Mandatory Minimums Coming Under Sustained Attack

May 20th, 2020

As part of its ongoing effort to “toughen” the criminal law in Canada, and in a nod to the American experience, the Canadian government under the Prime Minister has been stiffening the penalties for a whole range of criminal offences.  The most prominent of those are the mandatory minimum sentences for certain drug trafficking offences, as well as those for certain firearms offences.

One example of the new minimums for drug trafficking snared Joseph Lloyd, a resident of Vancouver’s Downtown Lower Eastside who admitted to being addicted to crack cocaine, methamphetamine and heroin.  On March 22, 2013, police arrested Mr. Lloyd for possessing a knife in violation of a probation order.  He had been released from prison after serving a sentence for possessing methamphetamine with an intention to traffic (or give, sell, distribute or share) in it.  When he was searched in March, police found sufficient quantities of cocaine, methamphetamine and heroin to lay another set of criminal charges against him – for possessing those drugs for the purposes of trafficking in them.

Mr. Lloyd lost his trial and the consequences were potentially very significant.  Because of his previous conviction for a drug trafficking-type offence, he was subject to an automatic, minimum sentence of one year in jail.  In fact, the Crown was seeking two years in jail.  Although Mr. Lloyd lost his trial, he scored a big victory at the sentencing, in convincing the sentencing judge that although a one year sentence would not be a grossly disproportionate for what he had done, the fact that it was a minimum for everyone, made the law creating the minimum not only unconstitutional but invalid across the board.

The way he did so was to create a hypothetical scenario of an addicted, downtown east side drug user with a criminal record for trafficking offences, possessing a small amount of a serious drug to share with a spouse or friend.  The judge accepted that this scenario, though hypothetical, was in no way far-fetched and in fact happens daily in the very neighbourhood where Mr. Lloyd lived.

Because a one year sentence for such a person is so grossly disproportionate that Canadians would find it abhorrent or intolerable, the judge found that it violated s. 12 of the Canadian Charter of Rights and Freedoms, which provides a guarantee against cruel and unusual punishment.  As a result, he struck the law down, and in a supplementary ruling, he found that s. 1 of the Charter, which can justify otherwise unconstitutional laws, did not “save” this mandatory minimum sentence.

Mr. Lloyd’s case was just the latest, and a very local, example of what might be a growing judicial trend against mandatory minimum penalties.  More in the next post.

scale of justice

* Law Corporation

© Copyright 2021 – Bloom Law

Bloom Law Trademark Registered - TMA835775

Bloom Law & Design Trademark Registered - TMA835774