A B.C. provincial court judge has adjourned the case of a small time drug dealer to give the Crown a chance to justify the law that says anyone convicted of drug trafficking, who has already served time, must go to jail for a year.
In his written ruling, Judge Joseph Galati says, for some people, that amounts to cruel and unusual punishment contrary to section 12 of the Canadian Charter of Rights and Freedoms.
In September of last year, the provincial court judge convicted Vancouver resident Joseph Ryan Lloyd on three counts of trafficking two grams of crack cocaine, six grams of methamphetamine and a half gram of heroin.
It wasn't Lloyd's first trafficking offence and under Prime Minister Stephen Harper's new tough-on-crime legislation, the resident of Vancouver's Downtown Eastside, should now serve at least a year in jail.
Court documents show Lloyd, who is 25 years old with a Grade 10 education, has 21 prior convictions which include fraud, forgery, theft, assault, possession of a prohibited weapon and a prior drug conviction.
Last March, Vancouver police stopped Lloyd for riding his bicycle on the sidewalk. When they searched him, police found a knife in a sheath and arrested him for breaching the conditions of his probation. That's when they also found the drugs.
Galati says the charge and Lloyd's record could support a sentence of 12 to 18 months, well within the range of the federal mandatory minimum sentence. The judge says his problem is with the lack of discretion in applying it to low-level drug dealers like Lloyd, who sell drugs to feed their own addiction.
Judge says law hurts addicts
Lloyd maintains he was intending to share his relatively small amount of drugs with friends.
"This is a situation which happens daily in the Downtown Eastside of Vancouver and is in no way a far-fetched or extreme scenario," Galati wrote.
"Many of these persons have prior convictions for drug offences. A one year jail sentence for this [type of] hypothetical offender goes well beyond what is justified by the legitimate penological goals and sentencing principles of the Controlled Drugs and Substances Act," the judge wrote.
"It is a sentence which Canadians would find abhorrent or intolerable," Galati says. "Accordingly, I find that the mandatory minimum sentence of imprisonment for one year... constitutes cruel and unusual punishment."
Defence lawyer David Fai says the ruling is about tailoring punishment to individual circumstances as opposed to a one-size-fits-all approach.
"The effect of this legislation is that we could lock up three quarters of the people that live on the Downtown Eastside," he says.
In November, the Ontario Court of Appeal struck down three year mandatory minimum sentences for possession of a loaded prohibited gun, declaring the law, part of the federal Conservatives' 2008 omnibus bill, unconstitutional.
Galati has adjourned sentencing to give the Crown time to address his findings. In the meantime, he says, Lloyd will receive 'enhanced credit' for time served.