Our concern with regard to the hybrid offences is that it essentially turns the Crown into the judge. If there's a plea or if the person has been convicted, the Crown will determine what defence will be based on, whether the Crown decides to proceed summarily or by indictment. The problem with that is that crowns make those decisions for all sorts of reasons. Often for the right reasons perhaps, but also sometimes for wrong reasons. Normally, without a minimum sentence, it really doesn't matter whether the Crown chooses to go summarily or by indictment because ultimately the judge gets to decide what the sentence will be. The Crown can argue for a higher sentence by indictment, but all options are available to the judge. But this particular legislation would remove that. So the Crowns in some cases, if they want to be sympathetic or give a break to an accused person, will proceed summarily. If they don't want that to happen, they'll proceed by indictment. Of course, the consequences would be quite severe if they proceeded by indictment because it would be a minimum three-year sentence.
As you said, the general difficulty with removing discretion from judges means that consideration of paragraph 718.2(e) in Gladue is removed. It's a very different consideration for a judge: do I want to give this person a minimum sentence of four years, which is the minimum in minimum sentence, or six years? Then it could still apply. But that's not nearly as significant a discussion as to whether the person should be incarcerated at all and whether a conditional sentence might be a better fit.