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Bill C-5

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First Session, Forty-fourth Parliament,

70 Elizabeth II, 2021

HOUSE OF COMMONS OF CANADA

BILL C-5
An Act to amend the Criminal Code and the Controlled Drugs and Substances Act
FIRST READING, December 7, 2021

MINISTER OF JUSTICE
91043


SUMMARY

This enactment amends the Criminal Code and the Controlled Drugs and Substances Act to, among other things, repeal certain mandatory minimum penalties, allow for a greater use of conditional sentences and establish diversion measures for simple drug possession offences.

Available on the House of Commons website at the following address:
www.ourcommons.ca


1st Session, 44th Parliament,

70 Elizabeth II, 2021

HOUSE OF COMMONS OF CANADA

BILL C-5

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.‍S.‍, c. C-46

Criminal Code

2008, c. 6, s. 2

1 The portion of subsection 84(5) of the Criminal Code before paragraph (a) is replaced by the following:

Subsequent offences

(5) In determining, for the purpose of subsection 99(2), 100(2) or 103(2), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

1995, c. 39, s. 139; 2008, c. 6, s. 3(2)

2 Subsection 85(3) of the Act is replaced by the following:

Punishment

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable to imprisonment for a term of not Insertion start more than Insertion end 14 years.

1995, c. 39, s. 139

3 Subsection 92(3) of the Act is replaced by the following:

Punishment

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable to imprisonment for a term of not Insertion start more than Insertion end 10 years.

2008, c. 6, s. 8(2)

4 Paragraph 95(2)‍(a) of the Act is replaced by the following:

  • (a) is guilty of an indictable offence and liable to imprisonment for a term of not Insertion start more than Insertion end 10 years; or

1995, c. 39, s. 139

5 Paragraph 96(2)‍(a) of the Act is replaced by the following:

  • (a) is guilty of an indictable offence and liable to imprisonment for a term of not Insertion start more than Insertion end 10 years; or

2008, c. 6, s. 10

6 Subsection 99(3) of the Act is replaced by the following:

Punishment — other cases

(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not Insertion start more than Insertion end 10 years.

2008, c. 6, s. 11

7 Subsection 100(3) of the Act is replaced by the following:

Punishment — other cases

(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not Insertion start more than Insertion end 10 years.

2008, c. 6, s. 12

8 Subsection 103(2.‍1) of the Act is replaced by the following:

Punishment — other cases

(2.‍1) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not Insertion start more than Insertion end 10 years.

2014, c. 23, s. 3; 2019, c. 25, s. 34(F)

9 (1) Paragraph 121.‍1(4)‍(a) of the Act is replaced by the following:

  • (a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years; or

2014, c. 23, s. 3

(2) Subsection 121.‍1(5) of the Act is repealed.

2008, c. 6, s. 17

10 Paragraph 244(2)‍(b) of the Act is replaced by the following:

  • (b) in any other case, to imprisonment for a term of not Insertion start more than Insertion end 14 years.

2009, c. 22, s. 8

11 Paragraph 244.‍2(3)‍(b) of the Act is replaced by the following:

  • (b) in any other case, is liable to imprisonment for a term of not more than 14 years.

2008, c. 6, s. 32(1)

12 Paragraph 344(1)‍(a.‍1) of the Act is repealed.

2008, c. 6, s. 33(1)

13 Paragraph 346(1.‍1)‍(a.‍1) of the Act is repealed.

2012, c. 1, s. 34

14 (1) Paragraph 742.‍1(c) of the Act is replaced by the following:

  • (c) the offence is not an offence Insertion start under any of the following provisions: Insertion end

    • Start of inserted block

      (i) section 239, for which a sentence is imposed under paragraph 239(1)‍(b) (attempt to commit murder),

    • (ii) section 269.‍1 (torture), or

    • (iii) section 318 (advocating genocide); and

      End of inserted block

2012, c. 1, s. 34

(2) Paragraphs 742.‍1(e) and (f) of the Act are repealed.

1996, c. 19

Controlled Drugs and Substances Act

2012, c. 1, s. 39(1); 2017, c. 7, s. 3(2)‍(F); 2018, c. 16, s. 196(1)

15 Paragraph 5(3)‍(a) of the Controlled Drugs and Substances Act is replaced by the following:

  • (a) if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;

2012, c. 1, s. 40

16 Paragraphs 6(3)‍(a) and (a.‍1) of the Act are replaced by the following:

  • (a) if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;

2012, c. 1, s. 41(1); 2018, c. 16, s. 197(1)

17 (1) Paragraphs 7(2)‍(a) and (a.‍1) of the Act are replaced by the following:

  • (a) if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;

2012, c. 1, s. 41(2); 2018, c. 16, s. 197(3)

(2) Subsection 7(3) of the Act is repealed.

2012, c. 1, s. 42

18 Section 8 of the Act and the heading before it are repealed.

2017, c. 7, s. 7(1)‍(F)

19 (1) The portion of subsection 10(2) of the Act before paragraph (a) is replaced by the following:

Factors to take into consideration

(2) If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

2012, c. 1, s. 43(2)

(2) Subsection 10(5) of the Act is repealed.

20 The Act is amended by adding the following after section 10:

Start of inserted block

PART I.‍1 
Evidence-based Diversion Measures

End of inserted block Start of inserted block
Principles
End of inserted block
Declaration of principles
Start of inserted block

10.‍1 The following principles apply in this Part:

  • (a) problematic substance use should be addressed primarily as a health and social issue;

  • (b) interventions should be founded on evidence-based best practices and should aim to protect the health, dignity and human rights of individuals who use drugs and to reduce harm to those individuals, their families and their communities;

  • (c) criminal sanctions imposed in respect of the possession of drugs for personal use can increase the stigma associated with drug use and are not consistent with established public health evidence;

  • (d) interventions should address the root causes of problematic substance use, including by encouraging measures such as education, treatment, aftercare, rehabilitation and social reintegration; and

  • (e) judicial resources are more appropriately used in relation to offences that pose a risk to public safety.

    End of inserted block
Start of inserted block
Warnings and Referrals
End of inserted block
Warnings and referrals
Start of inserted block

10.‍2 (1) A peace officer shall, instead of laying an information against an individual alleged to have committed an offence under subsection 4(1), consider whether it would be preferable, having regard to the principles set out in section 10.‍1, to take no further action, to warn the individual or, with the consent of the individual, to refer the individual to a program or to an agency or other service provider in the community that may assist the individual.

End of inserted block
Subsequent charges not invalidated
Start of inserted block

(2) The failure of a peace officer to consider the options set out in subsection (1) does not invalidate any subsequent charges laid against the individual for the offence.

End of inserted block
Prosecution — limits
Start of inserted block

10.‍3 A prosecution may be commenced or continued against an individual alleged to have committed an offence under subsection 4(1) only if, having regard to the principles set out in section 10.‍1, the prosecutor is of the opinion that the use of a warning or referral under section 10.‍2, or of alternative measures as defined in section 716 of the Criminal Code, is not appropriate, and a prosecution is appropriate in the circumstances.

End of inserted block
Record of warning or referral
Start of inserted block

10.‍4 The police force to which a peace officer referred to in section 10.‍2 belongs may keep a record of any warnings or referrals relating to individuals alleged to have committed an offence under subsection 4(1).

End of inserted block
Evidence of warning or referral not admissible
Start of inserted block

10.‍5 Evidence that an individual has received a warning or referral mentioned in subsection 10.‍2(1), evidence that a peace officer has taken no further action in respect of an offence under subsection 4(1) and evidence of the offence are inadmissible for the purpose of proving prior offending behaviour in any proceedings before a court in respect of the individual.

End of inserted block
Published under authority of the Speaker of the House of Commons


EXPLANATORY NOTES

Criminal Code
Clause 1: Relevant portion of subsection 84(5):

(5) In determining, for the purpose of subsection 85(3), 95(2), 99(2), 100(2) or 103(2), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:

Clause 2: Existing text of subsection 85(3):

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

  • (a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and

  • (b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.

  • (c) [Repealed, 2008, c. 6, s. 3]

Clause 3: Existing text of subsection 92(3):

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable

  • (a) in the case of a first offence, to imprisonment for a term not exceeding ten years;

  • (b) in the case of a second offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; and

  • (c) in the case of a third or subsequent offence, to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of two years less a day.

Clause 4: Relevant portion of subsection 95(2):

(2) Every person who commits an offence under subsection (1)

  • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of

    • (i) in the case of a first offence, three years, and

    • (ii) in the case of a second or subsequent offence, five years; or

Clause 5: Relevant portion of subsection 96(2):

(2) Every person who commits an offence under subsection (1)

  • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or

Clause 6: Existing text of subsection 99(3):

(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.

Clause 7: Existing text of subsection 100(3):

(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.

Clause 8: Existing text of subsection 103(2.‍1):

(2.‍1) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.

Clause 9: (1) Relevant portion of subsection 121.‍1(4):

(4) Every person who contravenes subsection (1)

  • (a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years and, if the amount of tobacco product is 10,000 cigarettes or more or 10 kg or more of any other tobacco product, or the amount of raw leaf tobacco is 10 kg or more,

    • (i) in the case of a second offence, to a minimum punishment of imprisonment for a term of 90 days,

    • (ii) in the case of a third offence, to a minimum punishment of imprisonment for a term of 180 days, and

    • (iii) in the case of a fourth or subsequent offence, to a minimum punishment of imprisonment for a term of two years less a day; or

(2) Existing text of subsection 121.‍1(5):

(5) For the purpose of determining whether a convicted person has committed a second or subsequent offence, an offence under this section for which the person was previously convicted is considered to be an earlier offence whether it was prosecuted by indictment or by way of summary conviction proceedings.

Clause 10: Relevant portion of subsection 244(2):

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable

  • .‍.‍.  

  • (b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years.

Clause 11: Relevant portion of subsection 244.‍2(3):

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and

  • .‍.‍.  

  • (b) in any other case, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years.

Clause 12: Relevant portion of subsection 344(1):

344 (1) Every person who commits robbery is guilty of an indictable offence and liable

  • .‍.‍.  

  • (a.‍1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

Clause 13: Relevant portion of subsection 346(1.‍1):

(1.‍1) Every person who commits extortion is guilty of an indictable offence and liable

  • .‍.‍.  

  • (a.‍1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

Clause 14: (1) and (2) Relevant portion of section 742.‍1:

742.‍1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.‍3, if

  • .‍.‍.  

  • (c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;

  • .‍.‍.  

  • (e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that

    • (i) resulted in bodily harm,

    • (ii) involved the import, export, trafficking or production of drugs, or

    • (iii) involved the use of a weapon; and

  • (f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:

    • (i) section 144 (prison breach),

    • (ii) section 264 (criminal harassment),

    • (iii) section 271 (sexual assault),

    • (iv) section 279 (kidnapping),

    • (v) section 279.‍02 (trafficking in persons — material benefit),

    • (vi) section 281 (abduction of person under fourteen),

    • (vii) section 333.‍1 (motor vehicle theft),

    • (viii) paragraph 334(a) (theft over $5000),

    • (ix) paragraph 348(1)‍(e) (breaking and entering a place other than a dwelling-house),

    • (x) section 349 (being unlawfully in a dwelling-house), and

    • (xi) section 435 (arson for fraudulent purpose).

Controlled Drugs and Substances Act
Clause 15: Relevant portion of subsection 5(3):

(3) Every person who contravenes subsection (1) or (2)

  • (a) if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and

    • (i) to a minimum punishment of imprisonment for a term of one year if

      • (A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.‍1(1) of the Criminal Code,

      • (B) the person used or threatened to use violence in committing the offence,

      • (C) the person carried, used or threatened to use a weapon in committing the offence, or

      • (D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or

    • (ii) to a minimum punishment of imprisonment for a term of two years if

      • (A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,

      • (B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or

      • (C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;

Clause 16: Relevant portion of subsection 6(3):

(3) Every person who contravenes subsection (1) or (2)

  • (a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if

    • (i) the offence is committed for the purposes of trafficking,

    • (ii) the person, while committing the offence, abused a position of trust or authority, or

    • (iii) the person had access to an area that is restricted to authorized persons and used that access to commit the offence;

  • (a.‍1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;

Clause 17: (1) Relevant portion of subsection 7(2):

(2) Every person who contravenes subsection (1)

  • (a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case;

  • (a.‍1) if the subject matter of the offence is a substance included in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment

    • (i) for a term of one year if the production is for the purpose of trafficking, or

    • (ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply;

(2) Existing text of subsection 7(3):

(3) The following factors must be taken into account in applying paragraphs (2)‍(a) and (a.‍1):

  • (a) the person used real property that belongs to a third party in committing the offence;

  • (b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area;

  • (c) the production constituted a potential public safety hazard in a residential area; or

  • (d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.

Clause 18: Existing text of the heading and section 8:
Notice

8 The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General’s intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.

Clause 19: (1) Relevant portion of subsection 10(2):

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(2) Existing text of subsection 10(5):

(5) If the offender successfully completes a program under subsection (4), the court is not required to impose the minimum punishment for the offence for which the person was convicted.

Clause 20: New.

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