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Harper Era Mandatory Minimum Sentences Repealed, Conditional Sentences More Widely Available

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By Neuberger & Partners LLP

Toronto Criminal Defence Lawyers

On November 17th, Bill C5 received Royal Assent. With the passage of this legislation, many mandatory minimum penalties that deprived judges of the discretion to consider the full circumstances of the offender have been repealed. Conditional sentences—wherein the convicted offender serves their sentence in the community rather than a jail—have also been made more widely available, with many provisions restricting their availability for certain offences and categories of offences having been repealed.

The Harper government introduced a slew of ‘law and order’ policies that did two main things: 1) imposed a number of mandatory minimum penalties; and 2) removed the availability of conditional sentences.

Mandatory minimum penalties are Criminal Code provisions which require a judge to impose a sentence of no less than a certain amount of time. This is contrary to the normal approach to sentencing—while the courts have developed various ranges for certain offences over the years, the sentencing process is necessarily an individual process, which takes all of the circumstances of the offender into account. Judges, in the normal course, have an incredibly high level of discretion in sentencing decisions. Mandatory minimum penalties rob judges of that discretion and require a judge to impose a sentence that may not be fit for the offender who is before the court.

Conditional sentences were first implemented in Canada in the 1990s. In layman’s terms, a conditional sentence is effectively house arrest. While the term of the conditional sentence is, for the purpose of the offender’s criminal record, the same as a jail sentence, the penalty itself is served in the community under strict conditions. If the offender breaches those conditions without a good excuse, then the offender will likely be sent to serve the remainder of their sentence in a jail.

The law of sentencing in Canada has multiple important objectives set out in s. 718 of the Code. There are several different punitive purposes, such as denunciation (giving life to society’s disapproval of crime) and deterrence (in terms of both deterring the offender before the court from committing further offences, and in terms of deterring others from committing similar offences). Perhaps one of the most important objectives that is the worst served by our current system of criminal punishment is rehabilitation. As former Chief Justice Lamer wrote in R v Proulx— “Prison has been characterized… as a finishing school for criminals and as ill-preparing them for reintegration into society.” Conditional sentences allow for a punitive sentence which imposes true hardship on the offender, with the threat of formal imprisonment looming over their heads if they breach, but also allows non-dangerous offenders to serve out their punishment in a manner that allows for more rehabilitation and does not contribute to the problem of overincarceration in Canada.

The repeal of these draconian laws is good news for the state of the criminal justice system in Canada. While some mandatory minimum sentences remain, such as for murder and certain serious firearms offences, the majority have been removed, thus returning discretion to judges to consider all of the circumstances of the offender in crafting a fit penalty and saving offenders from having to embark on lengthy and expensive constitutional applications to challenge mandatory minimums. The increased availability of conditional sentences will also help reduce the problem of overincarceration and allow more offenders to serve a sentence with rehabilitation as the primary purpose, hopefully allowing them to reintegrate and become productive members of society.

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