Mandatory minimum sentencing reduces judges’ discretion to consider all of the specifics of a case and the potential impacts of a sentence on a human life. Just like each of us, people accused of drug offenses vary in their life circumstances and in their experiences of marginalization and disadvantage. That’s why it’s crucial that courts be at liberty to consider all relevant factors when determining a sentence: Was the criminal behaviour shaped by the offender’s experience of victimization, abuse, or addiction? Did the crime involve violence? If the accused is a caregiver or a custodial parent, would a lengthy prison sentence cause harm to a child or a family?
West Coast LEAF is committed to advancing substantive equality. We believe that justice is served when the differences among people are recognized and respected, not when all people receive identical treatment without consideration of systemic inequalities or personal needs and circumstances.
That’s why West Coast LEAF is in Ottawa today at the Supreme Court of Canada as an intervener in Lloyd v R.
The case challenges the constitutionality of a section of the Controlled Drugs and Substances Act, which creates a mandatory minimum jail term of one year for drug possession in specific situations. West Coast LEAF is arguing that the mandatory minimum sentence at issue in this case will have disproportionately negative consequences for women.
“The provision in this Act means that judges are less able to consider the circumstances of a crime, including being responsive to historic disadvantages experienced by offenders from marginalized groups,” said West Coast LEAF’s Director of Law Reform, Kendra Milne. “Judges must have the discretion to consider all relevant circumstances for each offender, including the different ways that women become engaged in drug-related crimes and the disproportionate impact incarceration may have on them, when determining an appropriate sentence in a given case.”
West Coast LEAF’s involvement in the case builds on our work to insure that the human rights of women in the criminal justice system are protected, including our work on the rights of incarcerated mothers and on the inadequate provincial jail facilities for women in BC. Before the passage of the bill that resulted in the sentencing provision at issue in Lloyd, West Coast LEAF called on the Minister to consider the impacts of the proposed legislation on women and Aboriginal peoples and to respect the equality rights guaranteed in the Charter.
“The mandatory jail sentence at issue in this case perpetuates discrimination and the historic disadvantage experienced by women in Canada by removing the option of community sentences in some cases,” explained Milne. “The likelihood that women will be jailed farther from their home communities, and the unequal impact experienced by incarcerated women on caregiving — most importantly on child custody and motherhood — make this a critical case for women’s equality in Canada.”
We are grateful to co-counsel Kasandra Cronin and Joana Thackeray (on leave) for their determination and hard work on this case.
Read more about our work in this landmark case for substantive equality in Canada’s criminal justice system here.