
(Photo credit: "The Deciders," by Nathalie Sheppard, https://journals.library.brocku.ca/index.php/SSJ/article/view/1246)
Tansi Nîtôtemtik,
Our topic today, Call to Action #32, involves important areas for criminal justice reform. Call to Action #32 states:
We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of conditional sentences.[1]
Restrictions on Conditional Sentences
Conditional sentences are non-custodial sentences served in the community. Under s.742.1 of the Criminal Code, conditional sentences cannot be given in certain circumstances, like where the maximum term of imprisonment is 10 years or more.[2] Further amendments to the Criminal Code under the Safe Streets and Communities Act[3] made conditional sentences unavailable for even more offences, including property offences like motor vehicle theft.[4]
These restrictions reflect the problematic nature of the Canadian criminal justice system. Rather than attending to the factors that lead to criminal behavior, more and more restrictions are placed on sentencing options. These restrictions lead to increased incarceration that simply perpetuates the current overincarceration of Indigenous peoples.
Mandatory Minimum Sentences (MMS)
Mandatory minimum sentences are minimum sentences that must be imposed by sentencing judges upon the conviction of certain offences. These minimum sentences apply regardless of the specific details of the offence or the circumstances of the offender. Historically, mandatory minimum sentences have been reserved for the most serious offences, such as murder.[5] In the past two decades, however, mandatory minimum sentences have been legislated for a broader range of offences under the Criminal Code of Canada and other legislation like the Controlled Drug and Substances Act (CDSA).[6]
Supporters of mandatory minimum sentences argue that they are necessary to reduce sentencing disparity, create predictability, protect the public and maintain public confidence in criminal sentencing.[7] Yet studies have shown that mandatory minimum sentences do not deter from crime. [8] These studies lend support to the critical view of mandatory minimum sentences, which focuses on their negative consequences. Some arguments against mandatory minimum sentences include heightened risk of disproportionate sentences, increased incarceration of minorities, and removal of judicial discretion.[9]
Under the current regime, a sentencing judge can only depart from a mandatory minimum sentence if they declare the required mandatory minimum sentence to be unconstitutional. Mandatory minimum sentences have, on multiple occasions, been found unconstitutional by Canadian courts under Section 12 of the Charter, which protects against cruel and unusual punishment.
For example, in 2015 the Supreme Court found that the mandatory minimum sentence for possession of a prohibited or restricted firearm with ammunition was unconstitutional in R v Nur[9] . More recently, Canadian courts have brought attention to the manner in which mandatory minimum sentences result in sentences that disregard the principles set forth in R v Gladue[10] and R v Ipeelee. As we've discussed at length this week, Gladue and Ipeelee [11] require sentencing judges to consider the systemic and background factors that impact an Indigenous offender’s culpability. (see our related posts here & here)
In R v Ookowt, a twenty year old Inuk man from Nunavut argued that the mandatory minimum sentence for reckless discharge of a firearm was unconstitutional because it breached Section 12 of the Charter. The sentencing judge agreed, based on the offender’s personal characteristics, especially upon consideration of Gladue factors.[12] The sentencing judge’s decision was overturned on appeal, but notice to appeal the Nunavut Court of Appeal decision to the SCC has been filed.[13]
TRC Call to Action #32 recognizes the disproportionate impact that mandatory sentencing has on Indigenous people in the criminal justice system. A sufficient response to this Call would address competing values where governments want to appear “tough on crime” despite the unacceptable over incarceration of Indigenous people and research that showed punitive sentencing does not deter crime. To date, however, no legislation has been passed to allow any departure from mandatory minimum sentencing of Indigenous offenders.
Final Thoughts
The Government’s lack of response to Call to Action #32 represents another empty promise to reduce the overincarceration of Indigenous peoples in Canada. Comprehensive criminal justice reform is required to make real progress towards these goals, and as Team ReconciliAction has discovered as we attend to the Justice Calls to Action, very little change has been accomplished so far. For these reasons, we are assigning a failing grade.

Thank you for reading. Until next time,
Team ReconciliAction YEG
1Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 167.
2Criminal Code, R.S.C., 1985, c. C-46, s.742.1. [Criminal Code]
3S.C. 2012, c. 1.
4Public Prosecution Service of Canada, “6.3 Statutory Restrictions on the Use of Conditional Sentences” (March 2014), online: <www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p6/ch03.html>.
5Criminal Code, supra note 2, s.235(2).
6Controlled Drugs and Substances Act, S.C. 1996, c. 19. [CDSA]
7Kari Glynes Elliott & Kyle Coady, “Mandatory Minimum Penalties in Canada: Analysis and Annotated Bibliography” (March 2016) online (PDF): Department of Justice Canada <https://www.justice.gc.ca/eng/rp-pr/jr/mmp-pmo/mmp-pmo.pdf>.
8Mary Allen, “Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences” (August 2017) online(pdf):<https://www150.statcan.gc.ca/n1/en/pub/85-002-x/2017001/article/54844-eng.pdf?st=WNKZ1Ez_>.
9R v Nur, 2015 SCC 15.
10[1999] 1 S.C.R. 688. [Gladue]
112012 SCC 13. [Ipeelee]
12R v Ookowt, 2017 NUCJ 22.
132020 NUCA 5, leave to appeal to SCC filed, 2020 CarswellNun 40.
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