In April of 2015, the B.C Civil Liberties Association (BCCLA) reacted to two Supreme Court of Canada decisions which deemed some of the previous government’s legislation regarding criminal law unconstitutional. The cases Lloyd andSafarzadeh-Markhali have presented the dangers and unjustness of mandatory minimum sentencing for drug offences through Bill-C10, The Safe Streets and Communities Act.

The BCCLA applauded the final rulings stating that mandatory minimum sentences are “ineffective, costly, and unjust.”

About the cases

The first case, centering on Joseph Ryan Lloyd from Vancouver’s Downtown Eastside, presents the issue of cruel and unusual punishment towards addicts in the process of convicting big-time traffickers. Lloyd was caught with less than 10 grams of heroin, crack cocaine, and crystal methamphetamine in 2013, yet he was sentenced to a year in prison – a disproportionate sentencing to his conviction.

Mr. Safarzadeh-Markhali was pulled over by a police officer who had testified that he smelled Marijuana when driving behind him and saw him holding an object “in the thumb-and-forefinger grip associated with marijuana.” He was arrested, and afterward police also found a firearm – leading to be charged with possession of marijuana and various firearm offences.

The issue this case presented is whether individuals who have been denied bail in prior convictions should be able to receive credit for the time they served prior to sentencing. Normally, they can receive up to 1.5 days of credit for each say spent in pre-sentence custody because pre-sentence custody involves being kept in harsh conditions without any access to rehabilitative programming.

However, the Truth in Sentencing Act of 2009 under the previous government denied a person bail primarily because a previous conviction was ineligible for enhanced credit and credit for pre-sentence custody was limited – presenting a doubly penalizing position for Mr. Safarzadeh-Markhali.

The Decision

These “tough on crime” measures do not achieve their stated objectives of promoting certainty to the public at large and do not help to maintain transparency and equity within the justice system. In this climate, the discretion is shifted away from judges to prosecutors, ultimately making the trial process far less open and transparent. This has a disproportionately negative effect on certain individuals like those living with drug dependence, those who are mentally ill, or visible minorities including Indigenous peoples.

The court ruled that the sentence cast a net over a wide range of potential conduct but fails to catch the serious offenders which truly threaten public safety.

A Call for Change

A mandate letter from Prime Minister Trudeau to Justice Minister Jody Wilson-Raybould called for an overhaul of the measures brought in by the Conservatives.

He outlined in his letter that while in some cases this kind of sentencing is important, such as in murder cases, but overall the sentencing has gone too far.

“Canadians lose confidence in the criminal justice system when the sentence doesn’t fit the crime,” he told CBC News.

“Judges must be able to weigh all of the evidence and decide on a fair sentence that fits the crime. Mandatory minimums take away judges’ ability to do just that.” – Laura Track, Staff Lawyer (CBC, Harris, Kathleen, 2016)

In contrast to the United States’ jurisdiction process, this case shows that Canada is moving forward in its legal decisions while also making increased efforts to restore sentencing discretion to its judges.