Some northern defence lawyers say a new federal bill that aims to quash mandatory minimum sentences for several offences is a step in the right direction. Conservative politicians elsewhere disagree.
The Liberal government introduced Bill C-22 in the House of Commons last week, saying it will help combat the overrepresentation of Indigenous and Black people in Canada’s criminal justice system.
If passed, the bill will get rid of mandatory minimum sentences for all drug and some firearms offences, expand the use of conditional sentences like house arrest, and require police and prosecutors to consider alternatives to criminal charges and jail time for simple drug possession.
At least two northern defence lawyers say the bill would give judges greater discretion when determining sentences in individual cases, rather than using the one-size-fits-all approach currently imposed by Parliament.
“It shows confidence in the judges, who are obviously well-qualified to preside in these courts and make these decisions all the time,” said Ryan Clements, a BC-based defence lawyer who practices in the NWT.
Clements noted the mandatory minimums for many offences listed in Bill C-22 have already been struck down as unconstitutional by Canadian courts, including in the North.
The proposed legislation aims to remove mandatory minimum sentences for crimes such as using a firearm in the commission of an offence, possessing a prohibited or restricted firearm with ammunition, illegally selling tobacco products, and weapons trafficking.
Charles Davison, an NWT criminal defence lawyer, represented Tony Kakfwi in challenging the four-year mandatory minimum for recklessly discharging a firearm, arguing it amounted to cruel and unusual punishment.
In 2018, NWT Supreme Court Justice Louise Charbonneau ruled the mandatory minimum did contravene the charter, but was not a grossly disproportionate sentence in Kakfwi’s case.
“Mandatory minimum sentences bind the hands of the judges in a way that … can lead to serious injustice, serious sentences being imposed that are far harsher and more severe than is necessary in the particular case,” Davison told Cabin Radio.
Undoing Conservative reforms
Bill C-22 is part of the Liberal government’s efforts to undo the tough-on-crime reforms of Stephen Harper’s Conservative government.
According to the CBC, in 2004, before the Harper government came into power, there were mandatory minimum sentences for a total of 24 federal offences. By 2015, that number had tripled.
That includes mandatory minimums for a number of firearm offences, which the Conservative government introduced in 2008.
Liberal justice minister David Lametti said last week those laws, and mandatory minimums for drug offences, had largely impacted low-risk and first-time offenders who are disproportionately Indigenous, Black, or struggling with addiction. He said the laws had done little to improve public safety while depleting scarce criminal justice resources.
Davison said the mandatory minimums for firearms offences were largely intended to target gang violence in Canada’s larger urban centres, but there were no exceptions for cases beyond those circumstances. That’s an issue in the North, he said, as many people have access to firearms.
“That mandatory minimum was also applicable to somebody in the North who might, in a fit of passion or under the influence of alcohol, use their firearm in a dangerous or reckless way,” he said.
“Nobody is saying that people that do that should go unpunished. If you misuse your firearm and put other people at risk, you are going to pay a very severe price and that’s appropriate. But saying it cannot be anything less than jail for four years is going too far.”
Conservatives say bill ‘too soft’ on crime
Conservative politicians across Canada criticized the government’s move to eliminate some mandatory minimum sentences.
In a statement in response to Bill C-22, Conservative house leader Gérard Deltell and Rob Moore, the party’s shadow minister of justice, voiced concern about public safety.
“Conservatives are concerned about the government’s proposals to broaden conditional sentencing to allow more sentences to be served under house arrest, which could put communities at risk. The elimination of mandatory prison time for violent firearms offences is also concerning and requires a greater degree of scrutiny,” their statement read.
Alberta justice minister Kaycee Madu issued a statement calling Bill C-22 “soft on criminals who perpetuate real gun violence.”
“Removing tough, mandatory penalties for actual gun crimes undermines the very minority communities that are so often victimized by brazen gun violence. I also find it disingenuous for Ottawa to exploit a genuine issue like systemic racism to push through their soft-on-crime bills,” he said.
Liberal NWT MP Michael McLeod noted the government hopes to increase the maximum sentences allowed for firearms trafficking, smuggling and related offences, giving judges further discretion during sentencing.
“There’s other legislation measures that are going to complement this Bill C-22,” he told Cabin Radio. “I think all of these will start to work at making our communities a lot safer, and making the system more effective.”
Last week, the Liberal government also introduced Bill C-21, which proposes a number of changes to firearms laws.
Those changes include allowing municipalities to restrict handguns and making it an offence to alter a cartridge magazine to exceed its lawful capacity. Ottawa says this will help to combat intimate partner and gender-based violence, self-harm involving firearms, and gun smuggling and trafficking.
Alberta’s Madu, however, characterized the bill as “scapegoating duly-licensed, law-abiding firearms owners.” The bill has also faced criticism from the airsoft industry, which says it is being unfairly targeted.
Gun control advocates, meanwhile, say Bill C-21 falls short as it includes a voluntary rather than mandatory buyback program for around 1,500 kinds of weapon prohibited in May 2020. Some gun owners in the NWT have opposed that ban.
Both Davison and Clements noted that if Bill C-22 passes, it doesn’t mean people convicted of serious drug or firearms offences won’t go to jail.
“I don’t think we’re going to see cases come along where nobody goes to jail or fewer people necessarily go to jail,” Davison said. “What it probably will mean is people go to jail for shorter periods of time and it’s based on what the judge assesses as being appropriate for that particular case and that particular offender.”
He added that the bill does not remove mandatory minimum sentences in cases where someone recklessly discharges a restricted or prohibited firearm, or in association with a criminal organization.
Clements said he doesn’t believe the proposed legislation will change sentencing outcomes in most cases, only those where the mandatory minimum was “extremely excessive.”
“I think one of the ways things might change is there will be less fighting about whether these laws are constitutional or not constitutional in court,” he said. “There’ll be less litigation about these topics that do distract from the actual sentencing process.”
Conservative MPs Deltell and Moore believe Bill C-22 will do little to help people with addictions, as promised by the Liberal government, as it “eliminates mandatory prison time” for people producing or trafficking illicit drugs.
“Conservatives are focused on ensuring Canada’s drug laws target individuals who prey on Canadians struggling with addictions through trafficking and the sale of drugs,” their statement read.
Advocates like the HIV Legal Network, however, say the bill doesn’t go far enough as it does not fully decriminalize drug possession for personal use. Instead, it encourages police and prosecutors only to consider non-criminal interventions that address the root causes of problematic substance use, like education or treatment.
Davison noted this could be a challenge in northern communities where programs and services are limited. He believes the government will be able to adapt, however, noting the NWT government’s current policy of sending residents to addictions treatment centres in southern provinces.
McLeod said that while the NWT government has chosen not to reopen a treatment centre in the territory, the federal government is ready to provide whatever support is needed.