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Mandatory minimum sentences on hold after judge’s ruling

Crystal methamphetamine, with paraphernalia.

Tim Wright/The Associated Press

A B.C. judge is the latest to challenge Ottawa's tough-on-crime legislation, finding that mandatory minimum sentences for repeat drug offenders violate their Charter rights.

Judge Joseph Galati sentenced Joseph Lloyd on Wednesday to 191 days in prison for three counts of drug possession for the purpose of trafficking. The sentence falls well short of the one-year minimum the law requires.

In a Jan. 24 ruling in the case, Judge Galati said in situations such as Mr. Lloyd's, a one-year minimum would constitute cruel and unusual punishment, prohibited by Section 12 of the Charter of Rights and Freedoms. Mr. Lloyd was convicted on drug charges last September. His defence argued that the mandatory minimum sentence was unconstitutional, leading to Judge Galati's ruling last month.

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At the time, Judge Galati declared the law in question to be of "no force and effect" in B.C.

Provincial judges will be bound by his ruling in future cases unless it is overturned when it is appealed – and it is expected to be appealed.

The province responded to the ruling Wednesday: "We will review the decision carefully and assess any implications it may have for prosecutions under provincial authority," B.C. Ministry of Justice spokeswoman Lori DeLuca wrote in an e-mail. The federal Department of Justice did not respond to requests for comment.

With the sentencing, Judge Galati adds a British Columbia voice to those of other Canadian judges who have refused to follow various aspects of the federal Conservatives' new laws.

Last month, the Supreme Court of Canada began hearing the federal government's appeal of rulings in Ontario and Nova Scotia that took issue with the Truth in Sentencing Act. The judges argue the act restricts their sentencing discretion because it eliminates the practice of giving offenders 1.5 times credit for time spent in pretrial custody. Judges often offer this credit to reduce time in prison after sentencing.

Mr. Lloyd, a small-time dealer in Vancouver's Downtown Eastside, was selling drugs to support his own addiction. The 25-year-old has 21 prior convictions, including a drug conviction in 2012, making him subject to the one-year mandatory minimum sentence under the federal government's Safe Streets and Communities Act of November, 2012.

"This is a situation which happens daily in the Downtown Eastside of Vancouver and is in no way a far-fetched or extreme scenario," Judge Galati wrote in his Jan. 24 ruling.

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"A one-year jail sentence [under these circumstances] … is a sentence which Canadians would find abhorrent or intolerable," he wrote. Judge Galati also awarded Mr. Lloyd "enhanced credit for time served."

Mr. Lloyd's lawyer, David Fai, said Tuesday that mandatory minimum sentences are problematic because they remove judges' discretion. He said the federal government's enactment of mandatory minimum sentences was political.

"They get to say, 'We're tough on crime, we're going to make you safer,' when in fact we're all safer than we were 10 years ago anyhow because the crime rate is going down," Mr. Fai said.

Many other jurisdictions that have mandatory minimum sentences, most notably the United States, have been moving away from the practice in recent years. Most Commonwealth countries with mandatory minimums have an "escape clause" judges can use to bypass the minimums if they deem necessary.

Mr. Fai would like to see mandatory minimum sentences for non-violent drug offenders struck down altogether.

"We're going in the opposite direction of the rest of the world, at a time when our crime rate is historically low," Mr. Fai said. "It really makes no sense."

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