Prime Minister Stephen Harper's plan to lock up drug dealers for mandatory periods of time has been dealt a serious blow.
Today (February 19), a B.C. provincial court judge ruled unconstitutional an automatic one-year prison term for a person repeatedly convicted of dealing narcotics.
That penalty—a key component of Harper’s tough-on-crime agenda—only came into effect in November 2012.
Judge Joseph Galati previously ruled that a mandatory minimum sentence violates section 12 of the Canadian Charter of Rights and Freedoms, which states that every citizen has the right to not be subjected to cruel and unusual punishment. The case was adjourned in order to provide time for a notice of constitutional challenge.
Galati has now concluded that the new law was not saved by section 1 of the Canadian Charter of Rights and Freedoms, which states that every citizen is guaranteed freedom subject to reasonable limits prescribed by law. Galati ruled that a mandatory minimum sentence for drug trafficking is not reasonable and therefore violates that right.
The case concerns Joseph Ryan Lloyd, a 25-year-old resident of Vancouver’s Downtown Eastside. According to court documents, Lloyd is a long-time drug user with 21 prior convictions.
He was arrested in March 2013 and in September convicted on three counts of trafficking relatively small amounts of heroin, cocaine, and methamphetamine.
In a January 2014 ruling, Galati noted that Lloyd was a low-level dealer only selling drugs to support his own addictions. Galati stated he would therefore sentence the young man to 191 days in addition to time served, instead of the minimum of one-year.
In a telephone interview, Lloyd’s lawyer, David Fai, told the Straight that because the mandatory minimum sentence violated section 12 and wasn't saved by section 1 of the charter, the law has been declared unconstitutional.
However, Fai acknowledged that the Crown has appealed the judge’s decision, which concerns a 2012 amendment to the Controlled Drugs and Substances Act.
“I don’t know if this case will be the one that goes to Ottawa, but eventually, the Supreme Court of Canada will have to deal with the issue,” he said. “But at this point, in this province, the law has been declared unconstitutional.”
In a written ruling for the January decision, Galati recognizes the aggravating circumstances of the offender and states that a minimum one-year sentence would not be a beneficial outcome for Lloyd’s case.
“He candidly acknowledges that his offences are not an isolated incident but were a routine part of his life in the downtown east side of Vancouver and were committed without consideration of the harm done to victims,” Galati wrote.
His judgement continues: “All sorts of drug users share drugs. A one year jail sentence for this hypothetical offender [someone like the defendant] goes well beyond what is justified by the legitimate penological goals and sentencing principles of the CDSA. It is a sentence which Canadians would find abhorrent or intolerable. Accordingly, I find that the mandatory minimum sentence of imprisonment for one year required by s. 5(3)(a)(i)(D) of the CDSA constitutes cruel and unusual punishment.”