Stepping back from mandatory minimums

Drug offences under the Controlled Drugs and Substances Act are always a controversial issue. From a criminal defence perspective, drug offences can be nuanced because they are often subject to minimum sentences prescribed by the CDSA itself or starting point sentences prescribed by case law. For those unfamiliar, a minimum sentence is a mandatory number of years or months that a person will have to serve if convicted of a certain offence. Pile on as many mitigating factors as you’d like and you still won’t serve a day less than 2 years for production of cocaine. A starting point sentence on the other hand is, as the term itself suggests, subject to diversion. The Alberta Court of Appeal has said time and again that the starting point for commercial production of a small amount of cocaine is 3 years. But pile on a slew of mitigating factors and you can get a Judge to the 2 year minimum. Most mandatory minimum sentences in the CDSA aren’t attached to an offence in and of itself, and require the presence of certain aggravating factors (like association with a criminal organization). So in essence, the way to evade a mandatory minimum on, for example, a trafficking charge, is by proving to a court that the aggravating factors that occasion the minimum aren’t present in your case. However like most legal ‘certainties’, even the mandatory minimum is ultimately subject to a Judge’s discretion. The British Columbia Provincial Court has concluded that the mandatory minimum prescribed by s 5(3)(a)(ii)(a) is unconstitutional. That section of the CDSA mandates a 2 year minimum jail term for anyone found guilty of trafficking or possessing a substance for the purpose of trafficking if the offence is committed near a school ground or a public place usually frequented by minors. In R v Bradley-Luscombe, [2015] BCJ No 1685, the Honourable Judge Neal concluded, in a clearly aforethought 200 paragraph decision, that sentencing the accused to 2 years imprisonment would be cruel and unusual punishment (and a breach of his s. 12 Charter right). This is not the first decision of it’s kind: the BC Provincial Court deemed s 5(3)(a)(i)(d) in violation of s. 12 of the Charter in R v Lloyd, 2014 BCPC 224. That section of the CDSA imposes a one year mandatory jail term if an accused is guilty of trafficking and was, within the last 10 years, convicted of another designated drug offence. That finding was overturned by the BC Court of Appeal about 4 months after it was delivered. It’s hard to imagine that Bradley-Luscombe isn’t currently being appealed by the Crown, but the implications of an Appeal Court upholding that decision could prove monumental because it could mean an impending Supreme Court ruling about the constitutionality of mandatory minimums under the CDSA.


This entry was posted in Alin Mayer, tagged Sentencing and posted on September 11, 2015


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