Pubdate: Wed, 20 Jan 2016
Source: Toronto Star (CN ON)
Copyright: 2016 The Toronto Star
Author: Roger Love
Page: A13


The Supreme Court of Canada will soon decide the fate of the mandatory
one-year jail sentence for trafficking certain drugs. The mandatory
minimum has come under fire by civil liberty groups for constituting
cruel and unusual punishment, arbitrary imprisonment and restricting
security of the person contrary to the Canadian Charter of Rights and

The case at issue concerns Ryan Joseph Lloyd, a drug addict in his
mid-20s, who lived in Vancouver's notorious Downtown Eastside. He was
found in possession of less than 10 grams of three drugs, enough to be
charged with three counts of possession for the purpose of
trafficking. He was eventually convicted and faced no less than 12
months in jail because he had a prior conviction for trafficking
within the last 10 years. The British Columbia Court of Appeal
sentenced him to 18 months. The appeal of this sentence has reached
our top court, in part because it sparked debate over how our courts
deal with markers of disadvantage, including addiction, poverty and

Seven public interest groups including the African Canadian Legal
Clinic, the West Coast Women's Legal Education and Action Fund, and
the Union of British Columbia Indian Chiefs, among others, argue that
an offender who lives in poverty, has faced systemic barriers and
suffers from an addiction disorder should not be automatically
subjected to a one-year sentence upon conviction. In fact, prior to
the enactment of the mandatory minimum sentence, judges were free to
take social disadvantage into account and prescribe punishments that
fit the crime.

Offenders like Mr. Lloyd are now casualties on the battlefield of the
perpetual war on drugs which targets non-violent street level users
instead of kingpins. Our courts are routinely filled with a revolving
door of low-level offenders, whose crimes are often triggered by their
addiction and poverty. It is no secret that a disproportionate number
of these offenders are black. Continuing to direct our resources
toward these offenders will do little to keep our communities safe or
reduce the number of drug related crimes. A lesson we should have
learned from our battle tested counterparts in the United States.

The United States has a lengthy history with mandatory minimum
sentences, and imposing harsh sentences as part of their widely
derided war on drugs. In the U.S., targeting addicts and low-level
dealers has helped to skyrocket incarceration rates and perpetuate
cyclical poverty. This is best demonstrated by looking at the impact
of the war on drugs on the black community. South of the border,
incarceration rates for black offenders ballooned when tougher
sentences for drug crimes were ushered in under the Regan
administration in the 1980s. As the war crept north of the border,
black Canadians suffered a similar fate. From 1986 to 1993 the drug
trafficking incarceration rates for black offenders exploded by 1,164
per cent. The disproportionate number of black males and females
incarcerated in federal and provincial institutions has continued to
grow in the new millennium as the war enters its fourth decade.

It is tempting to assume that the higher incarceration rates for the
black and Aboriginal communities reflect their heightened
participation in the drug trade. But nothing could be further from the
truth. Research on the Canadian war on drugs by Professor Akwatu
Khenti revealed that the African Canadian community is not more likely
to engage in drug use than other communities, yet they have been the
overwhelming target of law enforcement. Since the cocaine-fuelled
1980s the perception that a drug dealer looks like a young black male
has fuelled police enforcement tactics, and our legislature's response
to drug crimes.

While drug treatment courts, which exist to provide alternatives to
incarceration for those who facing criminal charges, have thus far
been the best counterpunch to heavy handed law enforcement, they too
have missed their mark. A Department of Justice report on these courts
in Toronto and Ottawa found that they have failed to attract or
graduate offenders from marginalized communities, in particular
African Canadians, women, and aboriginals. All of these groups stand
to benefit the most from the treatment orders and suspended sentences
drug courts offer as alternatives to jail time.

While sweeping drug raids on poor communities appear to bring relief,
it's time we pay attention to the evidence. Prolonged sentences won't
cure addiction, anti-black racism and the social marginalization that
contribute to drug-related crimes. Public resources must be directed
toward equipping our courts and community based programs with the
means to create culturally responsive services that can cure
addiction, and not simply punish an offender's behaviour. Until then,
the soldiers in the war on drugs will continue to shoot blanks.

Roger Love is advice counsel at the African Canadian Legal Clinic.
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