of conditional sentences, and requires police and prosecutors to consider diversion measures and alternatives to criminal charges for simple drug possession offences.

When introducing the bill, Minister of Justice and Attorney General of Canada David Lametti acknowledged the systemic racism in Canada’s criminal legal system and that sentencing policies focused on imprisonment disproportionately affect Indigenous, Black and marginalized people. According to the government’s own statistics, Indigenous and Black people are more likely to be admitted to federal prisons for an offence punishable by a mandatory minimum penalty.

Ending All Mandatory Minimums in the Criminal Code

Bill C-22 is part of the current federal government’s efforts to reverse the tough-on-crime policies of the previous government. Before the Harper government came to power, 24 offences were subject to mandatory minimum sentences but, by 2015, that number had tripled. As a result, the proportion of Indigenous people imprisoned for an offence carrying a mandatory minimum sentence went up from 14 percent to 26 percent in one decade.

While Bill C-22 proposes to repeal about 14 dozen mandatory minimum penalties under the Criminal Code, it retains the rest. Many of the mandatory minimum penalties remaining on the books have already been declared unconstitutional by lower provincial courts Canada. This has created a patch-work regime where the application of a certain mandatory minimum is arbitrarily dependent on the province where an accused resides.

The BCCLA has advocated for mandatory minimums to be abolished for almost two decades. In 2014, we produced a comprehensive report on the harms of mandatory minimums. Mandatory minimums take away the judge’s ability to consider individual and proportionate factors during sentencing, or systemic factors such as the impacts of colonialism when sentencing Indigenous people. This flies in the face of section 718.2(e) of the Criminal Code and the Supreme Court of Canada’s direction in R v Gladue. Furthermore, mandatory minimums do not achieve their stated objective of deterrence and bring Canada closer to becoming a prison society that emphasizes incarceration over rehabilitation. As Michael Tonry’s scholarship in the U.S. details, mandatory minimums actually produce inconsistency and injustice. In R. v Nur, the Supreme Court of Canada concurred, stating that “empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes.”

Indeed, courts in Canada have also been dealing with the constitutionality of mandatory minimums, with over 160 constitutional challenges. The BCCLA intervened in several of these court cases, and we won in each case. We intervened at the Supreme Court of Canada in R v Nur and R v Charles in 2014, cases which led to the highest court striking down the mandatory minimum sentencing for offenses involving firearms. The BCCLA also intervened in R v Lloyd, where the Supreme Court of Canada found that a mandatory minimum sentence for a drug possession offense under the CDSA violated Charter section 12’s prohibition on cruel and unusual treatment or punishment.

The federal government must remove all mandatory minimum penalties from the Criminal Code. While a mandatory minimum of a life sentence for murder might seem reasonable, in fact, systemic barriers to justice means that Indigenous women are most significantly impacted by life sentences. Similarly, battered women who face murder charges for killing their partners in an act of self-defence will often plead guilty to a lesser charge of manslaughter, out of fear of a mandatory minimum sentence for a murder conviction. Prison law expert Kim Pate writes, “Mandatory minimums are often advertised as being ‘tough on crime.’ In reality, they are toughest on those who are already most marginalized and victimized.”

Expanding the Use of Conditional Sentences

One of the most significant aspects of Bill C-22 is the expansion of conditional sentences. Conditional sentences are a non-custodial measure first introduced in 1996 to allow people to serve their sentence in the community instead of in a federal or provincial prison. Bill C-22 repeals a list of offences in the Criminal Code that barred conditional sentences.

The proposed change in Bill C-22 comes on the heels of an important case. In R v Sharma, the Ontario Court of Appeal struck two provisions in the Criminal Code that denied Cheyenne Sharma, a young Indigenous woman, access to a conditional sentence as unconstitutional and discriminatory against Indigenous people. The Court found that limiting conditional sentences effectively restricted measures intended to address anti-Indigenous racism in the justice system.

Conditional sentences can also be important for permanent residents convicted of a crime who maybe at risk of loosing their immigration status in Canada; time served in community would not count as jail time in their immigration inadmissibility hearings.

However, while conditional sentences are alternatives to incarceration, they also widen the net of criminalization. A breach of a conditional sentence, including strict conditions of house arrest or drug/alcohol abstinence, can easily become a defacto revolving door to prison, especially for already oppressed communities with the least access to financial and social supports. While a seemingly better alternative to prison, conditional sentences actually retain the constant threat of state surveillance and incarceration.

Full Decriminalization of Simple Drug Possession

The third area of reform that Bill C-22 proposes is in drug policy. It is a positive step that Bill C-22 repeals mandatory minimums for all drug offences under the CDSA. According to federal government data, drug offences comprised 75% of all offences punishable by a mandatory minimum penalty for which people were admitted to federal prison.

However, Bill C-22 also does not fully decriminalize simple drug possession. It retains discretionary policing powers, including warnings, charges and criminal prosecutions. As the HIV Legal Network describes, “Bill C-22 still authorizes police officers to ‘warn’ people found in possession of drugs or to refer them to services, and police officers and prosecutors can still charge and prosecute people, after consideration of the bill’s principles. At the same time, the bill permits police officers to keep a record of such warnings to people in possession of drugs for personal use — an unnecessary, ongoing infringement of human rights.”

While the bill makes some effort to treat drug use as an issue of health and human rights, this retention of prosecutorial and police discretion and surveillance is unacceptable, especially since such discretion most targets Indigenous, Black, racialized, undocumented migrant, homeless, two spirit and trans drug users. Furthermore, the use of the criminal legal system to enforce diversion measures or treatment is counter to the principles of evidence-based, trauma-informed, voluntary treatment. 

The retention of a criminal law approach to drug use is unconscionable amid an epidemic of drug overdoses that has resulted in 20,000 deaths in Canada since 2016. According to medical researchers, Indigenous people account for 10% of overdose deaths, making decriminalization and safe supply a pressing priority for meaningful reconciliation and decolonization. Full decriminalization means removing all criminal sanctions and other regulatory measures — such as administrative penalties, fines, drug seizures, involuntary treatment or coerced diversion programming — for the possession of substances for personal use.

What We Need

At a time of widespread global reckoning about the harms of police and prisons, especially on Indigenous and Black lives, we need bold – not incremental – action from the federal government.

Black feminist author Robyn Maynard writes, “People from all walks of life are increasingly asking why not divest from the billions of dollars poured by cities, provinces and the federal government toward policing and incarceration. And just as importantly, why not invest instead in addressing — finally and at long last — the rampant racial, gender, class, and ability-based inequalities in our society? These are urgent questions. And some of our lives depend on how they are answered.”