The Section notes that “tough on crime” is a failed approach to criminal law policy. “It has, among other things, increased system delay and made the overincarceration of marginalized individuals worse,” it writes.
Mandatory minimum sentences, by limiting the discretion of sentencing judges, result in unjust and sometimes cruel sentences that violate the Canadian Charter of Rights and Freedoms. In addition to that and the overincarceration of marginalized individuals, they cause court delays and fail to deter crime.
The CBA Section has been arguing against mandatory minimum sentences since 1995, when Bill C-68, the Firearms Act, introduced what Bill C-5 is now seeking to repeal. Not only do these mandatory minimum sentences not deter crime, but they don’t target the most dangerous offenders who already receive stiff sentences. And they “subvert the principles of proportionality and individualization, cornerstones of Canadian sentencing law.”
Mandatory minimum sentences treat all offenders the same, regardless of their moral culpability or circumstances that led to the offences. “It makes little sense to treat addicts who deal drugs to their peers to feed their own addiction the same as a ‘hardened’ criminal involved in trafficking purely for profit,” the Section writes, adding that sentencing is not a “one size fits all” proposition.
The concept of conditional sentence orders – or CSOs – has been part of the Criminal Code since 1996. The intention, in part, was to address overincarceration by allowing a judge to sentence an offender to jail in the community when this was the right thing to do. This was only possible in the case of non-dangerous offenders and only when their offences would warrant a sentence of two years or less.
“Successive governments have restricted the availability of CSOs as a sentencing option,” the Section says. “Unsurprisingly, the problem of overincarceration of marginalized individuals has worsened since these restrictions were enacted.”
The CBA Section believes restrictions on CSOs are discriminatory, overbroad and fail to achieve their objective. For that reason, it agrees with and supports the repeal of restrictions on CSOs as set out in Bill C-5, which will benefit Indigenous or marginalized offenders.
And to those who would argue CSOs are too lenient, the Section counters that “serving a sentence, confined in your home on the threat of imprisonment is a significant penalty for non-dangerous offenders (the only individuals eligible for such a sentence). If the COVID-19 pandemic has taught us one thing, it is that being forced to stay in one’s home, except for groceries or work, is, a significant punishment.”
Finally, the CBA Section endorses the use of alternative measures to deal with simple possession of controlled substances. Unlike criminal enforcement, it does not stigmatize people suffering from addiction or label them as criminals, and it avoid saddling people with criminal records that making finding employment or access to social supports much harder.
Diversion of simple possession offences should be the Crown’s default position, concludes the Section.
Brigitte Pellerin is the Editor for Publications with the Canadian Bar Association.