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LANA MORELLI
One Size Does Not Fit All A bill to eliminate mandatory minimum penalties
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n February 18, 2021, The Honourable David Lametti, Minister of Justice and Attorney General of Canada introduced Bill C-22, a bill that would repeal certain Mandatory Minimum Penalties (“MMPs”) in the Criminal Code. MMPs are a forceful expression of governmental policies in the area of criminal law (R. v. Nasogaluak 2010 SCC 6), usually in response to a rise in a certain criminal behaviour or to reinforce society’s condemnation of a specific crime. MMPs create a floor to what sentence a court can impose on an offender: the sentence must be equal to or greater than the MMP. Over the past 10 years, Superior Courts around the country and even the Supreme Court have been finding specific MMPs as unconstitutional (see R. v. Nur 2015 SCC 15). The issue that arises most often is that an MMP does not account for all offenders and offenses, it creates a one-sizefits-all sentencing “standard.” However, sentencing is supposed to be an individualized process, focusing on the specific offender and the specific circumstances of the offense. Proportionality is the cardinal rule of sentencing (this looks at the nature and comparative seriousness of the offense, gravity and degree of responsibility) (R. v. Lacasse 2015 SCC 64). By Parliament imposing MMPs, it has taken away the court’s discretion, in some instances, to order a unique sentence for an offender with unique circumstances. Of the current 73 MMPs (relating to 67 offenses), Bill C-22 seeks to 12 BARTALK / DECEMBER 2021
repeal 14 that specifically relate to firearm offenses. It has become clear that these MMPs have contributed to a higher rate of imprisonment and disproportionately affect Indigenous peoples and marginalized Canadians. In 2020, although only representing 5% of the Canadian adult population, Indigenous adults accounted for more than 27% of the federally incarcerated inmates. Repealing these specific MMPs does not mean that these offenses are not serious or not condemned by society. Parliament has simply recognized what former Chief Justice McLachlin said in Nur: there is a spectrum of offenders and an MMP may well be a starting point for most offenders, but not all, those at the low end of the spectrum cannot be forgotten or lumped into what “most offenders” should receive. Repealing MMPs that have a disproportionate effect on Indigenous and marginalized Canadians gives power and discretion back to the court to sentence offenders appropriately, taking into consideration all relevant factors and give actual consideration to the principles of sentencing. These factors and principles of sentencing are found in Part XXIII of the Criminal Code and stated firmly in R. v. Gladue [1999] 1 SCR 688 and R. v. Ipeelee 2012 SCC 13 with respect specifically to Indigenous offenders. The federal government has alluded to further investments to support the preparation of Gladue Reports and
Impact of Race and Culture Assessments to assist courts in determining what a fit and just sentence would be for a specific offender. If Bill C-22 comes into force and effect, there may be more community-based dispositions to promote rehabilitation, reintegration and assisting offenders to become contributing members of society. If an offender is faced with a term of imprisonment of less than two years, a court can decide whether the offender can be safely managed in the community and, if appropriate, impose a conditional sentence order (“CSO”). A CSO is similar to a probation order; however, it brings stricter conditions and more supervision. Repealing MMPs will have the effect of expanding sentencing options and allow courts to impose community-based dispositions where appropriate. Practically speaking, this may put a strain on community corrections (probation officers, conditional sentence supervisors). Funding is required to ensure there are appropriate resources in the community to assist in the goal of Bill C-22: to identify and curb systemic racism and create a more effective criminal justice system. So far, the federal government has promised funding for community organizations and programs to support atrisk youth and provide alternatives to criminal charges where appropriate. More funding needs to be pledged to ensure community-based dispositions are successful to reduce recidivism and ensure public protection. Lana Morelli, Senior Crown Prosecutor in Saskatoon, SK.
