Pubdate: Sat, 16 Apr 2016
Source: Sun Times, The (Owen Sound, CN ON)
Copyright: 2016 Owen Sound Sun Times
Author: Jordan Press
Page: A7


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

"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?"
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