Liberals defend Conservative crime laws in court – for now

The Supreme Court of Canada building is shown in Ottawa on April 14, 2015. THE CANADIAN PRESS/Sean Kilpatrick.

OTTAWA – The Liberals have promised to review their Conservative predecessors’ so-called tough-on-crime laws. But until that happens, government lawyers were in court Wednesday defending some of the most widely-criticized Tory policies – mandatory minimum sentences for drug crimes.

It’s the new government’s first legal test on mandatory minimums, enacted by the Conservatives in an omnibus crime bill in 2012.

The Liberals have previously said mandatory minimums don’t work and Prime Minister Justin Trudeau told Global News during the election campaign that he’d consider ending them for at least some offences.

Watch: Trudeau talks mandatory minimum sentences

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Justice Minister Jody Wilson-Raybould’s mandate letter instructs her to review sentencing reforms from the past decade to make sure they’re working. It also commits to ending legal appeals that are “not consistent with our commitments, the Charter or our values.”

So NDP justice critic Murray Rankin is confused: Why was the federal Crown defending mandatory minimums at the Supreme Court on Wednesday?

“I think this is really an important early indicator of whether the Liberal government is going to be really putting its money where its mouth is,” Rankin said in an interview.

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“I acknowledge that time will need to be taken to get new laws in place to reverse some of the damage that the Conservatives did to our criminal justice system, but when you are before a court and you’re dealing with a real offender, you have an opportunity to show whether you’re serious about those changes.”

A department of justice spokesman said in an email that work is underway to change Canada’s sentencing rules, “but it would be premature to comment on what legislative changes will be made or how individual litigation matters will be impacted.”

The case before the high court concerns Joseph Lloyd, a British Columbia man who was convicted of drug trafficking in 2013.

At the time, the trial judge ruled that the one-year mandatory minimum prison sentence was unconstitutional and inconsistent with the right against cruel and unusual punishment under section 12 of the Charter.

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But the judge still gave Lloyd, who has 21 previous convictions and carried a knife at the time of his arrest, the mandatory one year in jail for possessing cocaine, heroin, and methamphetamine.

Lloyd told the judge he was addicted to all three drugs, and was involved in trafficking to pay for his own supply.

The B.C. Court of Appeal judge said the trial judge should have never ruled on the constitutionality of the mandatory minimum jail sentence in the first place – and increased Lloyd’s sentence to 18 months, well over what the mandatory minimum required.

‘Struck from the books’

Crown prosecutor Paul Riley argued Wednesday the trial judge shouldn’t have made a declaration about constitutionality of mandatory minimums.

He said Lloyd’s one-year sentence was appropriate, considering aggravating factors such as his previous convictions.

“The minimum one year jail term does not offend the stringent standard of gross disproportionality,” he said.

Riley steered clear of making any statements about mandatory minimums in general, but said this particular sentence was justified.

Adrienne Smith, a lawyer with Pivot Legal Society in Vancouver, says mandatory minimum sentences hurt drug addicts, women and indigenous people and should be struck down.

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READ MORE: Plan for minimum, mandatory drug sentences draws fire

She said drug addicts need treatment, not jail time, and women are often separated from their children when they go to prison. In cases of aboriginal offenders, judges are not able to apply the circumstances of an indigenous offender’s background, enshrined in law and known as a Gladue report, into sentencing.

“The sentence has to fit the crime. So judges look at the circumstance of the crime, and the circumstance of the offender, and look at the sentence that fits. But when there’s a mandatory minimum sentence in place, that analysis is impossible,” said Smith, whose group is intervening in the case.

“The mandatory minimum sentence should be struck from the books, and judges should be allowed to do their work.”

Smith hopes a Supreme Court ruling will prompt the Liberal government to action on mandatory sentences for drug crimes and some 50 other offences .

“The government has the power to strike all of them and let judges get back to their job of crafting fit sentences.”

The Supreme Court recently struck down the Harper government’s three-year mandatory minimum sentences for gun possession, but in 2008 upheld a four-year mandatory minimum for manslaughter with a firearm.

The court reserved judgment on Lloyd’s case and will rule at a later date.


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