Supreme Court Strikes Down Mandatory Minimum

Written on Behalf of Affleck & Barrison LLP

This past Friday, the Supreme Court of Canada released two significant criminal law decisions reversing two laws that formed part of former prime minister Stephen Harper’s tough-on-crime agenda.

The first decision, R v Safarzadeh-Markhali, 2016 SCC 14, deals with the Truth in Sentencing Act, a controversial piece of legislation passed by the Conservative government in 2009. At issue in this case is s.719(3.1) of the Criminal Code, which prohibits a judge from giving more than one-for-one credit for pre-trial custody served by an accused. Mr. Safarzadeh-Markhali, who was arrested on possession of marijuana and eight firearms offences, was denied bail because of his prior criminal record. He was convicted on all but one of the firearms offences and prior to his sentencing, he argued that the prohibition against giving additional credit for pre-trial custody violates section 7 of the Charter of Rights and Freedoms and the Supreme Court unanimously agreed. Despite objections from the former Conservative government, judges were routinely giving 1.5 days of credit for each day served following a previous Supreme Court decision.

The second decision, R v Lloyd, 2016 SCC 13, deals with the Safe Streets and Communities Act, an omnibus crime bill introduced by the Conservatives in 2012 which made sweeping reforms to Canada’s justice system. The central issue in this case was the mandatory minimum sentence of one year for drug traffickers who have a previous trafficking conviction. The Court held that the sentence constitutes cruel and unusual punishment and is therefore unconstitutional.  In this decision, the Court also suggested that other mandatory minimum sentences are vulnerable to being struck down under the same reasoning, effectively inviting Parliament to reconsider whether it wants to maintain mandatory minimum sentences at all. A huge number of mandatory minimum sentences were introduced by the former Conservative government and have been criticized by many for taking away judicial discretion.

These decisions, both of which were written by Chief Justice Beverly McLachlin, return the power of discretion to the Canadian judiciary.

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