The federal government is proposing new legislation that would get rid of mandatory minimum sentences for a number of firearm and drug offences – a move several northern defence lawyers have endorsed.
David Lametti, Canada’s justice minister and attorney general, introduced Bill C-22 in the House of Commons on Thursday. It proposes to repeal mandatory minimum sentences for a range of criminal offences including recklessly discharging a firearm, weapons trafficking, illegally selling tobacco products, and production of a substance.
The government says minimum sentences for those crimes largely affect low-risk and first-time offenders who are disproportionately Indigenous, Black, or struggling with addictions.
“It was an approach that did not make our communities safer. It did not deter criminals. It did not make the justice system more effective or more fair,” Lametti told reporters. “Its singular accomplishment has been to incarcerate too many Indigenous people, too many Black people and too many marginalized Canadians.”
Arif Virani, parliamentary secretary to Minister Lametti, told Cabin Radio the legislation will give judges greater discretion during sentencing and prevent “clogging up the court system” by reducing the use of scarce judicial and prison resources on low-level offenders.
“The focus should be on the firearms traffickers or drug traffickers, the people who are the head honchos running criminal organized rings, gang-related activities,” he said. “That helps keep Canadians safe in our communities.”
According to Lametti, the time taken for firearms offences to proceed through the criminal justice system has more than trebled since 1996. Cases involving drug offences are taking 60 percent longer.
Overturning a Harper-era policy
Lametti characterized the bill as “turning the page on a failed Conservative criminal justice policy.”
In 2008, Stephen Harper’s Conservative government introduced mandatory minimum sentences for a number of firearm offences.
Then, in 2015, the Supreme Court of Canada struck down minimum sentences for crimes involving prohibited firearms, saying they were cruel and unusual. But the federal government at the time stood behind the policy, citing public safety.
Northern courts have seen several cases where lawyers have challenged the constitutionality of mandatory minimum sentences for firearms offences.
In the cases of Cedric Ookowt in 2017 and Simeonie Itturiligaq in 2018 – both young Inuit men and traditional hunters with no prior criminal record – the Nunavut Court of Justice found that the four-year mandatory minimum for recklessly discharging a firearm violated their charter rights.
In 2020, however, the territorial court of appeal overturned that ruling, finding that a four-year sentence was not “grossly disproportionate” in either case.
In the NWT, Justice Louise Charbonneau ruled in 2018 that the four-year minimum for recklessly discharging a firearm contravened the charter. But she found it was not a grossly disproportionate sentence in the case of Tony Kakfwi, who was convicted following an incident at a community meeting in Fort Good Hope in 2016.
Asked how changes to sentencing for firearms offences could impact the safety of Indigenous women and girls, Virani pointed to legislation introduced by public safety minister Bill Blair earlier this week.
That legislation, Bill C-21, proposes firearms amendments in part to combat intimate partner and gender-based violence. That includes a new “red flag” regime that would allow anyone to apply for a court order to remove firearms for 30 days from individuals who may pose a danger to themselves or others.
Despite the fact that the Liberal Party has a minority government, Virani, said he is “optimistic” that Bill C-22 will pass.
“We know that many parties in the House, including ours, the governing party, believe that the Conservative approach to handling these types of issues hasn’t been successful,” he said.
‘A very poor substitute’ for social services
Alongside alterations to mandatory minimum sentencing, the new legislation proposes changes that would require police and criminal prosecutors to consider alternatives to criminal charges and jail time for simple drug possession.
The government said it recognizes that “problematic substance use should be addressed primarily as a health and social issue.”
The bill allows for greater use of conditional sentences, also known as house arrest, in cases where offenders do not pose a threat to public safety and face a term of imprisonment of less than two years.
“These are not offenders that we’re worried about. They’re not a menace to society. They’re not putting society in danger,” Lametti said. “These are people with health problems. These are single mothers. These are young people who perhaps have made a couple of mistakes.”
“We know that the criminal justice system is a very poor substitute for a social service organization,” added Ahmed Hussen, minister of families, children and social development, and a former criminal defence lawyer. “We need to be not only tough on crime, but tough on the causes of crime, which is what this bill is about.”
In response to questions from reporters, Lametti acknowledged the need to adequately fund diversion programs, including community and restorative justice programs and addictions treatment.
There have long been concerns about addictions recovery services in the NWT, including debate about whether the territory should reopen a northern treatment centre.
The territorial government recently launched a survey to gauge the effectiveness of addictions recovery services.