A growing chorus: courts agree mandatory minimum sentences are unconstitutional

When the Harper government introduced mandatory minimum sentencing laws in 2012, they did so under the guise of advancing a tough-on-crime agenda. In the intervening years, however, the Conservatives have seen their punitive policy picked apart by the courts and lawyers at every turn, revealing the laws to be, expensive, unnecessary, ineffective, and fundamentally unfair.

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Last month, in the latest in a growing list of decisions from judges overturning mandatory minimum prison sentences, a B.C. provincial court judge found that a mandatory minimum sentence for drug trafficking is unconstitutional.
Marco Trasolini pleaded guilty to trafficking a small amount of cocaine in 2013. At the time of sentencing, the Crown successfully argued that Trasolini sold the drugs in an area that could be accessed by minors, triggering the two-year mandatory minimum sentence that accompanies this offence. Trasolini challenged the sentence
In his decision, the Honourable Judge Reginald Harris’ agreed with Trasolini’s lawyers’ submissions on section 7 of the Charter and found that the law is over-broad and therefore unconstitutional:
“In my view, the impugned legislation casts a net much wider than is necessary to address the stated objective of protecting young persons.”
In introducing their sweeping changes to Canadian criminal law, the government claimed these changes were necessary to protect victims of crime and to keep our communities safe. But even a minor scratch at the conservative logic reveals that the law-and-order agenda is out-of-step with Canadian values. And the courts are agreeing.
While a one-size-fits-all solution may seem appealing because of its superficial appearance of equality, Canadian sentencing law depends on a tailored sentence, and treating everyone the same is only fair if we are all the same, and we are not.
Mandatory minimum sentencing works a particular unfairness for our most vulnerable citizens. Harper’s law-and-order agenda is bad public policy for everyone, but for aboriginal people, for women and youth, and for people who come before the court as a result of their addictions, mandatory minimum sentences can amount to cruel and unusual punishment and are unconstitutional.
Section 12 of the Canadian Charter of Rights and Freedoms guarantees everyone freedom from cruel and unusual punishment. Mandatory minimums infringe on this right.
This week, two more decisions on mandatory minimum sentences are expected from two levels of B.C. court.
Today a decision is expected at the BC Supreme Court in the case of R v Holt. Terrance Holt was convicted of a firearms possession offence, but his lawyer argued that the mandatory minimum sentence would violated Holt’s section 12 Charter right. Madam Justice Lisa Warren found in December that the mandatory minimum sentence requirement in section 95 of the Criminal Code had an inflationary effect on sentences for this kind of crime. She also found that the increased sentence she was required to apply to Holt would not result in a cruel and unusual sentence for Mr. Holt, but that for a different, more vulnerable offender it would. Justice Warren received further submissions over the Christmas break and her final decision on the case, and a sentence for Mr. Holt, are expected today.
On January 29 in BC provincial court, the Honourable Judge Donna Senniw is expected to rule in the case of R v Barinecutt. Bruce Barinecutt faces a (new since 2012) mandatory victim surcharge that due to his poverty and his disability he will never be able to pay. His lawyer, relying on two important decisions from the Ontario Court of Justice that found a Charter breach for the same victim fine, argued that to impose the mandatory fine on Mr. Barinecutt  would result in cruel and unusual punishment for him.
Find out more about mandatory minimum sentences and how Pivot is protecting the rights of vulnerable Canadians impacted by these laws here.
UPDATE: In the case of R v HoltBC Supreme Court justice finds that while the mandatory minimum sentence aimed at reducing gun violence amounted to a “very serious deprivation” of liberty for some people caught under its provisions and was therefore of no force and effect. Holt will not receive the mandatory minimum for the offence.