Pubdate: Sun, 17 Apr 2016
Source: Edmonton Sun (CN AB)
Copyright: 2016 Canoe Limited Partnership.
Author: Lorne Gunter
Page: 5


Striking Down Canada's Mandatory Minimum Drug Sentence Was Not Necessary

The Supreme Court got it wrong.

Not spectacularly wrong. After all, this is no longer the court of 
former Chief Justice Antonio Lamer. During Lamer's tenure (1990 to 
2000), the court frequently made up new laws and new rights out of thin air.

In one especially appalling decision - the 1999 Marshall case from 
Nova Scotia - the Lamer court so badly misinterpreted the history of 
the early Maritime treaties with First Peoples that it was forced to 
issue a formal correction of its ruling.

Oops, the majority said, we got the whole thing upside down and 
backwards, but we're sticking with our decision to let indigenous 
people fish commercially out-of-season anyway.

So when I say the majority on the current McLachlin court erred in 
its decision Thursday to strike down mandatory minimum sentences for 
drug offences, I don't mean they royally messed up the legal 
principles the way the previous Lamer court might have.

The case revolves around the sentencing of Joseph Ryan Lloyd, an 
addict and small-time drug pedlar in Vancouver's Downtown Eastside, 
the saddest, most blighted neighbourhood in the country. It is home 
to as many homeless people and career substance abusers as anywhere 
on the continent.

Lloyd was convicted in September 2014 of three counts of possessing 
less than 10 grams of crack, meth and heroin for the purposes of 
trafficking. Because he had an earlier conviction for similar 
offences, just two years before this one, the former Tory 
government's Safe Streets and Communities Act mandated the trial 
judge had to sentence Lloyd to a minimum one year in jail.

The B.C. judge deemed one year to be the proper length of sentence, 
but ruled the fact that one year was the mandatory minimum was a 
violation of Lloyd's Charter rights. (Talk about debating how many 
angels can dance on the head of pin.)

The B.C. appeals court disagreed. It said the fact the trial judge 
gave Lloyd the same jail term as required by the Tory law showed the 
mandatory minimum was not cruel and unusual punishment.

But in Thursday's ruling, the Supreme Court agreed with the trial judge.

Writing for the majority, Chief Justice Beverley McLachlin said that 
while Parliament may be justified in setting mandatory minimums in 
many cases, in this case a law designed to send away "a professional 
drug dealer who engages in the business of dangerous drugs for profit 
(and) who is in possession of a large amount of drugs," ended up 
ensnaring a troubled man who shared a small amount of his personal 
stash with a street friend.

McLachlin's sentiment in noble. Lloyd probably needs rehab more than 

But as the minority (which included Alberta justice Russell Brown) 
pointed out in the 6-3 decision, it is not as if the law has no 
flexibility in it, at all.

The mandatory minimum, according to the minority, comes into effect 
only for repeat offenders "who traffic in serious drugs and who have 
a prior related conviction or served a prison term for a drug offence 
within the past 10 years."

It excludes people whose prior is for simple possession. It applies 
only to repeat traffickers of dangerous drugs. And even they can 
avoid the mandatory sentence if they "successfully complete a 
treatment program between conviction and sentencing," which Lloyd failed to do.

The most objectionable part of the majority's ruling, however, is 
that it appears the justices went looking for a case that gave them 
an excuse to overturn the law.

Lloyd deserved a year in jail. He got a year in jail. But, oh yeah, 
that's unconstitutional.

That's wrong.
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MAP posted-by: Jay Bergstrom