Mandatory Minimum Penalties and the Courts

In support of the Government’s commitment to reintroduce former Bill C-22 within the first 100 days of its mandate, on December 7, 2021, the Honourable David Lametti, Minister of Justice and Attorney General of Canada, introduced Bill C-5, which would amend the Criminal Code and the Controlled Drugs and Substances Act. One objective of this bill is to repeal mandatory minimum penalties (MMPs) for certain offences, including drug offences, which have not deterred crime and have resulted in the overincarceration of Indigenous peoples, as well as Black Canadians and members of marginalized communities.

These proposed amendments are an important step towards addressing systemic racism and discrimination in the justice system, while creating more effective, evidence-based policies to keep communities safe and reduce re-offending.

Where an offence is punishable by an MMP, judges are required to impose a sentence of imprisonment equal to or longer than the MMP for that offence. This is true even in cases where the judge deems that imprisonment would not be appropriate given the circumstances of the case before them.

Charter challenges to MMPs

More than 210 challenges to the constitutionality of MMPs

MMPs continue to be the subject of many Charter challenges in courts across Canada.

As of December 3, 2021, the Department of Justice Canada was tracking 217 Charter challenges to MMPs. This represents a little over a third (34%) of all Charter challenges to the Criminal Code that are being tracked by the Department. For example:

• There are 24 challenges—5 at the appellate court level and 19 at the trial court level—to MMPs for firearms offences
• There are 2 challenges—2 at the trial court level—to MMPs for drug offences, including trafficking, import/export and production

Success rates of Charter challenges

 Of all Charter challenges to MMPs tracked by Justice Canada in the last decade:

• 69% of the constitutional challenges to MMPs for drug offences were successful
• 48% of the constitutional challenges to MMPs for firearms offences were successful

MMPs struck down by the Supreme Court of Canada

In addition to the many cases in provincial appellate and trial courts, the Supreme Court of Canada (SCC) has struck down certain drug and firearms MMPs as unconstitutional over the past decade. This includes the MMPs for the first time offence of unlawfully possessing a loaded or easily loaded prohibited or restricted firearm contrary to section 95 of the Criminal Code, which carries a term of imprisonment of 3 years, and for the 5-year MMP for repeat offenders. The SCC also struck down the 1-year MMP for an offender with a previous conviction on the offence of possession of drugs for the purpose of trafficking.

Related product: Bill C-5: Mandatory Minimum Penalties to be repealed