Daily BrewB.C. judge takes another bite out of Tories’ mandatory minimum sentence legislation
Another Canadian judge has sent a torpedo into the Conservative government's tough-on-crime strategy.
This time it was B.C. provincial court Judge Joseph Galati, who ruled the one-year mandatory minimum for drug trafficking the Tories legislated as part of their crackdown on the drug trade is unconstitutional.
It's the latest thrust at Prime Minister Stephen Harper's more punitive approach to criminals while paying more attention to victims of crime.
Judges elsewhere have undermined Ottawa's elimination of the two-for-one sentencing credit for time spent in pre-trial custody and found creative ways to avoid levying the heftier victim surcharge on those they think can't afford to pay it.
[ Related: Judges still resisting Harper government’s tough-on-crime policies ]
Galati on Wednesday sentenced drug dealer Joseph Ryan Lloyd to 191 days in jail plus time served, The Canadian Press reported. The judge concluded Lloyd, 25, was a low-level dealer who sold drugs to support his own habit.
Lloyd, originally from Alberta but now a denizen of Vancouver's drug-ridden Downtown Eastside, is no choirboy, to be sure. He was convicted last September of three counts of possessing crack, methamphetamine and heroin for the purpose of trafficking, CP said. He had 21 previous convictions for various crimes, including a 2012 trafficking charge.
The latter count is significant because the Conservatives' revision of the Criminal Code sections on drug trafficking requires a mandatory minimum jail sentence of one year for anyone convicted of a similar crime in the previous 10 years.
Lloyd's lawyer, David Fai, argued successfully the mandatory minimum sentence violated the accused's Charter of Rights.
Galati agreed. Last month he ruled the one-year mandatory minimum jail sentence amounted to cruel and unusual punishment for an addict.
“Provincial Court judges in the City of Vancouver deal constantly with drug addicts who resort to crime to feed their addictions,” Galati wrote.
[ Related: Showdown looms between judges and Harper government ]
Galati acknowledged Parliament's right to legislate sentencing “which stresses denunciation and deterrence over other sentencing objectives," and agreed a one-year term was "not grossly disproportionate" for someone with Lloyd's record, CP said.
But Lloyd's situation is all too common on the Downtown Eastside, the judge wrote in his ruling last month.
“This is a situation which happens daily in the Downtown Eastside of Vancouver and is in no way a far-fetched or extreme scenario,” said Galati.
Fai said Galati's reasoning goes to the heart of the injustice when applying the law to people like Lloyd.
"In this neighbourhood where we are, there's a lot of people here with prior convictions in the last 10 years that are addicts that are sharing with their friends or selling small amounts to support their addiction," Fai said outside court, according to CBC News.
"They'd all be sent to jail for a minimum of one year under this legislation, so instead of harm reduction we're going to sweep them all into jail."
On Tuesday, Galati rejected Crown arguments that the mandatory-minimums sentence was a reasonable infringement under Section 1 of the Charter, CBC News said.
The Crown said it will appeal, opening the door to another higher-court test of the Conservatives' mandatory-minimums legislation.
CBC News noted the Ontario Court of Appeal last fall struck down the three-year mandatory minimum sentence for possessing a loaded prohibited firearm.
