The Supreme Court got it wrong in a 6-3 split decision

Apr 17, 2016

The Supreme Court got it wrong.

Not spectacularly wrong. After all, this is no longer the court of former Chief Justice Antonio Lamer. During Lamer’s tenure (1990 to 2000), the court frequently made up new laws and new rights out of thin air.

In one especially appalling decision — the 1999 Marshall case from Nova Scotia — the Lamer court so badly misinterpreted the history of the early Maritime treaties with First Peoples that it was forced to issue a formal correction of its ruling.

Oops, the majority said, we got the whole thing upside down and backwards, but we’re sticking with our decision to let indigenous people fish commercially out-of-season anyway.

So when I say the majority on the current McLachlin court erred in its decision Thursday to strike down mandatory minimum sentences for drug offences, I don’t mean they royally messed up the legal principles the way the previous Lamer court might have.

The case revolves around the sentencing of Joseph Ryan Lloyd, an addict and small-time drug pedlar in Vancouver’s Downtown Eastside, the saddest, most blighted neighbourhood in the country. It is home to as many homeless people and career substance abusers as anywhere on the continent.

Lloyd was convicted in September 2014 of three counts of possessing less than 10 grams of crack, meth and heroin for the purposes of trafficking. Because he had an earlier conviction for similar offences, just two years before this one, the former Tory government’s Safe Streets and Communities Act mandated the trial judge had to sentence Lloyd to a minimum one year in jail.

The B.C. judge deemed one year to be the proper length of sentence, but ruled the fact that one year was the mandatory minimum was a violation of Lloyd’s Charter rights. (Talk about debating how many angels can dance on the head of pin.)

The B.C. appeals court disagreed. It said the fact the trial judge gave Lloyd the same jail term as required by the Tory law showed the mandatory minimum was not cruel and unusual punishment.

But in Thursday’s ruling, the Supreme Court agreed with the trial judge.

Writing for the majority, Chief Justice Beverley McLachlin said that while Parliament may be justified in setting mandatory minimums in many cases, in this case a law designed to send away “a professional drug dealer who engages in the business of dangerous drugs for profit (and) who is in possession of a large amount of drugs,” ended up ensnaring a troubled man who shared a small amount of his personal stash with a street friend.

McLachlin’s sentiment in noble. Lloyd probably needs rehab more than incarceration.

But as the minority (which included Alberta justice Russell Brown) pointed out in the 6-3 decision, it is not as if the law has no flexibility in it, at all.

The mandatory minimum, according to the minority, comes into effect only for repeat offenders “who traffic in serious drugs and who have a prior related conviction or served a prison term for a drug offence within the past 10 years.”

It excludes people whose prior is for simple possession. It applies only to repeat traffickers of dangerous drugs. And even they can avoid the mandatory sentence if they “successfully complete a treatment program between conviction and sentencing,” which Lloyd failed to do.

The most objectionable part of the majority’s ruling, however, is that it appears the justices went looking for a case that gave them an excuse to overturn the law.

Lloyd deserved a year in jail. He got a year in jail. But, oh yeah, that’s unconstitutional.

That’s wrong.