Pubdate: Sat, 07 Jun 2014
Source: Vancouver Sun (CN BC)
Copyright: 2014 Postmedia Network Inc.
Contact:  http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Ian Mulgrew
Page: A15
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

THE WRONG CASE FOR A CHALLENGE

Legal Appeal: Chronic Offender a Poor Choice to Test Minimum Sentence Provision

B.C.'s highest bench has given part of the Conservative Government's 
tough-on-crime agenda a judicial nod of approval by refusing to hear 
a constitutional challenge to mandatory minimum drug sentences.

Although Ottawa's anti-crime legislation has been badly bruised in 
the courts, the three-justice Court of Appeal panel cast a gimlet eye 
at those opposing a 12-month jail sentence for anyone with a recent 
drug prior found guilty of trafficking hard drugs.

The court on Friday upped to 18 months the one-year sentence of the 
chronic offender whose case spurred the constitutional challenge.

"The ultimate issue is the fitness of the sentence," Justice Harvey 
Groberman said reading the decision supported by his colleagues, 
Justices Pamela Kirkpatrick and Mary Newbury. "I am of the view the 
minimum sentence provision has no impact on (this case) .... (but) 
the sentence is unfit and I would substitute an effective sentence of 
18 months."

Unlike the mandatory minimum sentencing regimes for gun crimes and 
sex crimes, the justices said the "inflationary effect on sentences" 
those schemes created that offended the courts wasn't present in the 
changes to the Controlled Drugs and Substances Act.

They were unwilling to listen to arguments based on a hypothetical 
offender in hypothetical circumstances for whom the mandatory minimum 
sentence would be grossly disproportionate.

Before Paul Riley of the Public Prosecution Service could even begin 
speaking at the start of the appeal on Thursday, Kirkpatrick pulled 
the battery of lawyers present up short.

"Mr. Riley, before we start, I don't like to throw a wrench into 
counsels' submissions - or maybe I do," she said.

"But we are concerned," Kirkpatrick continued, "about the prospect of 
deciding this constitutional challenge in a case in which the result 
is very unlikely to make any difference whatsoever to the actual 
sentence that will be imposed ... the constitutionality of the 
statutory minimum sentence is irrelevant ..."

The lawyers were taken aback.

Aside from representatives for the Crown and defendant, a handful of 
lawyers for the Pivot Legal Society and B.C. Civil Liberties 
Association were hoping to persuade the court the law unfairly and 
disproportionately affected aboriginal people, sex trade workers and addicts.

Matthew Nathanson, lawyer for the BCCLA, said society's most 
vulnerable were at risk under the mandatory minimum system.

The judges sat stony faced.

"We are concerned about judicial economy and restraint and wonder if 
deciding the constitutional challenge, with all that entails, on the 
basis of one or more hypotheticals that are essentially irrelevant to 
the facts here is something we should do," Justice Kirkpatrick said.

The panel sent the lawyers off for a 20-minute huddle to consider two 
questions - was the trial judge correct in assuming the new law would 
lengthen the appropriate sentence, and was the sentence of 12 months fitting.

When they came back, Groberman peppered them with questions and the 
unanimous ruling made clear the panel found the answers were wanting.

This was obviously not the right case.

The appeal involved a 25-year-old Vancouver addict and chronic 
offender who was caught with small amounts of heroin, rock cocaine 
and methamphetamines.

Forget one recent prior, Joseph Ryan Lloyd had 21 convictions under 
his belt when arrested in March 2013 peddling his bike along a 
downtown sidewalk.

He had been released three weeks earlier and, along with the drugs 
packaged for sale, he was carrying a knife, in violation of his 
probation order.

While he was awaiting trial on this charge, he was charged with a 
handful of other offences.

Provincial Court Judge Joseph Galati convicted him in February of 
trafficking and sentenced Lloyd to a year in jail - but not because 
he was imposing the mandatory minimum.

In sentencing, Galati declared the law "unconstitutional."

Justice Groberman said the lower court judge didn't have the 
jurisdiction to do that - all he could do was declare the law had no 
force or effect under these particular circumstances.

He set aside the declaration and the BCCLA's point that the court 
should consider the constitutional question of behalf of those who 
don't have the wherewithal to bring such a challenge.

Justice Groberman said in the context of a criminal prosecution that 
was not a good idea and the bottom line was the law didn't affect 
Lloyd: "I agree with the trial judge's assessment ... (regardless of 
the mandatory minimum) he would not have received a sentence of less 
than a year, anything less would have been manifestly unfit."

Before the new law, Justice Groberman noted, the range of sentences 
was 12-18 months for low-level dealers with relevant past convictions 
who sold drugs to support their own addictions.

"This is not a situation in which the concept of inflationary floor 
is applicable," he said. "There were a number of aspects of this case 
that demanded a sentence beyond the low-end of the range."
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