For our justice system to be truly effective and fair, the punishment must fit the crime. That is why the recent passage of Bill C-5, which eliminates mandatory minimum penalties (MMPs) for 14 offences in the Criminal Code along with all six offences covered by the Controlled Drugs and Substances Act is both timely and necessary.
Offences that were removed for the mandatory minimums were chosen because of their exaggerated impact, the government states. These include dangerous driving causing bodily harm and impaired driving causing bodily harm. Calvin Barry Professional Corporation regularly appears as counsel for these offences. However, MMPs will still be retained for a number of serious offences, including murder, high treason and some firearm offences.
‘Tough on crime’ measures seen as ineffective
Bill C-5 reverses the “tough on crime” measures passed under former Conservative prime minister Stephen Harper. MMPs, critics said, did little to deter crime or make communities safer. Instead, these minimums have been blamed for putting a further strain on our already over-burdened court system by reducing the ability to negotiate plea deals.
It had also been long argued that mandatory minimums led to the overrepresentation of Black and Indigenous people in our prisons.
“Systemic racism is a reality for too many in Canada’s criminal justice system. We have heard from the public, the courts, and criminal justice experts, and seen the evidence of the disproportionate representation of Indigenous people, Black persons, racialized Canadians, and members of marginalized communities, both as offenders and as victims,” said in a statement after the bill received Royal Assent. “With this law, we have repealed the mandatory minimum penalties that have most contributed to the over-incarceration of Indigenous people, Black persons and racialized Canadians. These reforms will ensure a fairer, more effective justice system for all while maintaining public safety.”
Supreme Court decision was disappointing
The passage of Bill C-5 alleviates the disappointment felt by many in legal circles following the Supreme Court of Canada (SCC) ruling in R. v. Sharma, which restored provisions in the Criminal Code that stated conditional sentences cannot be given for crimes carrying maximum sentences of at least 14 years in prison, or 10 years in drug-related cases.
The majority in the Court concluded that the respondent “did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non-Indigenous offenders.” This despite the fact that both the majority and those in dissent noted the over-incarceration of Indigenous people is undeniable.
The Court’s justification was based on a number of grounds, one of which was that Parliament wanted to make the conditional sentencing system predictable by removing the provision of mandatory penalties for certain offences.
It is important to note that although consistency and legal certainty are crucial to the development of our legal system, rigidity in sentencing threatens to interfere with providing justice to marginalized groups.
Justice Andromache Karakatsanis’ dissent accurately noted that “sentencing law cannot erase this country’s colonial past. Nor can it remove the causes behind an offender’s crime. But it is uniquely positioned to ameliorate — or aggravate — the racial inequalities in our criminal justice system.”
Although the decision of the Supreme Court of Canada may have enhanced clarity, it can also be argued that it set aside the importance of reconciliation.
Imprisonment is expensive
Along with addressing the troubling problem of systemic racism, another key advantage of Bill C-5 is that it encourages a cost-effective alternative to imprisonment. According to Statistics Canada, the government shells out more than $400 a day to keep an inmate incarcerated. That is $150,000 a year per inmate in tax dollars.
The annual cost to the public when someone is serving a conditional sentence is about $100,000 less.
As a former prosecutor and defence attorney, I have served from both sides of the court and I know the importance of a conditional sentence. It is not, nor should ever be considered, a Get Out of Jail Free card. It is often referred to as a “house arrest.” That does not mean the person merely sits at home.
When someone has been convicted of a crime, a judge will impose a sentence of imprisonment for a set period before granting a conditional sentence.
As the name implies, a conditional sentence has rules that could include curfews, restrictions and participation in court-mandated programs. If a person breaches the conditions of their sentence, they can be placed in custody to serve the remainder of their court-imposed term.
And let’s not forget, just because they are available for most criminal charges, it does not mean an offender will automatically receive a conditional sentence. Bill C-5 simply gives the court more discretion to decide on a fit punishment depending on the circumstance.
Move could help reduce court backlogs
This bill makes judicial sense. Our courts have historically been overburdened, a problem that was only exacerbated due to delays associated with the coronavirus pandemic. Bill C-5 allows me to negotiate with the Crown to save valuable court time. Rather than facing a lengthy and costly trial, my client can plead guilty and accept a conditional sentence.
Again, an accused is not getting off scot-free. They are making an admission of guilt and accepting responsibility for what they have done. It is the first step in rehabilitation. They must then prove that they have earned the right to remain in society rather than being sent to jail.
Allowing offenders to serve their sentences in the community rather than jail is a better option for achieving rehabilitation goals because it allows judges to consider options that may be more appropriate than those offered in a custodial sentence. It also allows those convicted to be contributing members of society, rather than a drain on the public purse.
Bill C-5 recognizes that a jail term is not always the best way to deal with criminal offences. For example, drugs have long been a public health problem. Wouldn’t it be better if we tackled that problem through treatment programs rather than imposing a harsh and often regressive prison term? This bill allows for that.
Give those responsible the chance to make amends
Obviously, we cannot lose sight of the effectiveness of prison as a deterrent to crime. But striking a balance between crime and punishment is essential in a just and democratic society. Those willing to assume responsibility for their actions must be given the chance to prove they can make amends for their transgression.
History has proven we cannot simply end crime with harsh sentences. There are times when leaving options open is more effective than slamming the prison door shut.
We are ready to defend you
If you have been or any criminal matter, it is important to remember that you are innocent until proven guilty. You have rights, and the team at Calvin Barry Professional Corporation is here to ensure you are treated fairly and justly. When you are facing criminal arrest, your first call should be to us.