Bill C-5: An Act to amend the Criminal Code and the Controlled Drug and Substances Act
Tabled in the House of Commons, December 16, 2021
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-5 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Bill C-5 would make a number of amendments to the Criminal Code and the Controlled Drugs and Substances Act that seek to fulfill the Government of Canada’s commitment to address systemic inequities, including the overrepresentation of Indigenous Peoples, Black, and marginalized Canadians, in the criminal justice system. There are three areas of proposed reform in the Bill: (1) the repeal of all mandatory minimum penalties of imprisonment (MMPs) for offences under the Controlled Drugs and Substances Act and the repeal of MMPs for a tobacco offence and some offences involving the possession or use of firearms under the Criminal Code; (2) changes to increase the availability of conditional sentences under the Criminal Code; and, (3) changes to the Controlled Drugs and Substances Act to promote the use of diversion for simple possession of drugs.
Repeal of Certain Mandatory Minimum Penalties of Imprisonment (MMPs)
MMPs limit judicial discretion in sentencing and require a judge to impose a sentence of imprisonment that is equal to or higher than a specified minimum length on an offender upon conviction.
Protection against cruel and unusual treatment or punishment (section 12)
Section 12 of the Charter guarantees the right not to be subjected to any cruel and unusual treatment or punishment. In the context of sentencing, section 12 prohibits grossly disproportionate punishments. MMPs reduce judicial discretion to impose sentences that are proportionate to the gravity of the offence and degree of responsibility of the offender. As such, and depending on the circumstances MMPs have the potential to lead to sentences that may be viewed as grossly disproportionate. The proposed amendments to repeal MMPs for select offences would have the effect of reducing this potential by restoring judicial discretion to fashion a sentence that is fit and proportionate in the circumstances.
Availability of Conditional Sentences
Conditional sentences encourage the use of principles of restorative justice in sentencing, and are a tool to address the over incarceration of Indigenous offenders and to reduce overreliance on incarceration, where appropriate. A conditional sentence allows an offender to serve their term of imprisonment in the community under strict conditions, such as confinement to house, curfew, treatment, and/or restrictions on owning/possessing/carrying a weapon, while furthering the sentencing goals of denunciation and deterrence. In order for a conditional sentence to be imposed, several requirements set out in section 742.1 of the Criminal Code must be met: (1) that the court is satisfied that a conditional sentence is consistent with the fundamental purposes and principles of sentences and would not endanger the safety of the community, (2) that the offender is sentenced to a term of imprisonment of less than two years and, (3) that the offender must not have been convicted of an offence for which there is a minimum term of imprisonment.
There are currently additional restrictions in the Criminal Code which limit the availability of conditional sentences for certain types of offences. The proposed amendments would repeal the restrictions on conditional sentences for the following type of offences prosecuted by indictment:
- offences for which the maximum term of imprisonment is 14 years or more;
- offences with maximum terms of imprisonment of ten years and involving bodily harm, certain drug offences or offences involving the use of a weapon; and
- specific offences punishable by a maximum term of imprisonment of ten years, such as sexual assault, criminal harassment and motor vehicle theft.
Removing these restrictions would increase the availability of conditional sentences as a sentencing option where the general requirements under section 742.1 of the Criminal Code are met. Conditional sentences would remain unavailable for terrorism and criminal organization offences prosecuted by indictment with maximum terms of imprisonment of ten or more years. In addition, the Bill would also amend section 742.1 to make conditional sentences unavailable for the specific offences of advocating genocide, torture and attempted murder.
Right to liberty (section 7 of the Charter)
Section 7 of the Charter protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose. Because the amendments would create limited new restrictions on the availability of conditional sentences as an alternative to imprisonment for the offences of attempting genocide, torture and attempted murder, they have the potential to deprive liberty and so must accord with the principles of fundamental justice.
The following considerations support the consistency of the limited new restrictions on the availability of conditional sentences with section 7. The amendments are tailored to prohibit conditional sentences for only specific serious offences: the offences of advocating genocide, torture and attempted murder. The amendments do not otherwise limit judicial discretion to impose a sentence that is fit and proportionate in the circumstances.
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