Bill C-22: Mandatory Minimum Penalties to be repealed

Backgrounder

The Government recognizes that there is systemic racism in Canada’s criminal justice system. We have heard Canadians, the courts and criminal justice experts, and seen the evidence of the disproportionate representation of Indigenous peoples, as well as Black Canadians in the criminal justice system. The proposed legislation would ensure courts can continue to impose tough sentences on violent and serious crimes without the disproportionate impact on Indigenous peoples, as well as Black Canadians and members of marginalized communities.

On February 18, 2021, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, introduced proposed amendments to the Criminal Code and to the Controlled Drugs and Substances Act. The objective of this Bill is to ensure that responses to criminal conduct are fairer and more effective, while ensuring that public safety is maintained. These proposed amendments are an important step in addressing systemic issues related to existing sentencing policies. Together with Bill C-21, An Act to amend certain Acts and to make certain consequential amendments (firearms), which proposes to increase maximum penalties for certain firearms offences related to gun smuggling and trafficking, this will ensure the courts are better equipped to impose sentences that keep communities safe.

Proposed changes

Proposed changes to mandatory minimum penalties (MMP) in Bill C-22

  • MMPs would be repealed for 14 offences in the Criminal Code.
  • All six Controlled Drugs and Substances Act MMPs would be repealed.

What remains

  • MMPs would be retained for a number of offences, including:
    • murder
    • high treason
    • sexual offences (including child sexual offences)
    • impaired driving offences
    • some firearm offences, including firearms offences connected to a criminal organization.

Why make these changes to MMPs

Existing sentencing policies have focused on punishment through imprisonment, and they disproportionately affect Indigenous peoples, as well as Black and marginalized Canadians. MMPs have also resulted in longer and more complex trials and a decrease in guilty pleas, which has compounded the impact for victims, who are more often required to testify.

Addressing over-incarceration rates

These reforms would target MMPs that are associated with the over-incarceration of Indigenous peoples as well as Black and marginalized Canadians. For instance, data shows that:

  • Between 2007-2008 and 2016-2017, Indigenous and Black offenders were more likely to be admitted to federal custody for an offence punishable by an MMP. In 2020, despite representing 5% of the Canadian adult population, Indigenous adults accounted for 30% of federally incarcerated inmates. The proportion of Indigenous offenders admitted with an offence punishable by an MMP has almost doubled between 2007-2008 and 2016-2017, from 14% to 26%.
  • In 2018-2019, Black inmates represented 7.2% of the federal offender population but only 3% of the Canadian population.

Promoting judicial discretion for sentencing

Repealing certain MMPs will help ensure that a person found guilty of an offence is sentenced appropriately.

Sentencing judges must still impose a sentence that is proportionate to the degree of responsibility of the offender and the seriousness of the offence, taking into account all aggravating and mitigating factors. This includes the risk to public safety. It also includes the individual and their experience with systemic racism.

Repealing MMPs provides sentencing judges with the flexibility to impose just punishments, including terms of imprisonment that are lower or higher than the MMPs that would be repealed.

MMPs that would be repealed under Bill C-22

Criminal Code

The reforms to mandatory minimum penalties being proposed only apply to certain offences, and do not limit the ability of a judge to impose a sentence of imprisonment, particularly where doing so is necessary to protect the safety of the public.

To address the over-incarceration rate of Indigenous peoples, as well as Black and marginalized Canadians, MMPs for the following offences would be repealed:

  • Using a firearm or imitation firearm in commission of offence (two separate offences)
    • Paragraphs 85(3)(a) and (b): MMPs of 1 year (first offence) and 3 years (second and subsequent offence)
  • Possession of firearm or weapon knowing its possession is unauthorized (two separate offences)
    • Paragraphs 92(3)(b) and (c): MMP of 1 year (second offence) and 2 years less a day (third and subsequent offence)
  • Possession of prohibited or restricted firearm with ammunition
    • Paragraphs 95(2)(i) and (ii): MMPs of 3 years (first offence) and 5 years (second and subsequent offence)
  • Possession of weapon obtained by commission of offence
    • Paragraph 96(2)(a): MMP of 1 year
  • Weapons trafficking (excluding firearms and ammunition)
    • Subsection 99(3): MMP of 1 year
  • Possession for purpose of weapons trafficking (excluding firearms and ammunition)
    • Subsection 100(3): MMP of 1 year
  • Importing or exporting knowing it is unauthorized
    • Subsection 103(2.1): MMP of 1 year
  • Discharging firearm with intent
    • Paragraph 244(2)(b): MMP of 4 years
  • Discharging firearm — recklessness
    • Paragraph 244.2(3)(b): MMP of 4 years
  • Robbery with a firearm
    • Paragraph 344(1)(a.1): MMP of 4 years
  • Extortion with a firearm
    • Paragraph 346(1.1)(a.1): MMP of 4 years
  • Selling, etc., of tobacco products and raw leaf tobacco
    • Subparagraphs 121.1 (4)(a)(i),(ii) and (iii): MMPs of 90 days (second offence), MMP of 180 days (third offence) and MMP of 2 years less a day (fourth and subsequent offence)

NOTE: Consistent with the Government’s commitment to address the trafficking and smuggling of firearms in Canada and gang-related violence, MMPs are being maintained in the Criminal Code for the following offences:

  • Weapons trafficking
    • Subsection 99(2): MMP of 3 years (first offence) or 5 years (subsequent offences)
  • Possession for the purpose of weapons trafficking
    • Subsection 100(2): MMP of 3 years (first offence) or 5 years (subsequent offences)
  • Making automatic firearm
    • Subsection 102(2): MMP of 1 year
  • Importing or exporting knowing it is unauthorized
    • Subsection 103(2): MMP of 3 years (first offence) or 5 years (subsequent offences)
  • Causing death by criminal negligence, use of firearm
    • Subsection 220(a): MMP of 4 years
  • Manslaughter, use of a firearm
    • Subsection 236(a): MMP of 4 years
  • Attempted murder, use of a firearm
    • Paragraph 239(1)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
    • Paragraph 239(1)(a.1): MMP of 4 years in any other case (involving non-restricted firearms)
  • Discharging firearm with intent
    • Paragraph 244(2)(a): MMP of 5 years (first offence) and 7 year (subsequent offences) where firearm is restricted or prohibited or where the offence is committed in connection with a criminal organization
  • Discharging firearm—recklessness
    • Paragraph 244.2(3)(a): MMP of 5 years (first offence) and 7 year (subsequent offences) where firearm is restricted or prohibited or where the offence is committed in connection with a criminal organization
  • Sexual assault, use of firearm
    • Paragraph 272(2)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
    • Paragraph 272(2)(a.1): MMP of 4 years in any other case (involving non-restricted firearms)
  • Aggravated sexual assault, use of a firearm
    • Paragraph 273(2)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
    • Paragraph 273(2)(a.1): MMP of 4 years in any other case (involving non-restricted firearms)
  • Kidnapping, use of a firearm
    • Paragraph 279(1.1)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
    • Paragraph 279(1.1)(a.1): MMP of 4 years in any other case (involving non-restricted firearms)
  • Hostage taking, use of a firearm
    • Paragraph 279.1(2)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
    • Paragraph 279.1(2)(a.1): MMP of 4 years in any other case (involving non-restricted firearms)
  • Robbery with firearm
    • Paragraph 344(1)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization
  • Extortion with a firearm
    • Paragraph 346(1.1)(a): MMP of 5 years (first offence) and 7 years (subsequent offences) - where firearm is restricted or prohibited or if any firearm is used and the offence is committed in connection with a criminal organization

Controlled Drugs and Substances Act

To address the over-incarceration rate of Indigenous peoples as well as Black and marginalized Canadians, MMPs for the following offences would be repealed:

  • Trafficking or possession for purpose of trafficking (two separate offences)
    • Subparagraph 5(3)(a)(i): MMP of 1 year; Subparagraph 5(3)(a)(ii) – MMP of 2 years
  • Importing and exporting or possession for the purpose of exporting (two separate offences)
    • Paragraph 6(3)(a): MMP of 1 year; Paragraph 6(3)(a.1) – MMP of 2 years
  • Production of substance Schedule I or II (two offences)
    • Paragraph 7(2)(a): MMP of 3 years and 2 years; Subparagraph 7(2)(a.1)(i) and (ii) – MMPs of 1 year and 18 months

Related product: Mandatory Minimum Penalties Struck Down by the Courts

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