Cruel and unusual punishment - Pivot challenges mandatory minimum sentencing

If you have been following the constitutional battle over Harper's mandatory minimum sentences you know that we at Pivot believe the sentencing to be inappropriate for drug offences. I have spoken out against this sentencing regime repeatedly - most recently on News 1130.

When I made that statement in March, a provincial court judge had just refused to impose the newly legislated mandatory minimum sentences of imprisonment for the offence of possession for the purpose of trafficking in drugs. The case was about a man named Joseph Lloyd, a Downtown Eastside resident who was convicted of the offence after police stopped him for riding his bicycle on the side walk and found that he was carrying just less than ten grams of heroin, crack cocaine, and methamphetamine. The drugs were in small packages, so Mr. Lloyd was charged with possession for the purpose of trafficking. In his sentencing hearing, Mr. Lloyd told the court he was a user of all three of these drugs. He was convicted, but the trial judge found that the 1-year mandatory minimum jail term set out in section 5 of the Controlled Drugs and Substances Act (CDSA) violated the Charter right to be free from cruel and unusual punishment. I was in the courtroom, and we blogged about it here.

The mandatory minimum provision was new, and was legislated as part of the federal government's tough on crime agenda. There had been a mandatory minimum sentence in Canada’s drug laws in the past: a 7-year mandatory minimum jail term for importation under the Narcotic Control Act (the predecessor to the CDSA) was struck down as unconstitutional in 1987 in a case called R v Smith. Despite that history, the Harper Government brought mandatory minimum jail terms for drug crimes back into play in March 2012, with the Safe Streets and Communities Act alternately known as Bill C-10 and the “Omnibus Crime Bill”.

Pivot spoke out against mandatory minimum sentences in our 2013 report Throwing Away the Keys: The human and social cost of mandatory minimum sentences.  In that report, we said mandatory minimum jail terms would have a disproportionate negative effects for people living with drug dependence, Aboriginal people, and youth in or leaving the foster care system. We were pleased to learn that Mr. Lloyd's defense attorney relied on this report in his submissions.

But that’s not the end of the story. On the same day the provincial court decision came down, the Federal Prosecutor served Mr. Lloyd's lawyer with a Notice of Appeal indicating that the government intended to appeal the trial judge's finding of unconstitutionality. The BC Court of Appeal will hear the matter in June.

Yesterday, Pivot went to the BC Court of Appeal to ask leave to intervene in the case. The Honourable Justice Goepel granted intervenor status to Pivot, and to the BC Civil Liberties Association.

Pivot is looking forward to bringing Downtown Eastside voices to BC’s highest court in June. We intend to remind the Court that the Supreme Court of Canada found in the Insite case that that drug use is a medical issue, suffered disproportionately by aboriginal people, by women, and by sex workers in our neighbourhood. We will say, as we did in the media and in our report, that jail is not an appropriate solution for health problems, and that mandatory minimum sentences are unfair and unconstitutional.

I'm really looking forward to being there, even though I fear the road ahead leads us to the Supreme Court of Canada in Ottawa before the constitutional question is resolved. I will report back when there is more news to tell. Thanks for being along for the ride!