SC Strikes Down Two Harper-Era Tough-On-Crime Laws

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The Supreme Court of Canada has struck down two federal laws from the previous Conservative government’s tough-on-crime agenda, ruling both to be unconstitutional. The decisions mean an end to rules for minimum sentences for specific drug crime convictions and limits on credit for pre-trial detention in certain conditions where bail is denied, giving trial judges more leeway in how they deal with offenders.

In both decisions, the top court said Parliament has the right to set laws to maintain public safety, but the rules should not be so overly broad that they capture offenders whose incarceration would benefit neither themselves nor the public.

Speaking in Waterloo, Ont., Prime Minister Justin Trudeau said his government is reviewing the laws around mandatory minimum sentences.

“There are situations where mandatory minimums are relevant,” Trudeau said.

“The Liberal party of the past in government brought in mandatory minimums around serious crimes like murder, but at the same time there is a general sense, reinforced by the Supreme Court decision today, that mandatory minimums brought in by the previous government in a number of cases went too far. This is what we are reflecting on.”

In a 6-3 ruling, the high court said a mandatory, one-year minimum sentence for a drug crime when the offender has a similar charge on their record constitutes cruel and unusual punishment, a violation of section 12 of the Charter of Rights and Freedoms. Only twice before has the court found mandatory minimums to violate that particular section of the Charter.

Mandatory minimums cast too wide a net

The majority ruled that mandatory minimums in this instance cast too wide a net and catch conduct that can range from a “cold-blooded trafficker of hard drugs for profit” to someone who shares a small amount of marijuana with friends. Chief Justice Beverley McLachlin, writing for the majority, said that in the latter instance “most Canadians would be shocked to find that such a person could be sent to prison for one year.”

The case came about after Joseph Ryan Lloyd was convicted in September 2014 of three counts of possessing crack, methamphetamine and heroin for the purpose of trafficking in Vancouver’s Downtown Eastside.

An addict, Lloyd also had a 2012 trafficking charge.

The provincial court ruled that while the appropriate sentence for Lloyd was one year, the mandatory minimum sentence constituted cruel and unusual punishment and violated the charter.

‘Those sentencing judges, this is what they do day in and day out’

Raji Mangat, director of litigation for the West Coast Women’s Legal Education and Action Fund, which intervened in the case, said the Supreme Court’s decision righted a wrong by giving judges more leeway in sentencing.

“Those sentencing judges, this is what they do day in and day out,” Mangat said. “They have the expertise to be able to decide what is going to be a fit and appropriate sentence and we think that that discretion should stay with the judges.”

The Supreme Court also unanimously agreed to strike down provisions passed in 2009 that prohibited a trial judge from giving more than one-for-one credit for pre-trial detention if a justice of the peace denied bail to the person because of a previous conviction.

That’s what happened in the case of Hamidreza Safarzadeh-Markhali, of Pickering, who was arrested in November 2010 on drug and weapons charges.

He was awarded extra pretrial credit by his trial judge and the Ontario Court of Appeal agreed, noting that three offenders with the same criminal records and given the same sentence could effectively end up serving substantially different amounts of time depending on whether they received bail. Safarzadeh-Markhali has since been deported to Iran.

Harper-era agenda crumbling

The Supreme Court found the law was overly broad and would capture offenders who, for instance, might have been convicted for failing to appear in court.

Safarzadeh-Markhali’s lawyer, Jill Presser, said the decision means thousands of people will serve less time in jail “by a factor of days to even years,” many of whom couldn’t get bail because of their circumstances or a lack of support. Combined, she said, the decisions continue to dismantle the Harper-era, tough-on-crime agenda.

“The question for Parliament now is do they want to rebuild the structure on solid constitutional grounds, or simply let it come down?”

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