An Act to amend the Criminal Code (independence of the judiciary)

Summary#

S-208, An Act to amend the Criminal Code (independence of the judiciary), is a proposed bill to amend the Criminal Code. The supplied text shows proposed changes, not provisions in force; it does not give the bill’s current status. Its stated goal is to support proportionate sentencing and avoid disproportionate punishment.

• Courts would have discretion to set punishment despite limits in an enactment, including a declared minimum punishment.
• Before imposing a minimum prison punishment or parole-ineligibility period under a federal law, a court would have to consider all alternatives and decide that none is just and reasonable. It would also have to give written reasons.
• A court could delay sentencing, with the person’s consent, so they can attend a treatment or counselling program the court considers appropriate. The proposed text removes the Attorney General’s consent and provincial program-approval requirements.
• For first- or second-degree murder convictions by jury, the judge would have to ask the jury for a recommendation about parole eligibility and consider any recommendation, subject to section 745.3.
• The bill does not itself remove all minimum punishments or guarantee a different sentence or earlier parole eligibility.

What it means for you#

• People being sentenced: A judge could depart from a punishment set by an enactment, including a minimum. That is discretion, not a right to a lower punishment. Before imposing a minimum prison punishment or parole-ineligibility period under a federal law, the judge would have to consider alternatives, find none just and reasonable, and give written reasons.
• People seeking treatment or counselling before sentencing: A judge could delay sentencing for a program the judge considers appropriate, if the person consents and the judge considers the interests of justice and any victim. The bill does not require a delay or set out a program-application process.
• Victims: Their interests would remain a required consideration when a court decides whether to delay sentencing.
• People convicted of murder by a jury: The jury would be asked for a parole-eligibility recommendation. The judge must consider a recommendation but is not required by this text to follow it. The proposed question refers to the otherwise-required 25-year or 10-year period.

Money#

No publicly available information.

• The text requires written reasons in some sentencing decisions but gives no estimate of the resulting court workload or cost.
• It does not specify new funding or staffing.

What is unclear#

• The bill does not define what counts as “all available options” or when an alternative is “just and reasonable.”
• It does not explain how the new sentencing discretion would interact with other limits or sentencing rules.
• It does not set criteria for choosing treatment or counselling programs, or explain how access to programs would work.
• The effect of section 745.3 on the proposed murder-parole process cannot be checked because that section is not included in the supplied material.
• The text gives no start date. The supplied excerpts show some existing wording, but do not provide the full current Criminal Code for comparison.

Case for#

• The bill appears intended to let judges avoid a minimum punishment when they find another sentence is just and reasonable.
• Requiring judges to consider alternatives and give written reasons could make their decisions clearer.
• Giving courts discretion over treatment or counselling programs could allow a court to choose a program it considers suitable for the circumstances.
• Considering a jury’s parole-eligibility recommendation would add that recommendation to the judge’s decision-making.

Case against#

• The proposed discretion to set punishment despite limits in an enactment is broad. The bill does not spell out detailed criteria for how courts should use it.
• Different courts could reach different conclusions about which alternatives are available or just and reasonable; the bill does not set out a process for resolving those differences.
• The bill provides no estimate of the added court workload from considering alternatives and preparing written reasons.
• Asking juries for recommendations on parole eligibility could add another consideration to a decision the judge must make, but the bill does not explain how much weight the recommendation should receive.