Two of Harper’s Laws Ruled Unconstitutional by Supreme Court

Update: see previous posts – October 29, 2015 Elizabeth May’s Wish List to Repair Stephen Harper’s Decade of Damage, November 18, 2012 Justice Delayed is Justice Denied – Section 11(b) Stay of Proceedings, March 15, 2012 Harper’s Omnibus Crime Bill C-10 Isn’t Charter Compliant

Inside the Supreme Court of Canada courtroom. photo by
Inside the Supreme Court of Canada courtroom. The Supreme Court ruled in R. v. Lloyd, 2016 SCC 13 that a minimum sentence of one-year, under Bill C-10 infringes section 12 of the Charter which isn’t justified under section 1 of the Charter. (s. 5(3)(a)(i)(D) of the Controlled Drugs and Sustances Act, S.C. 2012 1996, c. 19 (“CDSA”), was enacted in 2012 as part of the Safe Streets and Communities Act, S.C. 2012, c. 1 (see s. 39(1)), also known as Bill C-10. There have been only two instances since the advent of the Charter where the Court has found that a mandatory minimum sentence infringes s. 12: Smith and Nur. This will be the third case. photo by

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The Supreme Court of Canada has ruled that two key “tough on crime” measures brought in by the previous Conservative government are unconstitutional.

In the first case, the court ruled 6-3 that a mandatory minimum sentence of one year in prison for a drug offence violates the Charter of Rights and Freedoms.

It centres on Joseph Ryan Lloyd, an addict from Vancouver’s Downtown Eastside, who was convicted of trafficking after police caught him in 2013 with less than 10 grams of heroin, crack cocaine and crystal methamphetamine.

The court ruled the sentence cast too wide a net over a wide range of potential conduct, catching not only the serious drug trafficking that is its proper aim, but also conduct that is “much less blameworthy. ”

The Supreme Court of Canada. The Supreme Court of Canada released rulings Friday on two key sentencing reforms brought in by the Conservative government. photo by
The Supreme Court of Canada. The Supreme Court of Canada released rulings Friday on two key sentencing reforms brought in by the Conservative government. photo by

“If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentence,” the decision reads. “In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment.”

The dissenting view argued that the law as drafted was narrow enough, and that it did not amount to cruel and unusual punishment.

The sentence imposed stemmed from the so-called “omnibus crime bill” brought in by the Stephen Harper government in 2012. The Safe Streets and Communities Act, also known as C10, made sweeping changes to Canada’s criminal justice system, including mandatory minimum sentences for non-violent drug offenders.

Supreme Court of Canada. The Supreme Court ruled in <a href=
The Supreme Court unanimously ruled in R. v. Safarzadeh‑Markhali 2016 SCC 14. This was on appeal from the Court of Appeal for Ontario. The Court found that the defendant’s rights to s. 12 of the Charter (which could not be saved by s.1) were infringed upon. The legislation at the centre of this appeal was the Truth in Sentencing Act. The Act deprived Safarzadeh‑Markhali of enhanced credit time for the time he was in custody waiting for his trial, due to the fact that he was denied bail due to his prior criminal record. photo by

Credit for time served

In the other case, the Supreme Court was unanimous in ruling that a person who is denied bail because of prior convictions should be able to receive credit for time served before sentencing.

Normally, a person denied bail can get 1.5 days of credit for each day spent in pre-sentence custody, reflecting what are often harsh conditions with a lack of access to programs.

Under sentencing reforms introduced by the Conservatives in 2009, a person denied bail because of a previous conviction is not eligible for enhanced credit.

Front door to the Supreme Court of Canada's courtroom. photo by
Front door to the Supreme Court of Canada’s courtroom. photo by

‘Ineffective, costly and unjust’

The B.C. Civil Liberties Association, which acted as an intervener in both cases, applauded the rulings.

Staff lawyer Laura Track called mandatory minimum sentences “ineffective, costly and unjust.”

“Judges must be able to weigh all of the evidence and decide on a fair sentence that fits the crime,” she said in a release. “Mandatory minimums take away judges’ ability to do just that.”

A mandate letter from Prime Minister Justin Trudeau to Justice Minister Jody Wilson-Raybould called for an overhaul of the measures brought in by the Conservatives.

“You should conduct a review of the changes in our criminal justice system and sentencing reforms over the past decade with a mandate to assess the changes, ensure that we are increasing the safety of our communities, getting value for money, addressing gaps and ensuring that current provisions are aligned with the objectives of the criminal justice system,” the letter reads.

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