In two rulings written by Chief Justice Beverley McLachlin, the Supreme Court has struck down laws that go to the heart of the former Conservative government’s tough crime agenda – a one-year, mandatory minimum sentence for repeat drug traffickers and a limit on who can get extra credit for time served in custody before trial.
“At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of drugs, and who has been convicted many times for similar offences,” Chief Justice McLachlin wrote in one case. “At the other end of the range stands the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before. Most Canadians would be shocked to find that such a person could be sent to prison for one year.”
The two laws were passed by the previous Conservative government – the Truth in Sentencing Act, which limits credit for time served, and a mandatory minimum sentence of one year for drug trafficking for those who’ve trafficked before. Canada has the second most mandatory minimum sentences in the world, after the United States, according to the Criminal Lawyers Association.
One case involved a Toronto man denied bail on gun possession and drug charges because of a criminal record. Hamidreza Safarzadeh-Markhali was ultimately sentenced to six years in jail. Under the Truth in Sentencing Act, he was not permitted to receive extra credit for the year and nine months he served in custody before his trial; the act said the denial of bail on account of a criminal record means an automatic denial of extra credit. (He received credit of one day for each day served, rather than 1.5 days for each day, as routinely given to other offenders. In a previous ruling, the Supreme Court allowed 1.5 days credit to become the norm under this law, over Ottawa’s objections.)
The trial judge in Ontario who heard the case ruled that the Truth in Sentencing Act was unconstitutional for at least half a dozen reasons, including that it removed control over sentencing from the judge who pronounces sentence and hands it to the bail judge, who knows far less about the case and the offender. The Ontario Court of Appeal also said it was unconstitutional in introducing unfairness into the sentencing process.
The federal government defended the law, saying in a court filing with the Supreme Court: “It is part of a legislative effort to enhance transparency and public confidence in the justice system, and to advance the goals of deterrence, denunciation, public safety, and rehabilitation.” The B.C. Civil Liberties Association, intervening in the case, said the law creates a sub-class of offenders, largely minorities, who will serve more jail time than other, similar offenders, because of a decision made in bail court when little is known about the offender or offence.
The second case involved a Vancouver man convicted of possession of an illegal substance for the purpose of trafficking. Because Joseph Lloyd had a prior drug conviction within the previous 10 years, the mandatory minimum sentence was one year in prison. Mr. Lloyd’s lawyer had argued for a four-month sentence, citing his youth (he was 25 years old at sentencing), his own drug addictions to crack, heroin and crystal meth and the fact he was selling to other addicts to support his habit.
The trial judge who heard the case struck down that mandatory minimum sentence as cruel and unusual punishment, citing the concept of “reasonable hypotheticals” – how the law might affect certain addicts living in the poverty-stricken Downtown Eastside, for instance. The judge then sentenced Mr. Lloyd, who lived in a hotel in the Downtown Eastside, to one year in prison anyway.
The British Columbia Court of Appeal said the trial judge was wrong to consider whether the law was constitutional, since in Mr. Lloyd’s case an even higher sentence was called for. Mr. Lloyd’s lawyer, David Fai, said the court should strike down the law on the basis that it creates a grossly disproportionate sentence not for his client but for reasonable hypotheticals such as native offenders with mental illness selling small quantities of drugs.
The federal government argued that the court is not obliged to rule on the constitutionality of the law in this case, but that if it does, the mandatory minimum is a reasonable limit on Mr. Lloyd’s constitutional rights.
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