For years, mandatory minimum sentences have been the basis of much debate—and this week will be no exception.

Bill C-5, which seeks to remove several mandatory minimums, is currently being examined by the standing committee on justice and human rights. 

If passed, Bill C-5 will do several things. It will remove all mandatory minimum sentences from the Controlled Drugs and Substances Act, in addition to a number from the Criminal Code. It will also restore the availability of conditional sentence orders—colloquially referred to as house arrest—for many offences and establish a diversion program for cases of simple drug possession. 

Although the bill has been met with some criticism by so-called “tough-on-crime” proponents, many in the legal community have expressed their enthusiastic support. Mandatory minimum sentences have a long history of being scorned and rebuffed at various levels of the judiciary—and for good reason.  

For starters, these types of sentences tend to disproportionately affect Indigenous offenders and other visible minorities. 

A 2017 study from Justice Canada found that almost half of racialized offenders in federal penitentiaries were serving a mandatory minimum sentence. This is an alarming figure—particularly when compared to the just 31 percent of white offenders who were doing the same.  More recently, the Canadian Association of Black Lawyers called on the minister of justice of review and repeal mandatory minimum sentences, citing their unequal impact on racialized communities. 

Laws that disproportionately impact marginalized groups have no place in our communities.

Secondly, in spite of what some may say, there is nothing to support the suggestion that mandatory minimum sentences have a deterrent effect on crime. 

Throughout the years, judges in various levels of courts have questioned the effectiveness of such sentences in curbing crime. In spite of their questions, there have been no conclusive comprehensive or authoritative studies to support the notion that mandatory minimum sentences lead to a reduction in crime. 

Rather, the removal of mandatory minimum sentences will inevitably give judges more leeway in imposing properly fit sentences.

Mandatory minimum sentences remove judicial discretion. Judges have no other choice but to impose a uniform sentence, regardless of the gravity of the offence or the offender’s personal circumstances and degree of moral culpability. 

When judicial discretion is removed, judges may be forced to impose a sentence that is unfit. These sentences may not appropriately reflect the circumstances of the offence or the offender. They may not properly serve the basic principles and aims of sentencing. 

Without being bound by restrictive sentences, judges would be free to consider the unique circumstances of the offender and the offence in tailoring a penalty that is both appropriate and just. It will avoid the imposition of sentences that could be described as cruel or disproportionate. Surely, this is in the public interest. 

Another reason to scrap mandatory minimums has to do with court delays. We often hear about the problem of judicial backlog and many of us agree that it is a problem. 

Long wait times just to get a matter into court have led lawmakers to consider all types of creative solutions, including an increased reliance on technology and moving some matters out of court altogether. But repealing mandatory minimums could have the biggest impact of all. 

Mandatory minimum sentences often stymie counsel’s ability to engage in meaningful and productive resolution discussions prior to trial. Without the ability to work out a solution, negotiation comes to a grinding halt. This means that matters that could be otherwise resolved without a trial will proceed to trial, taking up valuable court time and resources. 

But perhaps one of the most compelling reasons to support Bill C-5 has to do with the creation of an alternative measures program to deal with the simple possession of drugs. 

This program would allow those who are caught with small amounts of drugs for personal use to access programming outside of the criminal justice system. It would be aimed at rehabilitation and support, rather than punishment. 

A diversion program like this would be effective in helping to destigmatize drug addiction and to avoid compounding effect that a criminal record can have on those who are already marginalized. By treating substance abuse as a public health issue, rather than a criminal activity, we may be in a better position to deal with the complex reality of the opioid crisis and—ultimately—to save lives. 

All things considered, there is little reason not to support Bill C-5.