Pubdate: Sat, 16 Apr 2016
Source: Globe and Mail (Canada)
Copyright: 2016 The Globe and Mail Company
Author: Sean Fine
Page: 12


The Supreme Court of Canada has sounded a death knell for mandatory 
minimum jail sentences passed by the former Conservative government, 
indirectly sending a message to the Liberal government to get on with 
the job of undoing Harper-era laws that put judges in a sentencing 

In two separate rulings that stress the importance of judges' 
discretion, the court struck at the heart of former prime minister 
Stephen Harper's crime agenda.

In the first one, it said a mandatory minimum sentence of one year 
for drug traffickers who have a previous trafficking conviction is 
cruel and unusual punishment, and therefore unconstitutional.

The ruling went on to say that other mandatory minimum sentences are 
similarly vulnerable to being struck down. The former Conservative 
government created 60 minimum sentences for gun, drug, sex and other 
offences. Canada has the second most minimums in the world, after the 
United States, according to the Criminal Lawyers' Association.

"The reality is this," Chief Justice Beverley McLachlin, author of 
both rulings, wrote for the majority in a 6-3 decision. "Mandatory 
minimum sentences that, as here, apply to offences that can be 
committed in various ways, under a broad array of circumstances and 
by a wide range of people are vulnerable to constitutional challenge."

In a second case, this one unanimous, it struck down a provision of 
the Truth in Sentencing Act that said people denied bail because of a 
criminal record cannot be given extra credit for the time in custody 
before trial - that is, no more than one day credit for each day 
served. Judges routinely give those awaiting trial 1.5 days credit 
for each day served, after a previous Supreme Court ruling allowed 
them to do so, over the objections of the Harper government.

The effect of the rulings will be large. The Truth in Sentencing 
ruling will mean thousands of people each year will serve less time 
in jail, Jill Presser, a Toronto lawyer, said. And if the Trudeau 
government fails to do something about mandatory minimums, it will be 
faced with defending laws passed by another government, and with poor 
odds of winning in court.

Justice Minister Jody Wilson-Raybould said in a statement that the 
government supports mandatory minimums to some extent, as long as 
they are consistent with the Charter of Rights and Freedoms, and that 
Prime Minister Justin Trudeau has asked her to do a comprehensive 
review of changes to the justice system. That review will include the 
use of mandatory minimums, she said.

"The government supports the use of mandatory minimum penalties for 
the most serious crimes, and crucially, only where they are 
consistent with the Charter."

Rob Nicholson, the Conservative Party's justice critic, said the 
party was disappointed in the rulings. "Canadians tend to lose faith 
in the criminal justice system when they feel that the punishment 
does not fit the crime. We would hope the Liberal government's 
response to today's ruling would reflect Canadians' overall desire to 
get tough on criminals, especially drug dealers."

The mandatory-minimum ruling came in a case involving an addict, 
Joseph Lloyd, 25, living in Vancouver's impoverished Downtown 
Eastside, who sold drugs to his fellow addicts to support his habit. 
The court said that while a year in jail was a fair sentence for him, 
the mandatory minimum was cruel and unusual punishment on the basis 
of "reasonable hypotheticals" - such as a case in which addicts were 
merely sharing their drugs with one another.

It was the same legal argument - using hypothetical cases to strike 
down a three-year minimum sentence for illegal gun possession - that 
sparked a stinging dissent from three judges last year, written by 
Justice Michael Moldaver (who this time was in the majority). The 
three dissenting judges on Friday - Justices Richard Wagner, Clement 
Gascon and Russell Brown - wrote an unusual, jointly authored 
dissent, suggesting the desire for a stronger collective objection 
than an individually written dissent might achieve.

Despite the presence of Justice Brown - a vociferous, sharp-edged 
blogger when he was a law professor at the University of Alberta - 
their dissent was mildly worded. They rejected the shared-drugs 
example as imaginary, and said the court has struck down mandatory 
minimums only twice before. They reminded the majority of perhaps the 
most notorious mandatory-minimum case in Canadian history - life with 
no parole for at least 10 years for Robert Latimer in 2001, after 
being convicted of second-degree murder in the mercy killing of his 
disabled daughter. In that case, the court rejected Mr. Latimer's 
challenge to the minimum sentence.
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MAP posted-by: Jay Bergstrom