In December 2021, Justice Minister David Lametti tabled Bill C-5, which aims to eliminate mandatory minimum penalties (MMPs) for 14 Criminal Code offences, and all six MMPs under the Controlled Drug and Substances Act. The legislation is currently being considered by the Standing Committee on Justice and Human Rights.
This is the second legislative introduction of the Bill: An identical version was tabled by Minister Lametti in the 43rd Parliament (in February 2021). It remains one of the Liberal government’s highest-priority criminal justice initiatives. During the most recent federal election, the Liberals promised to re-introduce the Bill within the first 100 days of their mandate, and they made good on that commitment.
The Bill intends to reduce the number of offences that carry mandatory minimum sentences—targeting ones that do not significantly jeopardize public safety but which contribute to the “overrepresentation of Black and racialized Canadians and Indigenous Peoples in the criminal justice system.” It represents a partial response to a call for social reforms from Canada’s Correctional Investigator, Dr. Ivan Zinger. In 2017, he identified a need to redress the “Indigenization” of the Canadian inmate population. In 2020, while Indigenous people accounted for 5% of the general population, Indigenous inmates represented 30% of the incarcerated population. There is a positive correlation between the expansion of MMPs and the widening racial incarceration gap. Over the course of the Harper government (2006-2015), the number of federal offences subject to mandatory minimum sentences broadened from twenty-four to seventy-two federal crimes. Meanwhile, the proportion of Indigenous offenders incarcerated with an MMP-tagged offence increased from 14% to 26% (dataset: 2007-2017).
Bill C-5’s Delay
Reducing the number of offences with mandatory minimum punishments represents a long-standing plank of Prime Minister Justin Trudeau’s criminal justice doctrine. He has espoused his commitment to reducing MMPs since his initial election campaign as the Liberal leader. In 2015, in an interview that aired on The West Block with Tom Clark, Trudeau described the political championing of mandatory minimum penalties as a “ploy” that panders to tough-on-crime posturing while “actually clogging up our jails for longer periods of time, and not necessarily making our communities any safer.” In 2017, former Justice Minister Jody Wilson-Ribould promised that changes to mandatory minimums “would be coming in the very near future.” Why, then, with a majority government and repeated commitment to reduce the number of mandatory minimum penalties, has it taken the Liberal government seven years to undertake these reforms?
This multi-year inaction can be attributed to counterbalancing political forces. MMPs are subject to dualling criticisms, from both sides of the political spectrum. The Conservatives have rallied around their reputation as ardent defenders of public safety by attacking Bill C-5 for its application to firearm offences at a time when firearm-related violent crime has increased. Social progressives, meanwhile, argue that the Liberal government should refocus its agenda on the upstream social determinants of crime, and dismantling the cycles of impoverishment and systemic racism that increase the risk of incarceration in the first place.
These opposing forces paralyzed the Liberal government into inertia. The status quo may well have continued — had the 2020 BLM movement not placed a spotlight on the criminalization of Black and Indigenous racial groups in Canada, and renewed national calls for criminal justice reform.
Sentencing Reform as a Back-End Policy Intervention
Reducing the number of offences that carry mandatory minimums is a good first step for this federal government, but it is not the sum total of criminal justice reform. The government will be pressured to eliminate the fifty-two mandatory minimum penalties that remain. Ultimately, sentencing reform is a back-end policy intervention which ignores the fact individuals with criminal records will still contend with significant reintegrative barriers, including discrimination in the housing and job markets, disproportionately high unemployment rates, and comparatively higher rates of mental health and addiction issues.
A paradigm shift away from sentencing reform and upstream poverty reduction, affordable housing, education, mental health, and employment services would be more effective at instigating systemic carceral change. While mandates of other ministers cover these issues, they should also fall under the work of the Minister of Justice if the racial incarceration gap is to be truly eliminated.
