BC court deals another blow to Stephen Harper government’s tough-on-crime laws

Outgoing Prime Minister Stephen Harper arrives at his Langevin office in Ottawa, Wednesday Oct. 21, 2015.
Outgoing Prime Minister Stephen Harper arrives at his Langevin office in Ottawa, Wednesday Oct. 21, 2015. THE CANADIAN PRESS/Adrian Wyld

VANCOUVER – The former Conservative government’s tough-on-crime agenda has suffered another blow as British Columbia’s highest court strikes down two more mandatory-minimum sentencing laws, ruling them unconstitutional.

On Monday, the B.C. Court of Appeal overturned compulsory two-year minimum sentences for drug trafficking convictions that involve someone under the age of 18 or that occur in a public place frequented by youth.

A unanimous decision from the three-person panel says a minimum sentence of two years in such instances may be at times “grossly disproportionate” to the crime committed, and therefore amounts to cruel and unusual punishment.

READ MORE: Supreme Court rules Harper government’s tough-on-crime law unconstitutional

This week’s ruling is the latest in several cases where courts have overturned mandatory-minimum sentences that are the legacy of the former Conservative government.

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A Supreme Court of Canada decision earlier this month put an end to minimum sentences for specific drug crime convictions and limits on pre-trial credit in certain conditions where bail is denied.

Last year, the high court upheld a decision from the Ontario Court of Appeal, which ruled that minimum sentences for some gun crimes constitute cruel and unusual punishment because they risk ensnaring people with “little or no moral fault” and who pose “little or no danger to the public.”

Prime Minister Justin Trudeau responded to the earlier ruling by saying his government was reviewing the laws around such sentences.

The Justice Department did not respond to a request for comment about the most recent court decision.

The public prosecution service has 60 days to file leave to appeal.

“I think the message is written on the wall, so to speak,” said lawyer David Fai about the most recent ruling. “I think the court is sending a message.”

Fai was a defence lawyer in one of the three cases referenced in this week’s B.C. Court of Appeal ruling.

His client, Chad Dickey, was arrested in 2013 while selling cocaine to an undercover police officer near a gymnastics club in Quesnel, B.C.

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Noting his considerable rehabilitation following his arrest, the B.C. Supreme Court judge sentenced Dickey to 20 months’ probation.

The other cases addressed in the appeal decision also stemmed from so-called dial-a-dope cocaine arrests in 2013.

Police arrested Marco Trasolini in Burnaby and Cody Bradley-Luscombe in Duncan on Vancouver Island. Both were sentenced to eight months in prison.

READ MORE: Liberals defend Conservative crime laws in court – for now

The Crown appealed all three decisions, calling them unfit, but they were all overturned in this week’s ruling.

“It would be nice to put an end to these things,” said Fai, who successfully argued for the Supreme Court to overturn two other mandatory-minimum laws.

“The public expense in taking these cases to appellate courts, it’s not cheap.”

Parliament could pass a law rescinding the previous government’s legislation around mandatory minimum sentences, said Fai, though he noted the dilemma of a government not wanting to appear soft on crime.

When appointed attorney general, Justice Minister Jody Wilson-Raybould was given a mandate letter directing her to quickly intervene in court cases where the former government’s position is contrary to the Liberal platform.

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Prime Minister Justin Trudeau pledged during the federal election campaign to implement the recommendations of the Truth and Reconciliation Commission, which includes a direction to depart from mandatory-minimum sentences.

“They may just prefer to have the courts rule on these things so they can stand on the sidelines,” Fai said.

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