The Mandatory Minimums Keep Falling

June 24th, 2020

In the last blog post, we examined the case of Joseph Lloyd, a small-time dealer of cocaine, methamphetamine and heroin in the downtown eastside who was able to persuade the Court that the recent changes to the Controlled Drugs and Substances Act, which provide for mandatory minimum jail sentences for certain drug offenders (including, in his case, repeat-sellers of certain hard drugs) provided for penalties that are so harsh that they can be described as being “abhorrent”, “intolerable”, “grossly disproportionate” and “cruel and unusual.”

There is ample evidence that the trend is not limited to the downtown eastside, and not just to the drug world.

Consider the case of 29-year old Glenn Sheck, whose night started with a visit to an Earl’s Restaurant just outside White Rock.  He was carrying a Louis Vuitton bag but did not realize that he was under close police surveillance.  Sitting in the restaurant alone, he looked up to see police members quietly ask him to come with them.  Once outside, he was arrested and searched.  In the Louis Vuitton police found some serious firepower: a 9 millimeter Glock handgun equipped with ten rounds in the clip.

Mr. Sheck was found guilty of the unlawful possession of a loaded, prohibited firearm, and the Crown, having proceeded against him under new mandatory minimum penalties in the Criminal Code, sought a three-year sentence, despite the fact that he was before the Court with no criminal record.  As a result, Mr. Sheck asked the Court to strike down the law and sentence him under the old rules, in which there was no mandatory minimum.

The judge agreed that a three year sentence would be excessive and harsh for Mr. Sheck, but at the same time, noted that Mr. Sheck’s case was a very serious one, having brought a loaded handgun that was easily and readily accessible into a busy restaurant.  Although a three year sentence for a first-time offender in these circumstances would be excessive and harsh, the judge found that such a sentence would not rise to the level of being what the Canadian Charter of Rights and Freedoms calls “cruel and unusual punishment.”

However, just as in the case of Mr. Lloyd in the downtown eastside, Mr. Sheck had other hypothetical scenarios to present to the Court.  And he was successful.

In the Sheck case, the reasonable hypothetical was was a young, foolish person who has a loaded restricted firearm in circumstances that look very serious at first blush, but after learning more context, there is in fact less danger and menace than at first suspected.  Mr. Sheck’s “reasonable hypothetical” was actually drawn from a an actual case of police bursting into a man’s bedroom to find him holding the firearm and a camera.  He was posing and trying to look tough.

Though the gun was loaded and was dangerous, the situation was more foolish and less dangerous than it first appeared, especially well into the case, when more about the young man was known.  However, the judge in Sheck asked himself what would happen in a case where, based on the early appearance of the case, the Crown chose to to proceed against an individual under what is called the “indictable” process.  When the Crown proceeds “indictably” or “by indictment”, the mandatory minimum penalty for a conviction jumps from 1 year in less serious cases to 3 years, no matter what the actual circumstances.  In such a case, a judge, even if he or she heard all of the evidence and knew that the context made the case more foolish than dangerous, would nevertheless have no authority to drop the sentence from a 3 year minimum to a 1 year minimum on the basis that while the case may have looked more serious at the beginning, it turned out to be much less so, once all the evidence was in.

On the basis of that analysis, the judge struck down the law and went to find that the s. 1 “saving” provisions could not rescue the law from itself.

Finally, lest anyone wonder whether this trend is limited to a couple of provincial court judges in downtown Vancouver, it seems the movement is much wider.  The most notable of all of the cases is the one of R. v. Nur, a decision of the Ontario Court of Appeal released at the end of 2013.

In Nur, the Court struck down the threee year mandatory minimum.  That is now the law in Ontario, but because that Court is considered by many to be one of, if not the, leading appeals court (below the Supreme Court of Canada) on criminal matters, it is sure to be considered as persuasive throughout Canada.  Moreover, in Nur, the Court sat as a panel of five justices instead of the usual three which lends added gravity and weight to the Court’s decision.  Finally, the decision for the Court was written by Mr. Justice Doherty, one of the most prominent and well-respected criminal judges in a generation.

Although Nur was decided less than four months ago, it has been followed by at least four courts in three different jurisdictions.  Whether it remains the law may soon be clear – the Crown appealed it to the Supreme Court of Canada, which has yet to decide whether it will hear the appeal.

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