Case summary

The case challenged the constitutionality of section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, which created a mandatory minimum jail sentence of one year for drug trafficking in certain situations. In particular, the case looked at the impacts of mandatory one-year jail sentence on a variety of offenders to determine whether the sentence violated section 7 or 12 of the Charter. West Coast LEAF had previously done law reform work on this issue.

 

Case documents

Application for leave to intervene – Supreme Court of Canada

Factum – Supreme Court of Canada

 

West Coast LEAF’s involvement

As an intervener, West Coast LEAF argued that:

  • Criminal sentencing must be individualized and contextualized in order to promote the principles of substantive equality in the criminal justice system and the equality guarantee in section 15 of the Charter.
  • Reducing judicial sentencing discretion means that judges are less able to consider the circumstances of the offence and ensuring that any sentence is responsive to the historic disadvantage experienced by offenders from marginalized groups, including women.
  • The imposition of the mandatory minimum sentence at issue in this case would have disproportionately negative consequences for women because of the nature of their involvement with the drug trade, this impact of incarceration on child custody and motherhood, and the likelihood that BC women will be jailed far from their home communities.

Our involvement in the case built on our existing work to insure that the human rights of incarcerated women are protected, including our work on the rights of incarcerated mothers and on the inadequate provincial jail facilities for women in BC.

 

Decision

The Supreme Court of Canada released its decision on April 15, 2016. The Court ruled that the mandatory minimum sentence violates section 12 of the Charter, which guarantees the right not to be subjected to cruel and unusual punishment. It affirmed that judges must have the discretion to meaningfully consider all of the offender’s circumstances in deciding what sentence to order as a part of understanding the offender’s actual degree of fault. This is an important finding for female offenders, as women’s engagement in drug trafficking offences often occurs in a lower ranking, higher risk drug mule role, where they are particularly vulnerable and visible in their interactions with law enforcement.

This decision is a victory for fairness and for women’s equality. The Court affirmed that judges must have room to consider the actual circumstances of the offender. This allows courts to be responsive to historical disadvantages experienced by offenders from marginalized groups in society, including women, particularly those for whom disadvantage is compounded by the intersection of vulnerabilities. West Coast LEAF will continue to work on protecting women’s human rights as they affect women’s interactions with the criminal justice system.