Pubdate: Sun, 17 Apr 2016
Source: Ottawa Sun (CN ON)
Copyright: 2016 Canoe Limited Partnership
Author: Jason Gilbert
Page: 9


By striking down mandatory minimum sentences for repeat drug
trafficking offences Friday, the Supreme Court of Canada sent
Parliament a clear message: Mandatory minimums that apply universally
to all offenders, regardless of the circumstances, will not survive
constitutional scrutiny.

The specific sentencing provision at issue in Joseph Ryan Lloyd's
appeal was a section of Canada's Controlled Drugs and Substances Act
that mandated a one-year minimum jail sentence for drug trafficking
offences where the offender had been convicted of another trafficking
offence within the previous 10 years.

This was one of a series of mandatory minimum narcotics sentences
passed by the federal Conservatives in 2012, and the Supreme Court
only dealt with the constitutionality of this particular provision in
the Lloyd appeal. As a practicing criminal defence lawyer, I can tell
you that this provision has been by far the most commonly applied of
the drug-related mandatory minimums. And its indiscriminate,
all-encompassing application was precisely what troubled the court.

Like so many of my own clients, Lloyd was addicted to several drugs,
including cocaine, methamphetamines and heroin, and when he
trafficked, he did so to support his own habit.

The original B.C. trial judge determined that because of Lloyd's prior
record for drug offences, 12-18 months in jail was the appropriate
sentence, with or without a mandatory minimum. However, the judge also
found that the mandatory minimum sentencing provision, requiring the
imposition of a one-year sentence simply because an offender had a
prior conviction for trafficking in the past 10 years, was

When the appeal came before the Supreme Court in January, a number of
advocacy groups were involved as interveners, including HIV and AIDS
groups, the Criminal Lawyers' Association of Ontario and civil
liberties groups. Clearly, this was an appeal that affected the lives
and well-being of some of the country's most vulnerable offenders,
including severe addicts and the physically and mentally ill.

Our country's highest court agreed with the trial judge. A mandatory
minimum sentence of one year in jail for every offender convicted of a
trafficking-related offence, regardless of the circumstances, and
merely because the offender has a prior conviction for a similar
offence in the previous 10 years, is unconstitutional.

The Supreme Court found that there were a number of foreseeable
circumstances where the mandatory minimum would violate a person's
constitutional guarantee against cruel and unusual punishment.

For example, a crack addict being sentenced for selling a small
quantity of his drug of choice would be subject to the one-year
minimum if he had also been convicted of sharing a small quantity of
marijuana nine years earlier.

Another example would be an addict who sold a small quantity of
narcotics, but by the time of sentencing, has completed substance
abuse treatment and has been clean and sober for several months. This
person would still face the mandatory one year in jail if they
happened to have a previous drug trafficking conviction in the past 10

The Supreme Court found that in circumstances like these, the
mandatory minimum sentence would be grossly disproportionate to the
offence and would outrage standards of decency. The mandatory minimum
would amount to cruel and unusual punishment, and is therefore

Chief Justice Beverley McLachlin, writing for the majority of the
court, said that mandatory minimum sentences that apply to crimes that
can be committed under a number of different circumstances, by a wide
range of offenders, with widely varying degrees of moral culpability,
will be vulnerable to constitutional challenge. If Parliament hopes to
sustain these penalties, then their reach should be narrowed so they
apply only to those offenders who merit such sentences.

The court suggested a solution built into mandatory minimum penalties
in other countries, which gives judges a residual discretion to go
below the proscribed minimum in exceptional cases, to avoid injustice
and unconstitutional punishments. This judicial discretion allows for
severe sentences for abhorrent offences, while avoiding
disproportionately harsh sentences in circumstances that aren't
deserving of them.

Gilbert is a criminal defence and child protection lawyer at Addelman 
Baum Gilbert.
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