Mandatory minimum sentences are sometimes unconstitutional

Justice Minister Rob Nicholson delighted many police officers on Friday (February 27) when he came to Vancouver to  announce mandatory minimum sentences for drug traffickers.

It’s part of a criminal-justice bill that the Conservatives have reintroduced before Parliament.

I’m not convinced that this is good public policy, and I base it on the experience of three young people I knew in Victoria during my wilder teenage years.

They went to many of the same parties I attended. They were intelligent, well-spoken, and never violent. But their judgment wasn’t as good as it could have been when they came up with a  crazy idea to import cocaine from nearby  Washington state on a zodiac dinghy.

They weren’t doing this very long before they were arrested on the docks. At the time, Canada’s Narcotic Control Act carried a mandatory seven-year minimum sentence for importing cocaine.

Their friends were all stunned by the news. These were young men who obtained good grades in school. They weren’t gangsters in the conventional sense of the word. They were ambitious, popular, and respected.

They’ve since gone on to enjoy some success in life, so I’m not going to reveal their names now. One of them had a lawyer who pleaded him guilty to the crime. He received the automatic seven-year mandatory minimum sentence, and spent part of that time in William Head prison.

He later did very well at Simon Fraser University.  I recall he went to work in Japan.

The second one didn’t do any time in jail. I saw him in Vancouver a few years later, and he was doing fine.

The third one had a lawyer who wouldn’t let him plead guilty to importing cocaine. He received an 18-month sentence on a lesser charge. I remember visiting him in what was then the Brannen Lake minimum-security correctional centre.

He told me it was an awful experience, and he never wanted to return to jail again. He said people were making booze out of anything they could get their hands on. He had learned his lesson. I saw him a few years later, and he had a respectable job.

None of them should have faced the prospect of a seven-year mandatory minimum  sentence for being so stupid and greedy at such a young age.

I believe that after police put handcuffs on them, these three young men had already learned their lesson and were unlikely to repeat this criminal activity.

A few years later in 1987, the Supreme Court of Canada  ruled that the seven-year minimum sentence for importing cocaine was unconstitutional.

In R. v. Smith, Canada’s highest court  declared that the seven-year minimum sentence for importing cocaine under the Narcotic Control Act violated the Canadian Charter of Rights and Freedoms because  it constituted cruel and unusual punishment.

“The court in assessing whether a sentence is grossly disproportionate must consider the gravity of the offence, the personal characteristics of the offender, and the particular circumstances of the case to determine what range of sentences would have been appropriate to punish, rehabilitate, deter or protect society from this particular offender," the judgment stated. “The court must also measure the effect of the sentence, which is not limited to its quantum or duration but includes also its nature and the conditions under which it is applied. The determination of whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles and whether valid alternative punishments exist, are all guidelines, not determinative of themselves, to help assess whether a sentence is grossly disproportionate. Arbitrariness is a minimal factor in determining whether a punishment or treatment is cruel and unusual.”

Nicholson’s new bill features a two-year minimum sentence for growing 500 marijuana plants or more. This ensures that anyone who is convicted has a decent chance of doing time in a federal prison, where inmates are often more brutal. Nicholson and his boss, Prime Minister Stephen Harper, obviously don't think this constitutes cruel and unusual punishment because otherwise, they wouldn't have introduced it.

In addition, Nicholson's bill  will double the maximum penalty for running a marijuana grow-op to 14 years.

Drug traffickers who are involved in “organized crime” or if weapons are involved will receive mandatory minimum sentences of one year. But if this activity occurs near a school, that will be doubled to two years.

These punishments aren’t as onerous as the old mandatory minimum seven-year sentences for importing cocaine. But they do seem to disregard the Supreme Court of Canada’s cautionary words from 1987 that that the court can assess whether a sentence is “grossly disproportionate” by examining whether punishment is necessary to achieve a valid penal purpose or whether valid alternative punishments exist.

That's what judges are supposed to consider. But in the Harper era, we've learned, judges are not to be trusted to exercise this discretion. So that's why we're  going to get  mandatory minimum sentences for growing marijuana in this country, and we can expect that more teenagers are going to rot in federal jails.



Reader via e-mail

Mar 2, 2009 at 9:33am

I think you're bright and well informed----but I disagree with you on this one.

We don't have much in the way of deterents from the courts. Average time for a murder is about 3 to 5 years.

Average time for a grow op-----1st, 2nd, 3rd, 4th ...........offence = no time.

I spoke to an RCMP officer prior to his speaking engagement----I think he was a superintendent. He wouldn't even refer any more to a justice system, he called it a legal system.

He said lots of the drug traffickers have lots of money and hire the best lawyers. Sometimes they even seek legal advice before committing a crime.

Which brings me back to minimum sentences.

The cop told me that it used to be that to get a conviction in a case it used to be that a prosecutor had only to convince "the average person". But now it has evolved to having to convince a judge as the standard for a conviction.

Judges, unfortunately have so watered down the sentencing aspect of convictions that the public have zero confidence in our system. And the people doing the crimes are taking full advantage of our system.

My car was 50 feet away from the Guilford shooting and I missed it by about 5 minutes. I had my route home detoured because of the woman murdered with her child in the back seat.

I had a grow op next door to me for 8 months and the police told me on two separate occasions that to get it busted my best chance was to call in an active B & E taking place but from a pay phone. Hydro eventually shut it down not the police.

If young people want to experiment with smoking pot or taking drugs once or twice as part of reaching adulthood----I don't think that's criminal.

But if they cross over to dealing-------too bad. They should do some time.

Maybe your friends did ok after their experience with drugs and the law. But one of mine lost everything, sucked in their family for thousands of dollars, and went on to be a homeless junkie for two years and now is just getting off the street.

Drugs trafficking wreck countless lives. It's no small crime. In other countries they just shoot them.

Likely in BC drug trafficking is our number one industry now.

A small mandatory sentence is not unreasonable. And besides, don't they still only have to serve what is it----half or two thirds of a sentence before they get paroled?

Too many lenient judges have ruined our system.

It's impossible to reverse a precedent.

Forget the bleeding heart criminal rights-----what about the hard working honest citizen's rights?

Mandatory sentencing----------the sooner the better.



Mar 4, 2009 at 9:15pm

Poppycock. The recent decision to give out a conditional sentence for MURDER is a blatant example that judges are not to be trusted with wide latitude. If they are in jail, they are away from the public. Besides how many teenagers can set up and run a 500 plant grow? How many can be legitimately linked to real organized crime?

Look around. Its like Dodge City in the Lower Mainland. Instead of making excuses, denigrating the police and ignoring the escalating violence, come to grips with criminals with 70 convictions walking free and busting into houses, again. People cannot even go to the mall to do their business. John Gotti wannabees everywhere. Gun crimes, no bail, alleged gangster activity, no bail, and no double time for time served. No mandatory parole after 2/3. Its high time the disastrous experiment on rehabilitation of the criminal started years ago is buried. Stick a fork in it, its done.

Legal system is right. Perhaps it should be the illegal system by name.


Mar 8, 2009 at 4:51pm

I would agree with minimum manditory sentences for hard drugs, but pot is the only thing saving our economy, it is our NUMBER ONE INDUSTRY in ALL of the Canada.

And to put it simply, doing something as natural as growing and selling a plant which humans have now been enjoying for over 6000 documented years does not deserve ANY punishment. Period.


Mar 26, 2009 at 2:58pm

Great opportunity for christ-ian capitalists to build nice private prisons. Maybe "James Dobson borstal institute" or "William Aberhart penitentary". This stinks and looks like an in to private prisons run by buddies of the government (con or lib).


Apr 3, 2009 at 5:07am

We can argue over this forever, but has anyone stopped to remember that in America this approach has been tried, with complete failure, for over 30 years.

When we decide to do something in life we normally go somewhat blindly, hoping we are making a good choice. In this case we have a model, an American model decades old, that has cost the American taxpayer 100's of billions of dollars, ruined the wrong lives, and achieved nothing. It is totally irrisponsible for this Canadian government to burden this country with the cost of what this bill will incure. It is discouraging to say the least to see a real conversation taking place in America as to marijuana, as state after state begins to repeal these insane laws. Science has been ignored, along with economists and criminologists, who see this as a disaster. THIS BILL SENTENCES A PERSON WITH EVEN 1 PLANT TO 6 MONTHS IN PRISON. Do the math, and for what reason other than the ideology that still sees this plant as evil. I do not use marijuana, but I have taken the time to do as much research as I possibly can. Can you explain to me why the American College of Physicians, 125,000 "repected" doctors have sent their own position paper to the American administration, asking them to re-classify marijuana. I'll explain it to myself. 30 plus credible studies, showing an overwhelming reduction in cancerous tumers using THC. Maybe thats why Harvard found no correlation between cancer and marijuana use. Even the peolple that smoked marijuana and cigarettes had a fraction of the lung cancer rate than that of just a cigarette smoker. Wake up Canada. Everyone knows someone who smokes marijuana, and you do not have to use it to understand that the cost of mandatory minimums, most especially for marijuana, will be coming directly out of the taxpayer's pocket. $80,000 per year just to house 1 prisoner,and will you feel safer knowing that a teacher, a doctor, a carpenter, or politician is locked away from society when they posed 0 risk to the country? These laws DO NOT target the cartels, they target the average Canadian. An anonomous tip from a neighbor can result in a search warrant, and woops, there goes the non-violent taxpaying Canadian to prison for a plant that has never caused a death, cannot be overdosed on, is not a gateway drug and is quite possibly more medicinal than we could have ever believed possible.

Lucas McCain

Jul 18, 2009 at 3:43pm

Drug dealers are merchants of death. They should be hung with a rope.

Most Canadians have never been touched by Narcotics. Most Canadians haven’t had to deal with junkies and families and lives totally destroyed by the use of narcotics, unlike myself who was for a very long time a police officer.

I finally reached a point where I could no longer deal with it and I resigned.

Myself and others went out on each shift not knowing if I we would complete the 8-10 hours all in one piece or maybe someone would have to tell my wife and family that I was killed in the "Line of Duty" and of course died a hero.

Then after dealing with these sub humans, the Liberal Courts with their revolving doors would let them back on the street before the ink was dry.

The fact that marijuana may not have killed anyone is neither here or there. The money from the sale goes to the same place as the money from hard drugs---direct into the pockets of organized crime.

The "War on Drugs" has been a dismal failure. More emphasis should be put on the customer. If the mighty Wal-Mart had no customers they would be out of business.

I have yet to find any person who can tell me of what value or of what the great necessity to use, heroin, cocaine, meth, ecstasy, etc....

Users should think about this: A good chunk of narcotics imported here comes from Afghanistan. The profits of which, help finance the war.

One should contemplate that when you use hard drugs that you are supporting weapons that kill our soldiers in that ill fated mission there.

I have one friend who has a bumper sticker on his pickup truck that says "Buy Drugs Help Kill a Canadian Soldier in Afghanistan.” I have another, his bumper sticker reads: “Support Organized Crime: Buy Drugs.”

Perhaps the customer makes the purchase he should wonder if the money he gave will buy a gun and/or the ammunition that will kill a young soldier from somewhere in Canada.

One of my close friends, his son, has died over there.

Maybe it was a Canadian customer who helped by the gun or the ammunition that killed him.


Nov 17, 2009 at 10:51am

"They were intelligent, well-spoken, and never violent. But their judgment wasn’t as good as it could have been when they came up with a crazy idea to import cocaine from nearby Washington state on a zodiac dinghy.
They weren’t doing this very long before they were arrested on the docks...These were young men who obtained good grades in school. They weren’t gangsters in the conventional sense of the word. They were ambitious, popular, and respected...They’ve since gone on to enjoy some success in life"

So it sounds like a little time in the poky did these entitled middle class brats some good. No one should be above the law -- rich or poor, smart or stupid, popular or not.


Jan 13, 2011 at 9:07am

Heroin funds the Taliban.
Marijuana funds a sizable chunk of the Canadian economy.

You are right that drugs can ruin people lives. Ive seen families destroyed by addiction to oxycontin. people turn into xanex zombies, watched people speedball with hundreds of mGs of adderall and ambian.

Ohh yeah and then there is the most destructive drugs of all, the two big killers that put tens of thousands in their graves every year, alcohol and cigarettes.

More people die every day from these legal drugs and "pharmaceuticals" than died in the entire history of marijuana use.

If you want mandatory minimums, give them for violent crimes. When you jail someone for pot you just used the taxpayers money to train a new professional criminal.

So rail against pot all you like, then go home and get sloshed and beat your wives, or get so jacked up on prescriptions that you pass out drooling on yourself. Rush Limbaugh knows how it works, go sit with him in his nirvana of hypocrisy,

The moment you list alcohol next to heroin as an incredibly addictive substance that has zero medical benefit and routinely kills outright not to mention destroys the lives and families of millions, then you may have the moral authority to judge marijuana.