Mandatory Minimum

Ontario Judge Strikes Down Mandatory Minimum Sentence for Indigenous Offender Convicted for Impaired Driving

Written on Behalf of Affleck & Barrison LLP

Justice Paul Burstein has declared that Canada’s impaired driving laws are unconstitutional.

Justice Burstein ruled in the case of R. v. Luke that the mandatory requirement for a criminal conviction of a first impaired driving offence violates the Charter of Rights and Freedoms protections against cruel and unusual punishment.

WHAT HAPPENED?

Morgan Luke (“Luke”) is a 22-year-old Indigenous woman from the Mississaugas of Scugog Island First Nation.  She was raised by her mother and maternal grandparents.  Her Aboriginal ancestry is derived from her father, who she did not see much as she was growing up.  He was a drug addict, alcoholic and had a lengthy criminal record. 

As she grew older, Luke began to spend time at the Scugog Island reserve, participating in cultural activities and working summer jobs.  She also had contact with her paternal family on the reserve.

Luke’s mother became ill when she was 15 years old, at which point she began spending more time with her father and moved to the Scugog Island reserve for 2 years.  She began abusing drugs and alcohol and dating an older man who was a serious drug addict.

On November 4, 2017, Luke took her mother’s car without consent.  She accelerated quickly out of the parking lot, causing the back of the car to slide out.  She overcorrected and the car hit a curb and left the ground.  The car landed on the sidewalk, just missing a lamp post. 

Luke proceeded along Highway 7A when she was stopped by the police.  The officer noticed a strong odour of alcohol on her breath and she admitted to having consumed alcohol.  She was arrested for impaired driving and breath tests showed that her blood alcohol concentration was almost three times the legal limit. 

According to Luke, she had been drinking all afternoon as she was upset after seeing her cousin with her boyfriend.

Following her arrest, Luke began counselling with two professionals associated with the Scugog First Nation.  She has stopped using drugs and alcohol and has plans to finish high school and become a youth worker on the reserve.

THE CONSTITUTIONAL ARGUMENTS

Luke pleaded guilty to the charge of driving while impaired by alcohol.  Section 255(1) of the Criminal Code provides a mandatory minimum sentence of a fine of not less than $1,000 to an individual who has been found guilty of impaired driving for the first time.  This would result in a conviction and a criminal record.

According to section 730 of the Criminal Code, a court may grant an absolute or conditional discharge when it is in the best interest of the individual and is not against the public interest.  A discharge of this nature does not result in a criminal conviction or a criminal record.   However, under this section of the Criminal Code, discharges are not available to offenders who have been found guilty of offences that hold a mandatory minimum punishment.

Luke challenged the constitutionality of section 255 of the Criminal Code as it applies to the sentencing in her case.  It was Luke’s position that section 255(1), which prevents the consideration of a discharge, violates her rights under the Charter.   It was argued that the legislation provides a mandatory minimum sentence rather than allowing for a consideration of a discharge, thus allowing a punishment that is “grossly disproportionate” to an otherwise appropriate sentence.

On the other hand, the prosecuting Crown lawyers argued that section 255 does not violate the Charter, given the seriousness of the offence of impaired driving.  Although the mandatory minimum punishment may seem disproportionate in some cases, it is not “grossly” disproportionate, which is the requirement for a Charter violation. 

It is well-established law that legislative provisions which provide mandatory minimum sentences that are “grossly disproportionate” to an appropriate sentence will be found to infringe the Charter.  A court must consider the following in these circumstances:

  1. What would be the appropriate sentence for the offence taking into account the circumstances of the offence and of the offender?
  2. Is the prescribed mandatory minimum sentence grossly disproportionate to the otherwise appropriate sentence for the offender?
  3. If not grossly disproportionate for the offender before the court, could “reasonable foreseeable applications” of the mandatory minimum sentence result in grossly disproportionate sentences for other hypothetical offenders?

If the court finds that the mandatory minimum sentence would be grossly disproportionate for either the offender or another hypothetical offender, it must find that the provision is inconsistent with section 12 of the Charter.

OFFENDER’S INDIGENOUS STATUS CONSIDERED IN RULING

Justice Burstein stated that the mandatory minimum sentence prevents him from considering several factors fundamental to a just and appropriate sanction, including:

  1. She is a young first time offender with strong rehabilitative potential;
  2. The offence was motivated by her alcohol addiction and her continued treatment is expected to effectively deal with this issue; and
  3. The offence was connected to her Aboriginal background and her Aboriginal heritage provides for rehabilitative and restorative sentencing options.

Justice Burstein found that imposing the shame of a criminal record for impaired driving would amount to a grossly disproportionate sentencing implication for Luke.  Justice Burstein wrote:

On the facts of this particular case, I find that it would not be contrary to the public interest to grant Ms. Luke a conditional discharge and thereby relieve her of the lasting consequences of a criminal record.  I am satisfied that a driving prohibition and two years of probation will adequately achieve the level of denunciation and deterrence required in this particular case, while still respecting the importance of Ms. Luke’s rehabilitative potential.

Justice Burstein granted Luke a conditional discharge with various conditions, including to attend counselling and treatment, perform community service work, attend school or maintain a job, and to only operate a motor vehicle when travelling to or from work, school or counselling appointments.

If you have been charged with impaired driving or any other driving offence, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We offer 24-hour phone service to ensure you have access to justice at all times.

Canadians Charged with Importing $30M of Drugs into Australia

Written on Behalf of Affleck & Barrison LLP

Three cruise ship passengers from Quebec potentially face life in prison in Australia, after authorities discovered approximately $30.5 million worth of cocaine in their luggage.

The ship, the MS Sea Princess, sailed from London, England in early July. The cruise made a number of stops, including New York, Bermuda, Colombia, Chile, and New Zealand. Australia was the cruise’s final destination. The trio were arrested when their ship docked in Sydney.

Two of those charged, women in their 20’s, had posted a steady stream of photos of their journey on social media. The third individual was a man in his 60’s.

All three had been identified by border agencies as “high-risk travellers”. The arrest was the result of an exchange of information between several organizations, including the Canadian Border Service Agency and the U.S Department of Homeland Security.

The three Canadians did not enter pleas when charged. They will remain in custody in Australia until their next court appearance in October.

Drug Charges in Canada

What would happen if this cruise’s final destination had been Canada, and the cocaine had been bound for the Canadian market?

A number of drugs, including cocaine, are illegal in Canada. Drugs are categorized into complex schedules under the Controlled Drug & Substances Act. There are hundreds of drugs classified within each of these schedules. They range from heroin, cocaine, and morphine (Schedule I), to marijuana and cannabis resin (Schedule II), and LSD and amphetamines (Schedule III).

Other illegal substances falling variously into these schedules include: hashish, hash oil, crack, mescaline, psilocybin, barbituates, and anabolic steroids. As mentioned in a previous post, the status of marijuana may be changing, however it currently remains illegal for recreational or non-medical use.

There are a number of drug offences in Canada, including possession, drug trafficking, and drug importing/exporting.

Possession

In Canada, possession of illegal drugs and other controlled substances is punishable under both the Controlled Drug and Substances Act as well as the Criminal Code of Canada. Convictions can result in prison time, and/or heavy fines.

Possession can be proven where it can be shown that an accused had knowledge and control of the drug.

The severity of any possession charges laid will vary depending on the type and quantity of the substance involved, and the purposes for which you were in possession of it.

Drug Trafficking

The definition of drug trafficking in Canada is very broad, and includes: offering to sell, selling, giving, or transferring. Sentencing for trafficking can be harsh, particularly for a Schedule I drug, such as cocaine. Many trafficking charges carry mandatory minimum jail sentences. The maximum sentence for trafficking of cocaine (or another Schedule I drug) is life imprisonment.

Drug Importing

The Controlled Drug and Substances Act prohibits importing of Schedule I, Schedule II, and Schedule III substances, including cocaine, into Canada. Anyone who is found guilty of importing more than one kilogram of a Schedule I substance into Canada faces a minimum sentence of two years’ imprisonment, and can face up to life in prison.

Other Things to Know About Drug Offences in Canada

The majority of criminal offences in Canada are prosecuted by a provincial Crown Attorney at a local office. However, drug prosecutions are conducted by the Public Prosecutions Service of Canada, with prosecutors who have specialized and significant experience with drug cases.

Beyond just the spectre of imprisonment, including life imprisonment, a drug conviction can have a significant impact on your life. All drug convictions, even minor ones, go on your criminal record. This can, in turn, affect your travel outside of Canada, or your employment prospects going forward.

If you have any questions about drug charges or any other criminal defence matter, please contact Affleck & Barrison online or at 905-404-1947.

Canadian Degrassi High Actor Arrested on Child Pornography Charges

Written on Behalf of Affleck & Barrison LLP

A former Degrassi High actor and three Ontario women are facing multiple charges, including possessing child pornography, sexual assault, and bestiality.

Jason (Byrd) Dickens, his wife, Dylan Anne McEwen, and two other women were recently arrested following a months long probe by police. Police stated that they initially received a tip about a man uploading inappropriate images online in January 2016. This led to a search warrant in late April, at which time police discovered several devices containing videos and images.

Police believe that Mr. Dickens and Ms. McEwen actively sought out victims online and in person, going by several user names including: RetroDeviant, Byrd_Dawg and Sir Dirk (Mr. Dickens), and Doll, Dirty Doll (Ms. McEwen). Mr. Dickens and Ms. McEwen will appear in Toronto court on Sept. 1.

Police also believe that between January 2000 and January 2006, Mr. Dickens and another woman sexually abused a child and distributed child pornography online. The woman is charged with 10 child sexual exploitation offences, and Mr. Dickens faces six more charges in that case.

Additionally, police allege that Mr. Dickens met a third woman from Thunder Bay, who also faces one charge of making child pornography.

Police are concerned that the individuals may have had contact with “like-minded individuals” and there may be more victims.

Potential Consequences

It is unclear what the outcome of these charges will be. However, child pornography charges are taken very seriously by prosecutors and police.

Child pornography is defined as any media (photo, film, other) that depicts sexual activity with, or that displays the sexual regions of, a person under the age of 18 (Criminal Code of Canada, s. 163.1(1)).  It is a crime to make, publish, or print child pornography. It is also a separate offence to distribute, to possess or to access child pornography, including sharing on or downloading files from the internet.

In 2012, Bill C-10, the Safe Streets and Communities Act, imposed higher mandatory minimum penalties for making, distributing, possessing and accessing child pornography. Sentences for any individuals charged under s. 163.1 of the Criminal Code all carry mandatory minimum sentences, and no discharges, suspended sentences, or fines are available. Penalties include jail time, and a sex offender registration, which can remain on your record for your whole life.

Protecting Children from Child Pornography

Safeguards for those under 18 have been increasing in recent years. In 2011, the government passed Bill C-22, An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. The legislation is intended to keep pace with technology used to distribute and access such content. It requires Internet service providers (ISP’s) and others (for instance, Facebook, Google, Hotmail, etc) to report any incident of child pornography.

Under this legislation, anyone can inform an ISP or other entity that a website, hostpage, or email contains child pornography. The ISP or other entity must then report the address of the site, page, or email as soon as possible to a designated organization or the police.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison LLP online or at 905-404-1947.