I’m barely home from Ottawa and here we go again, readying for another challenge to mandatory minimum sentences.
Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.
Two weeks ago I was at the Supreme Court of Canada for Pivot’s intervention in R v Lloyd. Today, I’m heading to the BC Court of Appeal for another intervention, this time in two cases: R v Dickey and R v Trasolini, both drug trafficking cases that involve the application of mandatory minimum jail sentences. Pivot also intervened in the Supreme Court of Canada cases R v Nur and R v Charles.
If you’re sensing a pattern, you’re right. We keep intervening in challenges to mandatory minimum sentencing provisions, and we hope that the Courts will keep agreeing with us.
In the cases of Nur and Charles, the SCC struck down mandatory minimum sentences that applied to firearms offences. They found in those cases that the application of mandatory 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.”
This should come as no surprise. In 2013, Pivot published a report, “Throwing Away the Keys”, after the Conservative government introduced dozens of mandatory jail sentences, most notably with the omnibus crime bill, the Safe Streets and Communities Act (SSCA) in 2012. These included a whole series of new mandatory jail terms for drug crimes.
There have always been mandatory jail terms in Canada, but these new provisions added more than fifty mandatory jail term to the Criminal Code.
Pivot’s report outlined the human costs of mandatory sentencing. Under the guise of being “tough on crime” -- during a long period of sustained declines in crime rates in the country -- these measures have proven to be costly, both economically and socially, and have disproportionate negative effects for people living with drug dependence and youth in or leaving the foster care system. This is the community we represent: vulnerable groups such as women, Indigenous people, and people who come before the court as a result of their addictions.
In practice, mandatory minimum sentences prevent courts from considering the circumstances of the person before them: whether they need treatment instead of jail time, they’re the victim of ongoing colonialism, or their time in jail could mean their children are apprehended into foster care, continuing a cycle of poverty, marginalization, and family disruption. Because this necessary part of ordinary sentencing is not allowed, judges have no choice but to impose sentences that may not pass constitutional muster.
And so I am going back to court -- and I will keep going back -- until these provisions are struck down, either by the Court or by the government, who I will urge to respect the Charter rights of marginalized Canadians and to commit themselves to a real departure from Conservative and regressive drug policy.