Two Mandatory Minimum Cases Found Unconstitutional

This fall the Ontario Superior Court found two mandatory minimum sentences to be unconstitutional.

The attorneys who have launched successful challenges say that this might be the beginning of similar rulings in other mandatory minimum cases over then next few months.

The first case of the mandatory minimum being struck down involves sentencing provisions found in the Controlled Drugs and Substances Act, as it relates to marijuana grow-ops.

The defendant, Duc Vu, was charged by Peel Regional Police after executing a search warrant on a residential home in Brampton where they found over 1,000 plants and 66 kilograms of wet marijuana.

Vu faces the mandatory minimum sentence of three years in prison for being found guilty of running a grow-op that had more than 500 plants. The Crown was able to prove in court that this operation posed a potential public safety hazard in that residential area.

Earlier this year, the R v. Nur decision established that mandatory minimum sentences for illegally possessing a loaded firearm would be “grossly disproportionate,” therefore violating the cruel and unusual punishment clause of the Charter.

Dirk Derstine, a partner at Derstine Penman, acted for Hussein Nur in this firearms case and he comments that, “Once you accept the premise that a provision is unconstitutional, a lot of these laws are fairly similar.”

Superior Court Justice Bruce Durno addressed what the Supreme Court in Nur said in regards to the use of a reasonable hypothetical to determine if a punishment is significantly disproportionate.

“The majority in Nur found a court was simply asking: what is the reach of the law? What kind of conduct may the law reasonably be expected to catch? In deciding the type of cases that mandatory minimum sentences may reasonably be expected to capture, judges are to bring to bear their judicial experience and common sense.”

The courts have been concerned over the recent mandatory minimum sentences authorized by the Harper government, according to defence lawyer John Norris.

Norris said that “Mandatory minimums, given how broadly they’ve been applied, have sat uneasily with the judiciary. They are problematic from a principled point of view.”

Norris, representing Vu, made the argument that since the mandatory minimum was three years for a first offender, loaded gun charge was found to be in violation of the Charter, it was not proportionate to give the same sentence to the operator of a cannabis grow-op who that was found to only be a “potential” public safety issue.

The mandatory minimum of three years is the same that would be issued to people convicted of large-scale production of drugs such as cocaine and heroin.

Justice Durno did agree that mandatory minimums for operations with less than 200 plants might also pertain to licensed cannabis producers who unintentionally went over the number of plants legally allowed according to their permit. The Justice found these sections to be in violation of the Charter. Durno requested the federal Crown and Norris to provide additional written submissions concerning the constitutionality of the mandatory minimum sentences for marijuana grow-ops.

These two cases are promising in regards to the future of legalization in the country. Mandatory minimums in the U.S. are known to be contributing to mass incarceration in the world’s largest prison system.

Earlier this year, even President Obama publicly called for an overhaul of the prison system which would include an end to mandatory minimums for nonviolent drug offenders.

So Canada will likely move in this direction as well, as these two cases will set important precedents.