Pubdate: Fri, 21 Feb 2014
Source: Vancouver Courier (CN BC)
Copyright: 2014 Vancouver Courier
Contact:  http://www.vancourier.com/
Details: http://www.mapinc.org/media/474
Author: Mike Howell
Referenced: Canadian Charter of Rights and Freedoms:
http://laws-lois.justice.gc.ca/eng/const/page-15.html

JUDGE RELIEVES B.C. MAN FROM MANDATORY PRISON TIME

Federal Sentencing Law Has 'No Force' In B.C.

A Vancouver provincial court judge ruled Wednesday that applying the 
Harper government's mandatory minimum sentence law of one year in 
prison to a small-time drug dealer constitutes "cruel and unusual 
punishment" and declared it to be "of no force and effect" in B.C.

Judge Joseph Galati made the ruling in sentencing long time offender 
Joseph Ryan Lloyd, 25, who was convicted on three counts of 
possession of small amounts of crack cocaine, methamphetamine and 
heroin for the purpose of trafficking.

"The government would be remiss in its duty to the citizens of Canada 
if it did not attempt to combat trafficking but must do so in 
adherence to the Charter [of Rights and Freedoms]," wrote Galati in 
his written reasons for judgment.

Galati sentenced Lloyd, whom he described in court documents as a 
low-level drug dealer, to 191 days instead of the one-year minimum 
sentence, which applied to Lloyd because of a prior conviction for 
drugs. The federal Crown, which will appeal the decision, was 
originally pursuing a sentence of two years, less a day.

The judge's ruling was a result of a constitutional challenge by 
Lloyd's lawyer, David Fai, who described Galati's decision as 
precedent-setting and expected it to affect more cases related to the 
mandatory minimum sentence law, which came into effect in November 2012.

"Other judges should be following this decision," Fai told reporters 
outside the courthouse, one block from the notorious drug dealing 
corner at Main and Hastings. "If you look in this neighbourhood where 
we are - and I don't know the percentages - but there's a lot of 
people that have prior convictions in the last 10 years that are 
addicts, that are sharing with their friends or selling small amounts 
to support their addiction. They'd all be sent to jail for a minimum 
of one year under this legislation."

Added Fai: "So instead of harm reduction, we're just going to sweep 
them into jail."

In earlier testimony, Lloyd said he was addicted to crack cocaine, 
heroin and methamphetamines and sold drugs to support his drug habit. 
He was selling drugs up to four or five days some weeks and less 
often when he found work in construction.

Court documents say Lloyd, who came to Vancouver in 2011 from Alberta 
where he has a five-year-old daughter, has a total of 21 prior 
convictions, including numerous breaches of court orders, several 
fraud or forgery offences, thefts, assault and possession of a 
prohibited weapon.

When police arrested him in March 2013, he was in possession of 2.39 
grams of cocaine, 6.16 grams of methamphetamine and 0.64 grams of 
heroin. He was carrying $304 in cash and a "score sheet" with names 
and numbers, likely to keep track of sales.

Fai said Lloyd completed a couple of drug treatment programs in 
prison and was accepted to a recovery house. Lloyd, dressed in red 
prison sweats during his appearance Wednesday, declined to make a 
statement to the judge.

In a previous court appearance, however, he acknowledged the drugs he 
sold were dangerous and addictive and that, until recently, he had 
not given any thought to the effect the drugs had on the purchasers.

Fai described the Harper government's minimum sentencing laws as 
draconian and "hurt more people than help." He noted a recent 
Statistics Canada report shows the crime rate in Canada has steadily 
declined since 1991.

"Someone much wiser than me once said that the true test of a just 
society is not how it treats its most worthy, but how it treats its 
seemingly least worthy," he said. "This legislation that was declared 
unconstitutional today - and a lot of other legislation passed by the 
Harper government with respect to criminal justice - failed that test 
miserably."

Fai pointed out the Ontario Court of Appeal recently ruled 
unconstitutional the mandatory minimum sentence for firearm-related 
offences. That case will go before the Supreme Court of Canada, the 
same court Fai expects the Lloyd case to end up as it makes its way 
through the higher courts.

Federal Crown Paul Riley declined to comment when questioned outside 
the courtroom but acknowledged the case will be appealed. Riley 
attempted to make an argument in court concerning the effect Galati's 
ruling could have on other cases.

"Whatever your argument is, it's better saved for the court of 
appeal," the judge told Riley before wishing him and Fai "good luck" 
in going forward with the case. He also wished Lloyd good luck.
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MAP posted-by: Jay Bergstrom