Bill C-5 to amend criminal law, Controlled Drugs and Substances Act
The Women’s Legal Education and Action Fund, Black Legal Action Centre, and Canadian Association of Elizabeth Fry have called for changes to Bill C-5 to address systemic racism in the Canadian criminal justice system, particularly against Black and Indigenous women.
In December 2021, the federal government introduced Bill C-5 to amend the Criminal Code and the Controlled Drugs and Substances Act after finding that mandatory minimum penalties and restrictions on the availability of conditional sentences contribute to the overrepresentation of Black and Indigenous people in custody.
The bill addresses over-incarceration rates by eliminating specific mandatory minimum penalties and allowing for the greater use of conditional sentences similar to house arrest. It also suggests alternatives to criminal charges for people accused of simple drug possession.
In their recent submission, the advocacy groups said that while they see the bill as an initial step to combating systemic racism in the criminal justice system, the bill needs to undergo several changes to fully realize the government’s commitment to racial justice and reconciliation.
In particular, the advocacy groups call for repealing “all” mandatory minimum penalties in the Criminal Code. They argued that mandatory minimum sentences do not deter crime, are inconsistent with the Charter and sentencing jurisprudence, and contribute to the significant incarceration and over-policing experienced by members of marginalized communities.
If Parliament cannot repeal all of them, the advocacy groups noted that the bill should instead repeal those found unconstitutional by superior and appellate courts.
The advocacy groups also suggested removing the bar on conditional sentences for offences with mandatory minimum penalties.
Even if the government enacts the bill, the advocacy groups claimed that individuals who otherwise meet all requirements for a conditional sentence under the Criminal Code would be ineligible to serve their community sentence if the offence for which they were penalized has a mandatory minimum penalty. They added that this would occur even if the mandatory minimum penalty is a sentence that could be served intermittently.
“Allowing intermittent sentences but not conditional sentences for offences with mandatory minimum sentences perpetuates systemic discrimination and inequality,” the advocacy groups said. “As the Advocates’ Society observes, serving a sentence intermittently is often simply not possible for individuals living far from the nearest correctional institution.”
In theory, a person who is found guilty of a second “over 80” offence and receives the mandatory minimum sentence of 30-day imprisonment would be eligible to serve that sentence intermittently. They would be able to connect to their family, continue their employment, and access available community supports, the advocacy groups added.
However, for an Indigenous woman living in a rural, remote, or fly-in community, the advocacy groups said that the bar on conditional sentences for offences with mandatory minimum penalties “means the only real available option is jail.”
“Removing the bar on conditional sentences for offences with mandatory minimum penalties will broaden the availability of conditional sentences in appropriate situations,” the advocacy groups said. “This will allow more women to serve their sentences in their communities, keeping families together and reducing the over-incarceration of Indigenous women in particular.”
Moreover, the advocacy groups recommended the full decriminalization of simple drug possession and “automatic expungement” of records for simple drug possession.
While the advocacy groups agreed with the government’s classification of substance use as a public health matter rather than a criminal one, they noticed that the bill’s proposed diversion measures are inconsistent with understanding substance use as a public health concern.
“The reality is that Black and Indigenous users of drugs will be less likely to be referred out of the justice system, and more likely to have charges brought against them,” the advocacy groups said. “Moreover, the limited race-based data available in Canada show significant disparities in health care access and outcomes for Black women compared to white women.”
With this, there is a substantial risk that the health care sector would fail to provide adequate addiction-related health care to Black and Indigenous women. The advocacy groups said that the criminal justice system would continue criminalizing addiction and substance use rather than providing meaningful, evidence-based interventions.