A recent Supreme Court judgement held that mandatory minimum sentencing for minor drug trafficking charges set out in the Controlled Drug and Substances Act is unconstitutional.
Canada’s Controlled Drug and Substances Act lists all controlled or unauthorized substances and categorizes these substances according to their potential danger. The Act also defines laws and associated penalties pertaining to the possession, trafficking or import/export of any controlled substance. Some of the substances governed by the Act are cocaine and heroin, marijuana or cannabis derivatives, amphetamines and LSD, and pharmaceutical products such as barbiturates.
Under the Act, if someone is convicted on the charge of possession of cannabis/marijuana, for example, the Crown may choose to try the case as a summary conviction or indictable offence. In the case of the former, the maximum fine is $1000 and/or maximum jail time of 6 months for a first offence; or a maximum fine of $2000 and/or maximum jail time of one year, for a second (or multiple) offence. If tried as an indictable offence, maximum sentencing is 5 years minus a day.
Possession for the purpose of trafficking cannabis is tried only as an indictable offence with a maximum of life imprisonment. However, if an alleged offender was convicted of a previous substance offence at any time within the past 10 years, there is a minimum sentencing requirement of 1 year. A minimum sentence of 2 years applies if the accused person involved a person under the age of 18 in the course of trafficking drugs, or if the offence was committed near a school or another place frequently attended by people under 18.
In 2012, the Conservative government introduced harsher punishments for many criminal offences, including mandatory minimum sentencing for non-violent drug offenders. In total, the Conservatives created 60 minimum mandatory sentences for drug, firearms, sex and other offences, giving Canada one of the largest number of ‘minimums’ in the world, second only to the United States, according to a recent Globe and Mail report.
In a landmark decision on April 15, 2016, the Supreme Court of Canada voted 6-3 to strike down the mandatory one year prison term for drug charges, citing that the sentence constitutes ‘cruel and unusual’ punishment and violates a person’s rights under the Canadian Charter of Rights and Freedoms. The Court further stated that mandatory minimum sentences for other offences are also vulnerable to be struck down in the future.
This Supreme Court decision in R. v. Lloyd, 2016, was made during the Appeal of an earlier sentencing decision on drug charges for a Vancouver man. Because the man had a prior conviction on drug charges, his sentencing was subject to the one year minimum mandated in the Controlled Drug and Substances Act. The 25 year old man was reported to have a history of drug addictions and allegedly sold drugs to fellow addicts to support his habit. The man was charged with trafficking in 2013, after police caught him with less than 10 grams of heroin, crystal methamphetamine and crack cocaine.
In considering the appropriate sentencing for this and other drug offences, the Supreme Court concluded that a blanket minimum sentence punishes not only those people who are meant to be targeted by the harsher sentences but also those who are found guilty of ‘much less blameworthy’ actions. One example provided by the Court is of an addicted person who is convicted on drug charges for sharing a small amount of drugs with friends, but is then sentenced to a year in prison due to a previous conviction for sharing marihuana nine years earlier. The Court argues that a one year sentence is likely inappropriate and undeserved in such a case and further, that Parliament should allow the court’s discretion to decree lesser penalties and sentencing when the mandatory minimum is grossly disproportionate to the crime. Another example where a harsh sentence may be improper is when the accused participates in and completes a drug treatment program prior to sentencing.
A second sentencing provision that the Supreme Court struck down on April 15th affects the amount of credit for each day served that a person awaiting trial will receive. People who are denied bail due to a criminal record will receive 1.5 days credit for every day they are in jail and awaiting their trial, which strikes down a previous Conservative amendment to allow only one day credit for each day served.
In R. v. Lloyd, 2016, the Supreme Court allowed Lloyd’s appeal of the 18 month sentence set by the B.C. Court of Appeal, and restored the one year sentence imposed by the provincial court judge. It was noted that appellate courts cannot change a trial judge’s sentence unless there is reason to believe the trial judge made a legal error or decided on a sentence that is noticeably unfit. A provincial court judge has the power to challenge the constitutionality of a mandatory minimum sentence that applies to the case being tried in his/her court, and the trial judge for Lloyd acknowledged that a sentence of 3 or 4 months has been upheld in some cases for similar offences.
The Court determined that although the one year minimum could be properly applied in Lloyd, there are other reasonably foreseeable cases where this minimum would be ‘grossly disproportionate’. It is unlikely that this will be the last of the mandatory minimums to be challenged by our higher courts. This decision follows a recent trial, R. v. Nur, where the Ontario Superior Court declared that the three year mandatory minimum sentence for firearms possession charges is unconstitutional. What we may see increasingly, in future sentencing decisions, is the identification of exceptional circumstances where a lesser sentence more befitting to the crime is applied.