Judges Get Flexibility on Mandatory Minimums

Summary#

This bill changes how judges in Canada can sentence people. It lets judges depart from mandatory minimum sentences and mandatory prohibition orders when they find it just and reasonable. It also removes the need for the Attorney General to approve court‑supervised treatment before sentencing and expands the role of juries in murder cases.

• Judges may impose a different punishment even if a law sets a minimum sentence, with reasons on the record (Clause 1).
• Judges may decline or change mandatory prohibition orders, including their length, if justified, and must state reasons (Clause 1).
• Before imposing a minimum prison term or parole ineligibility, judges must consider all other options and provide written reasons if they still impose it (Clause 1).
• Courts can delay sentencing so a person can attend a treatment or counselling program chosen by the court, without Attorney General consent (Clause 2).
• In first- and second-degree murder cases, the judge must ask the jury for a recommendation on parole ineligibility and consider it when deciding whether to set a different period than the default (Clause 4).

What it means for you#

• Households and accused persons

  • Judges can sentence below mandatory minimums if they find it just and reasonable. Judges must first consider all other options and explain in writing if they still impose the minimum (Clause 1).
  • If a law requires a prohibition order (for example, certain automatic bans), a judge may decide not to impose it or may change its conditions or length, with reasons (Clause 1).
  • You may ask the court to delay sentencing so you can attend a court‑supervised treatment or counselling program. You, not the Attorney General, must consent. The court must consider victim interests (Clause 2).
  • In murder cases, the jury’s recommendation on parole ineligibility will be sought and considered. The judge may replace the default 25‑year (first degree) or 10‑year (second degree) period with another period, after considering the jury’s view (Clause 4).

• Victims and survivors

  • Courts must consider your interests before allowing treatment‑based sentencing delays (Clause 2).
  • Mandatory prohibition orders are no longer automatic. Judges can waive or change them if they find it just and reasonable, but must give reasons on the record (Clause 1).
  • In murder trials, juries can recommend a parole ineligibility period, and judges must consider this in setting the period (Clause 4).

• Judges, prosecutors, and defence counsel

  • Judges gain discretion to depart from statutory minimums and mandatory prohibition orders, with a duty to record reasons (Clause 1).
  • Written‑reasons requirement applies when imposing a minimum punishment or a parole ineligibility period as set by statute (Clause 1).
  • Court‑approved treatment or counselling programs no longer require Attorney General consent or provincial program approval; suitability is for the court to decide (Clause 2).
  • Judges must poll juries for recommendations on parole ineligibility in first- and second-degree murder cases and consider those recommendations (Clause 4).

• Program providers and community services

  • Courts may refer people to treatment or counselling programs they deem appropriate, not only provincially approved programs. This could broaden referrals to community‑based services under court supervision (Clause 2).

Expenses#

Estimated net cost: Data unavailable.

• No fiscal note identified. Data unavailable.
• No direct appropriations or fees are created in the bill text (Clauses 1–4).
• Possible system effects (unquantified):
  • Fewer or shorter custodial sentences could reduce incarceration costs; more community orders and court‑supervised programs could shift costs to supervision and services. Data unavailable.
  • Added judicial time to consider alternatives and write reasons; potential impacts on court workload. Data unavailable.
  • Training and guidance for judges and counsel on new discretion and reasons requirements. Data unavailable.

Proponents' View#

• Restores judicial discretion to avoid disproportionate sentences by allowing departures from mandatory minimums when just and reasonable, aligning with proportionality in sentencing (Clause 1; Preamble).
• Helps address systemic over‑incarceration of Indigenous Peoples and the unique circumstances of women and people with mental disabilities by enabling tailored sentences (Preamble).
• Requires judges to consider all alternatives before imposing a minimum and to give written reasons, which supporters say increases transparency and careful use of severe penalties (Clause 1).
• Lets courts tailor or decline mandatory prohibition orders to fit risk and rehabilitation needs, reducing automatic penalties that may not suit the case (Clause 1).
• Speeds access to rehabilitative programs by removing Attorney General consent and letting courts select appropriate treatment or counselling, after considering victim interests (Clause 2).
• Brings community input into parole ineligibility decisions for murder by requiring and considering jury recommendations, which proponents argue can improve legitimacy of outcomes (Clause 4).

Opponents' View#

• Effectively makes mandatory minimums non‑binding, which may create inconsistent sentences across courts and reduce predictability that Parliament intended (Clause 1).
• Allowing departures from mandatory minimums and from mandatory prohibition orders could, in some cases, reduce deterrence or community safety if serious offences receive lower penalties or fewer restrictions (Clause 1).
• New discretion to vary parole ineligibility for first‑degree murder departs from uniform 25‑year rules, raising concerns about unequal treatment and potential legal challenges or appeals (Clause 4).
• Removing Attorney General consent and provincial approval for treatment programs may lead to uneven program quality and oversight, with varied standards across courts (Clause 2).
• Requirements to consider all alternatives and to provide written reasons may lengthen sentencing hearings and increase judicial workload, affecting court efficiency (Clause 1).