Repeal sentencing laws that violate Charter rights

Last month the BC Court of Appeal delivered a decision that overturned two-year minimum sentences for drug trafficking convictions. In their unanimous decision, the justices found that these mandatory sentencing provisions were “grossly disproportionate” in light of the crime committed, and therefore amounts to cruel and unusual punishment.

The Court’s decision is the latest in a succession of court rulings striking down mandatory minimum jail terms that should serve as a clear signal to the federal Liberals to move quickly to repeal unconstitutional sentencing provisions and bring our laws in alignment with Charter rights.

Earlier this month the Supreme Court of Canada struck down minimum sentences for another specific drug crime offence, on the basis that it would generate “cruel and unusual” punishment in some situations. And last year, the country’s highest court also struck down mandatory minimum sentences that applied to firearms offences. In both those cases, they found that the application of minimum sentences could lead to sentences that are “so excessive as to outrage standards of decency,” breaching the Charter section 12 protection against cruel and unusual punishment. You can see a clear pattern.

In addition to their consistency, these court rulings are a clear repudiation of the mandatory minimum sentences the Conservatives enacted as part of their so-called tough-on-crime agenda.

In 2012, the federal government made a number of changes to Canadian criminal law, introducing a suite of new minimum prison sentences alongside other changes including how credit for pre-sentence detention is calculated, imposing new victim fines for all offences, and placing restrictions on who can serve their sentence in the community rather than going to jail. 

The government claimed these changes were necessary to protect victims of crime and to keep our communities safe. Keep in mind these changes were made while Canada was experiencing, and continues to experience, historically low and declining crime rates, as well as a decline in the incidence of violent crime.

Setting aside the questionable Conservative logic, the fact is that the law-and-order agenda was and is out-of-step with Canadian values. Prior to the host of “tough on crime” measures introduced by the former Conservative government, Canada did not have any minimum sentences for drug offences, likely due to the extensive mitigating factors and low culpability that are often present in cases involving drugs. Minimum sentences in such cases are fundamentally unfair, expensive, unnecessary, and ineffective. The courts agree.

A one-size-fits-all approach to criminal justice may appear on the surface to promote equality, but it makes little sense when you consider that treating everyone the same is only fair if their backgrounds and experiences are all the same. They are not.

The circumstances that bring people before the court differ individual-to-individual, and the impact that jail time has on those individuals and their communities is equally varied. We should allow our judges to take those differences into account when they impose sentences.

In the case of R v Lloyd, the Supreme Court’s mandatory minimum ruling involved a drug user, Joseph Lloyd, a resident of Vancouver’s Downtown Eastside who was charged for trafficking because he sold drugs to support his own addiction. In the Court’s decision, Chief Justice Beverley McLachlin wrote, “The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable.”

Mandatory minimum jail terms handcuff our judiciary by preventing judges from considering the unique personal circumstances of the person in front of them and the effect jail time will have for that person when determining an appropriate sentence. That undermining of judicial discretion is why these sentencing policies can lead to cruel and unusual punishment.

It is not just that these laws result in unfair sentences for specific individuals, they are proven to have a disproportionately negative impact on historically disadvantaged groups including women, youth, people with drug dependence, and aboriginal people. Mandatory jail terms separate mothers from children, fracturing families and communities. They criminalize young people, beginning a cycle of recidivism rather than rehabilitation. They negatively impact the health outcomes of those with addiction issues, deepening drug dependence instead of serving as a deterrent. And they lead to the over-imprisonment of Aboriginal people, continuing a devastating legacy of colonialism.

Perhaps that final piece will persuade the federal government that there is an urgent need to act. A report this year by Canada’s prison watchdog found that in federal correctional facilities more than a quarter of the incarcerated population are now of Aboriginal ancestry.

If the Liberals are going to fulfill their promise of a renewed relationship with Canada’s  Indigenous people, our government must heed recommendations from the Truth and Reconciliation Commission that call for more funding for prison diversion and “realistic alternatives to imprisonment.”

By now the message for the federal government should be quite clear: our laws must align with the Charter of Rights and Freedoms. Until they do, they will continue to be challenged and, in all likelihood, they will continue to be struck down.


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