Three significant elements of Bill C-5 covered here are:
1) The removal of specific mandatory minimum sentences within the Controlled Drugs and Substances Act and Criminal Code;
2) The expansion of the availability of Conditional Sentence Orders (also known as house arrest); and
3) The procedural changes of how authorities respond to simple drug possession.
Answering Your Questions:
Mandatory Minimums, House Arrest & Simple Drug Possession
Navigating the criminal justice system as an accused is difficult. This blog post is intended to assist you by offering a high-level overview of some recent and significant changes to Canadian criminal law.
On November 17, 2022, Bill C-5 received Royal Assent introducing several changes to the Criminal Code (the Code) and the Controlled Drugs and Substances Act (CDSA).
There are three important changes to note from Bill C-5:
- Bill C-5 removes all mandatory minimum sentences from the CDSA, and various mandatory minimum sentences for drug and weapons offences within the Code
- Bill C-5 expands the availability of Conditional Sentence Orders (CSOs, also known as House Arrest)
- Bill C-5 introduces changes to the procedure of how authorities respond to simple drug possession
Each of these changes will be addressed respectively.
Removal of Mandatory Minimum Sentences
Mandatory minimum sentences are the lowest form of punishment you can receive for a specific crime. In other words, this means that if you plead guilty or are found guilty of certain crimes there are certain mandatory penalties.
Mandatory minimums can be problematic since they don’t allow a sentencing judge to consider contextual factors around an offence or an offender when determining an appropriate sentence. Parliament has addressed this through Bill C-5 by removing all mandatory minimum sentences within the Controlled Drugs and Substances Act. This includes mandatory minimums for offences such drug possession, production, and trafficking.
Bill C-5 has also removed mandatory minimum sentences for fourteen different offences within the Criminal Code. These offences are predominantly related to the possession of firearms, the use of firearms, and the use of firearms while committing other offences which do not themselves have mandatory minimums.
Importantly, repealing these mandatory minimums does not remove the maximum sentences from these offences and is not an indication that these offences will be treated more leniently in the future. This simply permits the judge to have discretion to sentence individuals below the previously imposed mandatory minimum sentence in appropriate circumstances.
Expansion of the House Arrest Regime:
When clients approach our firm, often their biggest fear is being put in jail. House arrest (also known as Conditional Sentence Orders or CSOs) is, in theory, a jail sentence. However, instead of being served in an actual jail, it is served in the community.
There are obvious benefits to an offender who is sentenced to house arrest rather than traditional jail. Serving a sentence in your own home permits for greater freedom and allows an offender to be closer to their friends and family. Often a person sentenced to house arrest can leave the home for a period of a few hours a week to obtain the necessities of life, for work and for medical reasons (note: this is a non-exhaustive list).
When a person is under house arrest, they are required to follow certain conditions imposed by the Court. If the prosecution can establish that an individual under house arrest has breached their conditions, a judge may order that the balance of the sentence be served in traditional jail.
By removing mandatory minimum sentences Bill C-5 has expanded the availability of house arrest to those offences in the CDSA and the Code which previously had minimum sentences of incarceration.
Additionally, Bill C-5 has softened the barriers to house arrest previously included in s. 742 of the Code. Previously the following offences were ineligible for house arrest:
- Offences prosecuted by way of indictment with maximum sentences of over 14 years imprisonment.
- Offences prosecuted by way of indictment with maximum sentences of over 10 years imprisonment which resulted in bodily harm, involved the export, trafficking or production of drugs, or involved the use of a weapon.
- Specific offences such as sexual assault, kidnapping, theft over $5,000, arson, and others where prosecuted by way of indictment.
All of these barring criteria have now been removed from the Criminal Code.
So, are you eligible for house arrest?
The only offences where house arrest is specifically prohibited by the Code are: attempting to commit murder when prosecuted under s 239(1)(b); torture; advocating genocide; and terrorism or organised crime offences proceeding by indictment and carrying maximum sentences of over 10 years incarceration.
House arrest is now available where there is no mandatory minimum period of incarceration, where the proposed period of house arrest would be under 2 years, and most importantly where such a sentence would be consistent with the principles of sentencing and would not endanger the community.
Addressing Simple Drug Possession:
In an attempt to divert individuals away from the criminal justice system, Bill C-5 has introduced changes to how authorities should address the simple possession of scheduled substances. Bill C-5 requires peace officers and prosecutors to consider the options of doing nothing, issuing a warning, or with the person’s consent, referring them to treatment programs or other support services before charging or prosecuting for simple possession.
An important caveat to this aspect of Bill C-5 is that an officer’s failure to consider those alternative measures does not invalidate any charges that may be laid. A prosecutor may proceed with a simple possession prosecution if the prosecutor is of the view that the use of a warning or a referral, or the use of other alternative measures as defined in section 716 of the Code is not appropriate, and that in the circumstances, prosecution is appropriate.
Nonetheless, the changes implemented by Bill C-5 offer police and prosecutors direction from Parliament as to how simple possession should be addressed. These changes demonstrate a recognition by Canadian law makers that drug possession offences are predominantly a public health issue which criminalisation and incarceration has failed to resolve.
Take the next step
Overall, the changes introduced by Bill C-5 prioritise diversion from initial police contact and allow for more individualised and flexible sentencing options upon findings of guilt.
The house arrest regime has been greatly expanded by Bill C-5, but proving you’re not a danger to the community requires assistance from a lawyer. You need a team who can demonstrate to the judge that house arrest is a proportionate and just sentence in your specific circumstances. Lakin Afolabi Law’s team have successfully obtained house arrest orders for individuals facing long jail sentences in real correctional institutions. Trust us to guide you in your criminal case.
For further details about Bill C-5, mandatory minimums, house arrest, and drug possession charges please book a consultation with one of our lawyers today.