Toronto legal clinic launches challenge to mandatory minimum sentence

September 21, 2017
Article Source
The Lawyer's Daily

Toronto's Aboriginal Legal Services (ALS) has launched a Charter challenge to a mandatory minimum sentence for a First Nations woman who pleaded guilty to importing cocaine, arguing the sentence violates protections against cruel and unusual punishment.

Program director Jonathan Rudin said ALS is in the process of arguing two Charter challenges — one, that the provision of the Controlled Drugs and Substances Act calling for a mandatory minimum sentence of two years violates s. 12 of the Charter, which prohibits cruel and unusual punishment, and two, a corresponding restriction on conditional sentences violates the Charter’s s. 15 guarantees of equality rights because it has a disproportionate effect on Indigenous offenders.

"So even if we're successful in knocking out the mandatory minimum, then she still can't get a conditional sentence," he said. "The argument we're making to the court is that the restriction on conditional sentences exacerbates the over-representation of Aboriginal people in prison and furthers the discrimination they face."

Cheyenne Sharma was arrested in June 2015 at Pearson International Airport with nearly two kilograms of cocaine in her suitcase. Rudin said Sharma was told she would be paid $20,000 for transporting the bag and did not know it contained drugs.

"She knew she was doing something she probably shouldn't. She's not naïve," he said. "But she was quite forthright the moment she was stopped at the airport."

Rudin said mandatory minimum sentences "really take away the ability of judges to fashion appropriate sentences," pointing to the Supreme Court of Canada decision in R. v. Lloyd, 2016 SCC 13, and the Ontario Court of Appeal's decision in R. v. Morrison, 2017 ONCA 582.

"The essence is mandatory minimums are being challenged and are falling all across the country," he said. "So if you're looking at the approach the courts are taking, in a case like this where we think a conditional sentence is appropriate for her, two years seems to strike me as pretty significantly cruel and unusual punishment."

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