The need for Bill C-5: Mandatory Minimum Penalties and anti-Indigenous bias

Rather than bow to renewed pressure for “tough on crime” policies, Mark Carney should take heed of their failures and continue down the path of reform.

Stephen Harper proposing “tough on crime” legislation. From the Toronto Star.

By Fayez Sahak

At the end of an election campaign fraught with discussion of crime, Prime Minister Mark Carney is now under pressure to address one of the issues where Pierre Poilievre was most favoured by Canadians. This provides fertile ground to re-visit the Liberal rationale for repealing Mandatory Minimum Penalties (MMPs) established during the Harper years, and the biases inherent in limiting judicial discretion.

After serving a prison sentence for a robbery involving a taser, a man is sentenced to a mandatory minimum five-year supervisory order which imposes strict conditions on his day-to-day behaviour, including a mandated curfew and restrictions on travel and residency. This is the story of Marvin Starblanket, a member of the Mistawasis First Nation. It reflects the grim yet all too common reality that Mandatory Minimum penalties (MMP) have disproportionately had on Indigenous peoples in Canada.

While Black, minority and Indigenous peoples in Canada are already disproportionately incarcerated for all crimes, with Indigenous peoples comprising only 5 per cent of the Canadian population but 33 per cent of the incarcerated population, the facts related to MMPs are even more damning: The Research and Statistics Division of Correctional Service of Canada found that Black and other visible minority offenders were more likely to be admitted with a conviction for an offence punishable by an MMP. What’s more, Indigenous peoples are also disproportionately incarcerated for drug-related crimes, which comprised 75 per cent of all offences punishable by an MMP between 2007/2008 and 2016/2017. This demonstrates not only a general sentencing bias against Indigenous peoples but also a trend line of the types of crimes to which MMPs are applied.

Canada has had a history of MMPs as old as the Criminal Code itself, but these were dramatically expanded under Stephen Harper’s leadership to include over 60 new MMPs; the lion share of which being applied to firearm and drug related offences. The Harper government proposed Bill C-2 (The Tackling Violent Crime Act, 2008), which introduced firearm offence MMPs of 1-5 years dependent on priors and the omnibus Bill C-10 (The Safe Streets and Communities Act, 2012), which expanded MMPs for drug offences, restricted conditional sentences such as house arrest, and increased the length and criteria of various MPP’s within the Criminal Code and the Controlled drug and substances Act (CDSA).

These increased penalties reflected a conservative, “tough on crime” sentiment, specifically targeting drug related and firearm offences; categories of criminality for which Indigenous peoples are disproportionately found culpable. Canada’s MMP framework does not include a structured discretion mechanism like a “safety valve,” unlike other jurisdictions including the UK. This blunts the effect of judicial discretion when adjudicating over cases involving MMPs and can produce overbearing sentences, often for non-violent, first-time offenders.

Some landmark cases have started to establish precedents that reduce the impact of MMPs, with traction being gained through cases such as R v. Nur (2015), which established an argument of unconstitutionality against MMPs and R v. Lloyd (2016), which struck down a one year MPP for repeat drug possession citing section 12 of the Charter. The shift away from Harper’s persecutory approach and towards a rehabilitative, social-determinant conscious approach to adjudication of sentencing really only began with Liberal efforts post-Harper.

Bill C-22, initially tabled in 2021, aims to remove all mandatory minimum penalties from the criminal code. It was eventually re-written and granted for royal assent as Bill C-5. This legislation is a step in the right direction of addressing the inequities and shortcomings of MMPs in Canada. It includes repealing 20 MMPs; including all drug offence MPPs, several firearm offence MMPs and proposes restoring conditional sentencing.

Pushing back against rigid sentencing frameworks and instead incorporating considerations of social determinants of criminality to thwart sentencing bias is necessary. While this will not fully solve structural sentencing disparities, Bill C-5 mitigates at least some failures of MMPs. While Bill C-5’s approach is in keeping with the Gladue principles, it could benefit from explicitly vying for the increased use of Gladue Reports in assessing prior criminal history of Indigenous peoples. This vetting requirement could re-inject an element of judicial discretion into the assessment of MPPs, even if only for Indigenous peoples.

With a new government, under pressure from Pierre Poilievre to tackle crime, Mark Carney should not be tempted by the false promise of MMPs. If the new Liberal government is to keep its promise to deliver on the demands of the Truth and Reconciliation Committee’s 94 calls to action, it must acknowledge the repealing of MMPs as part of that set of demands, and indeed take criminal justice reform further.

Fayez Sahak is a service-oriented professional with 7 years of experience in adaptation/mitigation and monitoring & evaluation, specializing in gender-responsive evaluations and policy development. Fayez has worked extensively on gender equality, climate change, migration, and food insecurity, supporting women’s organizations and marginalized groups. His expertise includes climate resilience, carbon emission reduction, and rigorous monitoring frameworks. Currently, Fayez is at the Max Bell School of Public Policy to deepen his knowledge in policy development, focusing on the intersection of climate change, global environmental security, and humanitarian issues.