The Supreme Court recently released a judgment in Lloyd striking down as unconstitutional a minimum sentence for drug trafficking. The Court found the minimum sentence, a one-year mandatory minimum where the offender has been convicted of a previous drug offence within the last 10 years, violates section 12 of the Charter because it doesn’t allow for judicial discretion based on the circumstances of the particular conduct and the individual offender. The mandatory minimum sentence amounted to cruel and unusual punishment.
While not striking down any other mandatory minimums, the Supreme Court used some language which places in the constitutional validity of other mandatory minimums brought in by former PM Harper’s tough on crime bills in jeopardy. The Court stated that any mandatory minimum for broad offences are vulnerable to Charter challenges because there will often be a reasonable hypothetical where the mandatory minimum is manifestly unfair. The Supreme Court seems to be signaling to lower courts to not be afraid to make judgments that declare mandatory minimums unconstitutional.
In Dickey, a decision by the British Columbia Court of Appeal released earlier this week, that Court struck down mandatory minimums for tracking: where the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years; and where the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence.
Mandatory minimum sentences restrict judicial discretion and limit the available sentences for people accused of crimes. It would appear the Supreme Court is attempting to get Parliament to place the faith back in their appointed Justices to exercise their discretion and trust them to sentence appropriately on a case-by-case basis. This is a promising approach from the Courts, and hopefully we will see more mandatory minimum sentencing provisions struck down as being unconstitutional in the future.