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Judges won’t hear challenge of mandatory minimums

The intersection of Main Street and East Hastings Street in the Downtown Eastside in Vancouver.

Rafal Gerszak/The Globe and Mail

British Columbia's highest court has declined to hear a constitutional challenge of Canada's mandatory minimum jail sentences for drug offences, striking a blow to critics who say the legislation unfairly punishes vulnerable people.

The B.C. Court of Appeal had been expected to hear the challenge Thursday, as part of an appeal in the case of Joseph Lloyd. Mr. Lloyd, a resident of Vancouver's Downtown Eastside and an addict, was convicted of possession for the purpose of trafficking earlier this year. He was stopped by police for riding his bicycle on the sidewalk and was found to be carrying less than 10 grams of heroin, crack cocaine and methamphetamine.

He was sentenced to one year in jail but the trial judge, in his ruling, declared the mandatory minimum sentence for drug trafficking of no force and effect, and said it could be considered cruel and unusual punishment. The Crown appealed, and both the B.C. Civil Liberties Association and the Pivot Legal Society sought intervenor status to challenge the constitutionality of the federal legislation.

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The three-judge Court of Appeal panel, however, quickly dismissed the constitutional aspect of the case. It did not provide reasons, saying they would be issued Friday, but indicated the trial judge at some point made an incorrect assumption.

Adrienne Smith, a Pivot lawyer, said outside she was disappointed in the result. But she and Raji Mangat, a lawyer with BCCLA, said the case would not be the last court challenge of mandatory minimum jail sentences.

"This issue is not going anywhere," Ms. Mangat said. "We're going to see these cases and we're going to see people who are going to be disproportionately sentenced … [in cases] that do not take into account the circumstances of the offence and the offender, and don't look at the moral culpability of the offender. And that's a profound injustice and that's going to continue until somebody can come before the court and convince them that they need to hear the constitutional issues that are at the core of this case."

Inside court, the judges grilled the parties from the outset on why the constitutional challenge should be heard. Paul Riley, the lawyer for the Crown, said the trial judge didn't consider the mandatory minimum sentence and Mr. Lloyd's punishment was, therefore, unfit. He had argued Mr. Lloyd should be sentenced to two years less a day.

David Fai, Mr. Lloyd's lawyer, had argued at trial for a sentence of three to four months, though he said the one-year sentence was suitable.

He said Mr. Lloyd was selling only a small amount of drugs and suffered from addiction.

Matthew Nathanson, who represented BCCLA at the hearing, told the court it is undeniable that vulnerable people will receive lengthier sentences as a result of the mandatory minimum sentences.

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"The kind of people that this section operates the most unfairly against are the kind of people that are the least equipped to deal with it," he said. "…They are the most vulnerable members of society."

The judges were ultimately unmoved, deciding not to hear the constitutional aspect of the case. They did agree to hear arguments on whether the sentence given to Mr. Lloyd was fitting.

A federal government spokesman, when asked for the government's response to the Court of Appeal not hearing the constitutional challenge, did not provide a response.

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