Mandatory Minimums barely alive

The coffin that will hold mandatory minimum jail sentences for drug offences may have received its last nail. On April 15, 2016 the Supreme Court of Canada in R v Lloyd 2016 SCC 13 found a one year mandatory minimum jail sentence for trafficking when an offender has a previous drug conviction within the last 10 years to be a breach of s. 12 of the Charter which bars cruel and unusual punishment. A sentence constitutes cruel and unusual punishment if is grossly disproportionate to the offence and the offender.

The specific allegations in R v Lloyd concerned an addict selling to support a habit. He was convicted of possession for the purpose of trafficking cocaine, heroin and methamphetamine. The case is most significant for what it says about all mandatory minimums. The court observed mandatory minimum sentences for offences (such as drug offences) that can be committed in a wide variety of ways, in a wide variety of circumstances, by a wide variety of offenders are constitutionally vulnerable. The government should have included a safety valve in which a judge can exercise discretion in cases that warrant it. Such judicial discretion is widely used in other countries.

The mandatory minimums for drug offences have been successfully attacked in other court decisions. In R v Jackson-Bullshields 2015 BCPC 411 a BC Provincial Court struck down the one year mandatory minimum for trafficking cocaine or heroin while possessing a weapon. The accused was an addict selling to support his habit and he had the knife for self-defence. In R v Vu2015 ONSC 5834 an Ontario Superior Court struck down the mandatory minimum sentences for growing 6 – 200 cannabis plants. In R v Elliot 2016 BCSC 393, the BC Supreme Court also struck down the mandatory minimum sentences for growing 6 – 200 plants.

Since R v Lloyd came out things have not gone well for government lawyers. On April 26, 2016, the BC Court of Appeal in R v Dickey 2016 BCCA 177 found the two year mandatory minimum for trafficking in a public place frequented by people under 18 or trafficking or for trafficking while using the services of someone under 18 years of age to be unconstitutional. R v Dickeyaddressed three crown appeals in which the trafficking took place at a boarded up school, at a municipal park parking lot, and involved assistance by a 17-year old driver (accused was 20). All three cases involved hard drugs and in all three cases the mandatory minimums were struck down as cruel and unusual punishment.

Even more recently, on April 29, 2016, in R v Robinson 2016 ONSC 2819 an Ontario Superior Court struck down the two year mandatory minimum for possession for the purposes of trafficking of small amounts of cocaine, methamphetamine and cannabis marihuana near a place where young people frequent. It was a homeless 21-year old with mental health issues at a skate park. The mandatory minimum was found to be grossly disproportionate to the facts of the case. The Harper Conservatives were warned by experts that the mandatory minimum drug laws would probably be struck down as unconstitutional, but still they forged ahead. They thought long jail sentences for drug offences would translate into votes. Cynical politics have no place in our courts. It is now incumbent on the Trudeau Liberals to fix not just the mandatory minimums struck down in R v Lloyd, but to terminate all of the unconstitutional mean-spirited mandatory minimum jail sentences.

Paul Lewin

Find me on Twitter at: @PaulLewinLawyer