Pubdate: Sat, 16 Apr 2016
Source: Toronto Star (CN ON)
Copyright: 2016 The Toronto Star
Author: Jordan Press
Page: A14


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 pretrial 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.

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 "cold-blooded
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. The Supreme Court
also 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.
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