In late 2022, Parliament repealed laws that required judges to consider mandatory minimum penalties (MMPs) for 14 offences in the Criminal Code and all six crimes in the Controlled Drugs and Substances Act.

According to the Department of Justice (DoJ), this change was made to address “systemic racism in Canada’s criminal justice system,” which now deals with a disproportionate representation of Indigenous peoples, as well as Black Canadians and members of marginalized communities.

The DoJ adds that MMPs also result in longer and more complex trials, a decrease in guilty pleas and an increase in successful Charter challenges.

The government notes that 69 percent of the constitutional challenges to MMPs for drug offences were successful, along with 48 percent of the constitutional challenges to MMPs for firearms offences.

Sentences will be specific to each case

Without the mandatory minimum penalties, sentencing judges will have greater judicial discretion to give a sentence that is proportionate to the degree of responsibility of the offender and the seriousness of the offence, taking into account all aggravating and mitigating factors. The court must consider an offender’s risk to public safety, circumstances particular to the offender and any systemic racism the offender may have experienced.

“Bill C-5 would further allow for greater use of conditional sentences for offenders who do not pose a threat to public safety,” the DoJ states. “Examples of conditional sentences would include house arrest, counselling, or treatment.”

In cases of simple drug possession it also would require police and prosecutors to consider alternative measures, such as diverting individuals to treatment programs, instead of laying charges or prosecuting.

“Repealing MMPs would provide sentencing judges with the flexibility to impose an appropriate sentence, including terms of imprisonment that are lower or higher than the MMPs that would be repealed,” the DoJ notes.

Many firearm offences are affected

Citing the over-incarceration rate of Indigenous peoples, as well as Black and marginalized Canadians, Parliament has repealed mandatory minimum penalties for the following offences:

• Using a firearm or imitation firearm in the commission of an offence
• Possession of a firearm or weapon knowing its possession is unauthorized
• Possession of a prohibited or restricted firearm with ammunition
• Possession of a weapon obtained by the commission of an offence
• Weapons trafficking
• Possession for purpose of weapons trafficking
• Importing or exporting knowing it is unauthorized
• Discharging a firearm with intent
• Discharging a firearm – recklessness
• Robbery with a firearm
• Extortion with a firearm
• Selling of tobacco products and raw leaf tobacco

Some mandatory minimum penalties remain

To signal its intent to tackle serious crimes, the government has retained MMPs for certain offences. These include murder, high treason, sexual offences (including child sexual offences) and impaired driving. Some firearm offences, including those connected to a criminal organization, will also still be punishable by MMPs. Those include:

• Weapons trafficking
• Possession for the purpose of weapons trafficking
• Making automatic firearms
• Importing or exporting knowing it is unauthorized
• Use of a firearm causing death by criminal negligence
• Use of a firearm in a manslaughter
• Use of a firearm in an attempted murder
• Discharging a firearm with intent 
• Discharging a firearm – recklessness
• Use of a firearm in a sexual assault
• Use of a firearm in an aggravated sexual assault
• Use of a firearm in a kidnapping
• Use of a firearm during a hostage-taking
• Robbery with firearm
• Extortion with a firearm 

Disclaimer: The information provided in this blog is for general educational purposes only and is not intended as legal advice. Each case is unique and the laws discussed may not apply to your specific situation. Please consult a qualified lawyer in your area for personalized guidance. The information in this blog is not guaranteed to be accurate or up-to-date and should not be relied upon as a substitute for consultation with a professional.