The SCC found that in the cases of R v Nur and R v Charles, both involving firearms offences, the application of mandatory minimum sentences was “so excessive as to outrage standards of decency,” breaching section 12 of the Charter and amounting to “cruel and unusual punishment.” Pivot Legal Society intervened in both cases.

 

“A three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing,” said Chief Justice Beverly McLachlin, who wrote for the majority of the court. “As the Court of Appeal concluded, there exists a cavernous disconnect between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment.”

 

The Chief Justice went on to conclude that, “For subsequent offenses, the five-year mandatory minimum term of imprisonment would be grossly disproportionate for less serious offenders. For them, the five-year term goes far beyond what is necessary in order to protect the public, to express moral condemnation of the offenders, and to discourage others from engaging in such conduct.”

 

Mandatory jail terms for indictments have been in force under Section 95 of Canada’s Criminal Code since 1995, and included the three- and five-year mandatory minimums since 2008. The Safe Streets and Communities Act (SSCA), the federal Conservatives’ omnibus crime bill passed into law on March 12, 2012, have expanded mandatory minimum sentences even further. 

 

“The law-and-order agenda imposed by the Safe Streets and Communities Act is out-of-step with Canadian values,” says Adrienne Smith, health and drug policy lawyer at Pivot Legal Society. “Today’s decision reveals mandatory minimum sentences for what they are: fundamentally unfair, expensive, unnecessary, and ineffective.”

 

Pivot Legal Society has long argued against mandatory minimum sentences in general. For vulnerable groups such as women and youth, aboriginal people, and people who come before the court as a result of their addictions, mandatory minimum sentencing can amount to cruel and unusual punishment.

 

“Mandatory minimum sentences unfairly target vulnerable people and fail to consider the conditions of individual’s lives and their communities,” says Smith. “A one-size-fits-all model of punishment is out-of-step with Canadian criminal law principles, which require that the punishment fit the crime. Laws that result in cruel and unusual punishment and infringe the Charter rights of the most marginalized people in our society cannot be allowed to stand.”

 

Pivot Legal Society has also intervened in a second challenge to mandatory minimums sentencing provisions—the BC Court of Appeal in the case of R v Lloyd. Mr. Lloyd was a Downtown Eastside resident subject to a mandatory minimum sentences for possession for the purpose of trafficking of three controlled substances to which he was addicted. A BC Provincial Court judge struck down the mandatory minimum sentence on the basis that it violated section 12 of the Charter for a reasonably foreseeable offender, but the government appealed. As decision on whether Mr. Lloyd’s case will be heard by the Supreme Court of Canada is expected soon.

 

A copy of today’s decision is available here.

 

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Pivot Legal Society is a leading Canadian human rights organization that uses the law to address the root causes of poverty and social exclusion in Canada. Pivot’s award-winning work includes challenging laws and policies that force people to the margins of society and keep them there. Since 2002 Pivot Legal Society has won major victories for sex workers’ rights, police accountability, affordable housing, and health and drug policy. 

 

Kevin Hollett

Communications Director

778-848-3420