Pubdate: Sat, 16 Apr 2016
Source: Packet & Times (CN ON)
Copyright: 2016 Orillia Packet and Times
Author: Jordan Press
Page: A5


Supreme Court Rules Two Tough-On-Crime Laws Unconstitutional

OTTAWA - The Supreme Court of Canada has struck down two federal laws 
from the previous Conservative government's tough-on-crime agenda, 
ruling both to be unconstitutional.

The decisions mean an end to rules for minimum sentences for specific 
drug crime convictions and limits on credit for pre-trial detention 
in certain conditions where bail is denied, giving trial judges more 
leeway in how they deal with offenders.

In both decisions, the top court said Parliament has the right to set 
laws to maintain public safety, but the rules should not be so overly 
broad that they capture offenders whose incarceration would benefit 
neither themselves nor the public.

Speaking in Waterloo, Ont., Prime Minister Justin Trudeau said his 
government is reviewing the laws around mandatory minimum sentences.

"There are situations where mandatory minimums are relevant," Trudeau said.

"The Liberal party of the past in government brought in mandatory 
minimums around serious crimes like murder, but at the same time 
there is a general sense, reinforced by the Supreme Court decision 
today, that mandatory minimums brought in by the previous government 
in a number of cases went too far. This is what we are reflecting on."

In a 6-3 ruling, the high court said a mandatory, one-year minimum 
sentence for a drug crime when the offender has a similar charge on 
their record constitutes cruel and unusual punishment, a violation of 
section 12 of the Charter of Rights and Freedoms. Only twice before 
has the court found mandatory minimums to violate that particular 
section of the Charter.

The majority ruled that mandatory minimums in this instance cast too 
wide a net and catch conduct that can range from a "coldblooded 
trafficker of hard drugs for profit" to someone who shares a small 
amount of marijuana with friends. Chief Justice Beverley McLachlin, 
writing for the majority, said that in the latter instance "most 
Canadians would be shocked to find that such a person could be sent 
to prison for one year."

The case came about after Joseph Ryan Lloyd was convicted in 
September 2014 of three counts of possessing crack, methamphetamine 
and heroin for the purpose of trafficking in Vancouver's Downtown Eastside.

An addict, Lloyd also had a 2012 trafficking charge.

The provincial court ruled that while the appropriate sentence for 
Lloyd was one year, the mandatory minimum sentence constituted cruel 
and unusual punishment and violated the charter.

Raji Mangat, director of litigation for the West Coast Women's Legal 
Education and Action Fund, which intervened in the case, said the 
Supreme Court's decision righted a wrong by giving judges more leeway 
in sentencing.

"Those sentencing judges, this is what they do day in and day out," 
Mangat said. "They have the expertise to be able to decide what is 
going to be a fit and appropriate sentence and we think that that 
discretion should stay with the judges."

The Supreme Court also unanimously agreed to strike down provisions 
passed in 2009 that prohibited a trial judge from giving more than 
one-for-one credit for pretrial detention if a justice of the peace 
denied bail to the person because of a previous conviction.

That's what happened in the case of Hamidreza Safarzadeh Markhali, of 
Pickering, who was arrested in November 2010 on drug and weapons charges.

He was awarded extra pretrial credit by his trial judge and the 
Ontario Court of Appeal agreed, noting that three offenders with the 
same criminal records and given the same sentence could effectively 
end up serving substantially different amounts of time depending on 
whether they received bail.

Safarzadeh-Markhali has since been deported to Iran.

The Supreme Court found the law was overly broad and would capture 
offenders who, for instance, might have been convicted for failing to 
appear in court.

Safarzadeh-Markhali's lawyer, Jill Presser, said the decision means 
thousands of people will serve less time in jail "by a factor of days 
to even years," many of whom couldn't get bail because of their 
circumstances or a lack of support.

Combined, she said, the decisions continue to dismantle the Harper 
era, tough-on-crime agenda.

"The question for Parliament now is do they want to rebuild the 
structure on solid constitutional grounds, or simply let it come down?"
- ---
MAP posted-by: Jay Bergstrom