S.C.C. File No. 35982 IN THE SUPREME COURT OF (ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA) BETWEE N: JOSEPH RYAN LLOYD APPELLANT - and - HER MAJESTY THE QUEEN RESPONDENT - and - CANADIAN BAR ASSOCIATION, AFRICAN CANADIAN LEGAL CLINIC, PIVOT LEGAL SOCIETY AND UNION OF BRITISH COLUMBIA INDIAN CHIEFS HIV & AIDS LEGAL CLINIC , CANADIAN HIV/AIDS LEGAL NETWORK, BRITISH COLUMBIA CENTRE FOR EXCELLENCE IN HIV/AIDS, PRISONERS WITH HIV/AIDS SUPPORT ACTION NETWORK, AND CANADIAN ASSOCIATION OF PEOPLE WHO USE DRUGS, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, CRIMINAL LAWYERS' ASSOCIATION (ONTARIO) and WEST COAST WOMEN'S LEGAL EDUCATION AND ACTION FUND

INTERVENERS

FACTUM OF THE INTERVENER CANADIAN BAR ASSOCIATION (Pursuant to R. 42 of the Rules of the Supreme Court of Canada)

PECK AND COMPANY GOWLINGS LAFLEUR HENDERSON LLP Barristers Barristers and Solicitors 610-744 West Hastings Street 2600-160 Elgin Street Vancouver, BC V6C 1A5 , ON K1P 1C3 Telephone: (604) 669-0208 Telephone: (613) 786-0171 Facsimile: (604) 669-0616 Facsimile: (613) 788-3587 Email: [email protected] Email: [email protected] Eric V. Gottardi Jeffrey W. Beedell Mila Shah Ottawa Agent for Counsel for the Intervener, Counsel for the Intervener, Canadian Bar Association Canadian Bar Association 2

DAVID N. FAI LAW CORPORATION GOWLING LAFLEUR HENDERSON LLP Barrister and Solicitor Barristers and Solicitors 815 – 402 West Pender Street 2600 – 160 Elgin Street Vancouver BC V6B 1T6 Ottawa, ON K1P 1C3 Tel: 604-685-4150 Tel: 613-233-1781 Fax: 604-986-3409 Fax: 613-563-9869 Email: [email protected] Email: [email protected] David N. Fai Matthew Estabrooks Counsel for the Appellant, Ottawa Agent for the Appellant, Joseph Ryan Lloyd Joseph Ryan Lloyd

PUBLIC PROSECUTION SERVICE DIRECTOR OF PUBLIC PROSECUTIONS OF CANADA 160 Elgin Street, 12th Floor British Columbia Regional Office Ottawa, ON K1A 0H8 900 – 840 Howe Street Tel: 613-957-4770 Vancouver BC V6Z 2S9 Fax: 613-941-7865 Tel: 604-666-0704 Email: [email protected] Fax: 604-666-1599 Francois Lacasse Email: [email protected] Ottawa Agent for the Respondent, W. Paul Riley, Q.C. Her Majesty the Queen Todd C. Gerhart Counsel for the Respondent, Her Majesty the Queen

AFRICAN CANADIAN LEGAL CLINIC BARNES SAMMON LLP 402 – 250 Dundas Street West Barristers and Solicitors , ON M5T 2Z5 400 – 200 Elgin Street Tel: 416-214-4747 Ottawa, ON K2P 1L5 Fax: 416-214-4748 Tel: 613-594-8000 Email: [email protected] Fax: 613-235-7578 Email: [email protected] Roger A. Love Counsel for the Intervener, Bruce F. Simpson African Canadian Legal Clinic Ottawa Agent for the Intervener, African Canadian Legal Clinic 3

FASKEN MARTINEAU DUMOULIN LLP FASKEN MARTINEAU DUMOULIN LLP Barristers and Solicitors Barristers and Solicitors 2900 – 550 Burrard Street 55 Metcalfe Street, Suite 1300 Vancouver, BC V6C 0A3 Ottawa, ON K1P 6L5 Tel: 604-631-4908 Tel: 613-236-3882 Fax: 604-631-3232 Fax: 613-230-6423 Email: [email protected] Andrew I. Nathanson Maia Tsurumi Yael Wexler Adrienne Smith Ottawa Agent for the Interveners, Counsel for the Interveners, Pivot Legal Society and Union of British Pivot Legal Society and Union of British Columbia Indian Chiefs Columbia Indian Chiefs

HIV & AIDS LEGAL CLINIC ONTARIO SUPREME ADVOCACY LLP (HALCO) Barristers and Solicitors 65 Wellesley St. East, Suite 400 100 – 340 Gilmour Street Toronto, ON M4Y 1G7 Ottawa, ON K2P 0R3 Tel: 416-340-7790 Tel: 613-695-8855 Ext: 102 Fax: 416-340-7248 Fax: 613-695-8580 Email: [email protected] Email: [email protected] Ryan Peck Marie-France Major Khalid Janmohamed Ottawa Agent for the Intervener, Counsel for the Intervener, HIV & AIDS Legal Clinic Ontario HIV & AIDS Legal Clinic Ontario

CANADIAN HIV/AIDS LEGAL NETWORK SUPREME ADVOCACY LLP 600 – 1240 Bay Street Barristers and Solicitors Toronto, ON M5R 2A7 100- 340 Gilmour Street Tel: 416-595-1666 Ottawa, ON K2P 0R3 Fax: 416-595-0094 Tel: 613-695-8855 Ext: 102 Email: [email protected] Fax: 613-695-8580 Email: [email protected] Richard Elliot Counsel for the Interveners, Marie-France Major Canadian HIV/AIDS Legal Network, British Ottawa Agent for the Interveners, Columbia Centre for Excellence in HIV/AIDS, Canadian HIV/AIDS Legal Network, British Prisoners with HIV/AIDS Support Action Columbia Centre for Excellence in HIV/AIDS, Network, and Canadian Association of People Prisoners with HIV/AIDS Support Action Who Use Drugs Network, and Canadian Association of People Who Use Drugs 4

MATTHEW A. NATHANSON GOWLING LAFLEUR HENDERSON LLP Barrister & Solicitor Barristers and Solicitors 1000 – 355 Burrard Street 2600 – 160 Elgin Street Vancouver, BC V6C 2G8 Ottawa, ON K1P 1C3 Tel: 604-608-6185 Tel: 613-233-1781 Fax: 604-677-5560 Fax: 613-563-9869 Email: [email protected] Counsel for the Intervener, Matthew Estabrooks British Columbia Civil Liberties Association Ottawa Agent for the Intervener, British Columbia Civil Liberties Association

DERSTINE, PENMAN CRIMINAL GOWLING LAFLEUR HENDERSON LLP LAWYERS Barristers and Solicitors 302 – 559 College Street 2600 - 160 Elgin Street Toronto, ON M6G 1A9 Ottawa, ON K1P 1C3 Tel: 416-304-1414 Tel: (613) 786-0171 Fax: 416-304-1345 Fax: (613) 788-3587 Email: [email protected] Email: [email protected] Dirk Derstine Jeffrey W. Beedell Counsel for the Intervener, Criminal Lawyers' Ottawa Agent for the Intervener, Criminal Association (Ontario) Lawyers' Association (Ontario)

LA LIBERTÉ CRONIN & COMPANY POWER LAW 1109 – 605 Robson St. 1103 – 130 Albert Street Vancouver, BC V6B 5J3 Ottawa, ON K1P 5G4 Tel: 604-669-8602 Tel : 613-702-5561 Fax: 604-669-8939 Fax : 613-702-5561 Email: [email protected] Email: [email protected] Kasandra Cronin Justin Dubois Counsel for the Intervener, Ottawa agent for the Intervener, West Coast Women's Legal Education and West Coast Women's Legal Education and Action Fund Action Fund

(i)

TABLE OF CONTENTS

PART I – OVERVIEW ...... 1

PART II – STATEMENT OF POSITION ...... 1

PART III – STATEMENT OF ARGUMENT ...... 2

A. An Exemption Clause May Be Necessary for a Statute to Meet Minimum Constitutional Standards ...... 2

B. Assessing Exemption Clause...... 7

C. Section 10(5) is Not an Adequate Exemption Clause ...... 8

PART IV AND V – COSTS SUBMISSION AND ORDER SOUGHT ...... 10

PART VI – TABLE OF AUTHORITIES ...... 11

1

PART I - OVERVIEW

1. In R. v. Nur, this Court recognized that mandatory minimum sentences, by their very nature, undermine the principle of proportionality by emphasizing denunciation, deterrence and retribution at the expense of a fit sentence.1 Mandatory minimum sentences are a “blunt instrument” that deprives courts of the ability to craft appropriate and tailored sentences.2 In some cases, mandatory minimum sentences result in clearly unjust and grossly disproportionate sentences, contrary to s. 12 of the Charter.

2. Over the last decade, Canada has seen an exponential increase in the number of mandatory minimum sentences, many for offences with very broad elements. As a result, there will inevitably be exceptional cases in which the mandatory minimum sentences are grossly disproportionate. Most mandatory minimum sentences are therefore vulnerable to constitutional challenges. The current s. 12 jurisprudence results in a piecemeal approach to these challenges, leading to wasted resources and significant uncertainty in the law. The Canadian Bar Association (“the CBA”) submits that it is time for the Court to explicitly recognize that mandatory minimum sentences for broadly defined offences are likely to violate s. 12 of the Charter in the absence of judicial discretion to not apply the minimum sentence.

PART II – STATEMENT OF POSITION

3. The CBA submits:

a. Section 12 of the Charter requires valid alternatives to minimum sentences for broadly worded offences. An adequate exemption clause is therefore sometimes required for a mandatory minimum sentence to meet constitutional standards.3

b. Exemption clauses that are too narrow, that are based on arbitrary or irrelevant factors, or that are subject to prosecutorial discretion, are not valid alternatives to minimum sentences.

c. The exemption clause in s. 10(5) of the Controlled Drugs and Substances Act (CDSA) 4 is not a valid alternative to the minimum sentence in s. 5(3)(a)(i)(D) of the CDSA.

1 R. v. Nur, 2015 SCC 15 at para. 44. 2 Nur, at para. 44. 3 The CBA’s governing Council has passed a resolution to advocate for an exemption provision in s. 718 of the Criminal Code and to affirm the importance of judicial discretion in sentencing (Resolution 11-09-A). 4 Controlled Drugs and Substances Act, S.C. 1996, c. 19. 2

PART III – STATEMENT OF ARGUMENT

A. An Exemption Clause May Be Necessary for a Statute to Meet Minimum Constitutional Standards

4. After this Court’s decision in Nur, four factors have created a “perfect storm” for further challenges to mandatory minimum sentences under s. 12 of the Charter.

5. First, the Court in Nur confirmed a robust reasonable hypothetical analysis under s. 12 of the Charter. The Court held that the reasonable foreseeability test is not confined to situations that are “likely” to arise. Only situations that are “remote” or “far-fetched” are excluded.5 Moreover, previous rulings under s. 12 of the Charter may be revisited if there are significant changes in the reasonably foreseeable applications of the law.6 The Court also clarified that the reasonable hypothetical analysis may take into account personal characteristics relevant to people who may be caught by the mandatory minimum.7 This clearly includes Aboriginal heritage and mental illness, as people with these characteristics are over-represented in the criminal justice system and therefore more likely to be caught by the mandatory minimum sentence. Aboriginal offenders or offenders with mental illness are clearly not “remote or far-fetched examples.”8

6. Second, over the past decade, Parliament has significantly increased the number of mandatory minimum sentences.9 Canada is second only to the United States in the number of offences attracting a mandatory minimum sentence.10 Moreover, mandatory minimum sentences are no longer limited to extremely serious and specific offences, such as murder or criminal negligence causing death with a firearm.11 Now, many offences that capture a wide range of conduct carry a mandatory minimum sentence. For example, the CDSA prescribes mandatory minimum sentences for trafficking in a controlled substance if the person “committed the offence

5 Nur, at para. 68. 6 Nur, at para. 71. 7 Nur, at paras. 73-76. 8 Nur, at para. 76. 9 In 1982, there were only six mandatory minimum sentences in the Criminal Code. By 2006, the Criminal Code contained 40 mandatory minimum sentences. Now, there are close to 80 mandatory minimum sentences in the Criminal Code, plus another 26 under the CDSA. See: David M. Paciocco, “The Law of Minimum Sentences: Judicial Responses and Responsibility” (2015) 19 Can. Crim. L. Rev. 173 at 176-177, see CBA Book of Authorities (“BOA”). [BOA TAB 10] 10 Uniform Law Conference of Canada Criminal Section Statutory Exemptions to Mandatory Minimum Penalties: Final Report, August 2013, at para. 5. [BOA TAB 12] 11 R. v. Morrissey, 2000 SCC 39. 3 in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years” or if the person “used the services of a person under the age of 18 years, or involved such a person, in committing the offence”.12 Producing marijuana carries mandatory minimum sentences of nine months to three years, depending on the number of plants produced and the aggravating factors in the case.13 The Criminal Code also establishes mandatory minimum sentences for broad offences, such as serious fraud,14 sexual exploitation,15 child pornography,16 and sexual assault of a person under the age of 16 years.17 While these are serious offences, they capture an extremely broad range of conduct and circumstances. For example, sexual assault includes any touching of a sexual nature, from a simple pat to intercourse.

7. Third, in R. v. Ferguson, this Court rejected the use of constitutional exemptions to deal with cases in which a mandatory minimum sentence would be grossly disproportionate. Instead, if a mandatory minimum sentence has unconstitutional effects, it must be struck down in its entirety.18

8. Finally, the majority of the Court in Nur held that a mandatory minimum sentence that imposes grossly disproportionate sentences in some cases cannot be saved by prosecutorial discretion to proceed by another route. The Court foreclosed the possibility that Crown discretion to avoid a minimum sentence can be a valid alternative to a mandatory minimum sentence.

9. In these circumstances, challenges to mandatory minimum sentences will “continue indefinitely”, creating significant uncertainty in the law.19 Given that most substantive offences are designed to capture a wide range of conduct, a grossly disproportionate fact scenario will almost always fall within the scope of the provision.20 As constitutional exemptions are no longer permitted and a Crown election to proceed summarily does not affect the analysis, the mandatory

12 CDSA, ss. 5(3)(ii)(A) and (C). 13 CDSA, s. 7(1)(b). 14 Criminal Code, R.S.C., 1985, c. C-46, s. 380(1.1). 15 Criminal Code, s. 153(1.1). 16 Criminal Code, ss. 163.1(2) – 163.1(4.1). 17 Criminal Code, s. 271. 18 R. v. Ferguson, 2008 SCC 6. 19 Peter Sankoff, “The Perfect Storm: Section 12, Mandatory Minimum Sentences and the Problem of the Unusual Case” Constitutional Forum (2013), Vol. 22, No. 1. at 6-7. [BOA TAB 11] 20 Sankoff, at 6-7 [BOA TAB 11]; Paciocco at 194. [BOA TAB 10] 4 minimum must be struck down entirely. It is therefore “virtually impossible to ever pronounce that a sentencing provision’s fate is secure” and “Parliament is left with no guidance about how sound its legislation actually is.”21

10. Nur itself provides a compelling example. The majority of the Court struck down the mandatory minimum sentences for the serious offence of possessing a loaded firearm. The Court held that the offence was broad enough to capture licensing infractions – conduct for which the minimum sentences would be grossly disproportionate.

11. The CBA submits that there is a practical and principled solution to this quagmire: the legislative exemption clause. Statutory exemption clauses are used in several other jurisdictions.22 They permit a minimum sentence to be applied in the majority of cases, while leaving judicial discretion to not impose the minimum sentence in exceptional circumstances. This provides an appropriate balance between increasing the severity of sentences for particular offences and ensuring that judicial discretion remains to impose a lower sentence where the minimum would be clearly unjust.

12. The CBA submits that this Court should recognize the fundamental problem that occurs when an offence with broad elements is subjected to a mandatory minimum sentence. Given this Court’s robust reasonable hypothetical analysis and the rejection of constitutional exemptions and prosecutorial discretion to deal with extreme cases, such mandatory minimum sentences are extremely vulnerable to challenges under s. 12 of the Charter. The CBA submits that this Court should find that mandatory minimum sentences for broad offences are likely to violate s. 12 of the Charter unless there is a judicial outlet to deal with factual outliers. In particular, the CBA submits that the Court should send a strong message to Parliament that an exemption clause is required for a minimum sentence to meet constitutional standards. This would provide certainty in the law and give courts and Parliament guidance in further constitutional challenges and in redrafting laws.

13. This development in the law flows logically from the s. 12 analysis confirmed in Nur. One of the criteria used to assess whether a mandatory minimum sentence violates s. 12 of the

21 Sankoff, at 10. [BOA TAB 11] 22 Yvon Dandurand, Exemptions from Mandatory Minimums, Report prepared for the Uniform Law Conference of Canada Working Group on Exemptions from Mandatory Minimum Penalties, August 2012. [BOA TAB 9] 5

Charter is whether “valid alternatives to the punishment imposed” exist.23 A statutory exemption clause is a valid alternative to a mandatory minimum sentence, and is therefore relevant to the s. 12 analysis. Additionally, the minimal impairment analysis under s. 1 of the Charter asks whether the limit on the Charter right is reasonably tailored to its objective. The government must show that there is no other way to meaningfully achieve its objective.24 A statutory exemption clause would permit Parliament to achieve the objective of increasing the severity of certain offences while ensuring that the minimum sentence is not applied where it would be unjust. It is clearly a less drastic means of achieving Parliament’s objective, and is therefore also relevant to the s. 1 analysis.

14. Indeed, the existence of a “safety valve” in Nur was an important part of the s. 12 analysis. In his dissenting reasons in Nur, Moldaver J. held that the hybrid nature of the offence rendered the minimum sentence in that case constitutional. The Crown could elect to proceed by summary conviction where the mandatory minimum sentence would be grossly disproportionate. This ensured that the mandatory minimum sentence did not apply in the least serious instances of the offence.25 The majority of the Court appeared to accept that the existence of an exemption was critical to the analysis, but disagreed that an exemption based on prosecutorial discretion provided sufficient protection against unconstitutional results.26

15. Finally, requiring an exemption clause is not a new concept. In many cases, this Court has found that the presence of an adequate exemption clause is necessary for a statute to meet constitutional standards. For example, in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), this Court held that British Columbia’s court hearing fee regime violated s. 96 of the Constitution Act, 1867, because it was not coupled with an adequate exemption for people who could not afford the fees.27 In Canada (Attorney General) v. PHS Community Services Society, the Court held that the prohibition on the possession of controlled substances in s. 4(1) of the CDSA was constitutional because the exemption in s. 56 of the CDSA acted as a “safety valve”. It prevented unconstitutional results, such as the application of s. 4(1) to

23 R. v. Latimer, 2001 SCC 1 at para. 75; Morrissey, at paras. 27-28; R. v. Goltz, [1991] 3 S.C.R. 485 at 500. 24 Nur, at para. 116. 25 Nur, at para. 122. 26 Nur, at paras. 92-97. 27 Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 at paras. 44- 48. [BOA TAB 8] 6 the staff and clients of Vancouver’s safe injection site. Without this exemption, s. 4(1) would be unconstitutional.28 In the recent case of R. v. Smith, the Court held that the prohibition on the possession, production, and distribution of cannabis in the CDSA, combined with the narrow exemption for medical marijuana in a dried form, was unconstitutional because the exemption did not include other forms of medical marijuana.29 In other words, the exemption was “too narrow, or under-inclusive” .30

16. The Court has also held that judicial discretion is sometimes required to render a statute constitutional. For example, in R. v. Demers, the Court held that ss. 672.33, 672.54 and 672.81(1) of the Criminal Code were unconstitutional because they did not provide any judicial discretion to absolutely discharge a permanently unfit accused for whom a trial was not a possibility.31 Similarly, in R. v. Baron, the Court held that s. 231.3(3) of the Income Tax Act was unconstitutional because it denied judicial discretion to refuse to issue a warrant where a search or seizure would be unreasonable.32

17. To be clear, the CBA is not suggesting that Parliament cannot fetter judicial discretion in sentencing by enacting minimum sentences. The CBA’s position is that s. 12 of the Charter requires that minimum sentences be presumptive, rather than mandatory, or tailored to very specific offences, such as murder. But, mandatory minimum sentences for broadly defined offences are likely to violate s. 12 of the Charter in the absence of an exemption clause.

B. Assessing Exemption Clauses

18. Parliament has broad discretion as to the content of an exemption clause. Exemption clauses in other jurisdictions have varying thresholds, such as “exceptional circumstances”, “substantial and compelling circumstances”, and “manifestly unjust”.33 However, the CBA submits that an exemption clause must meet certain requirements to impact the constitutionality of a minimum sentence.

19. First, an exemption clause must provide sufficient judicial discretion to not impose a

28 Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 at paras. 84-115. [BOA TAB 2] 29 R. v. Smith, 2015 SCC 34. [BOA TAB 7] 30 Smith, at para. 31. [BOA TAB 7] 31 R. v. Demers, 2004 SCC 46. [BOA TAB 4] 32 Baron v. Canada, [1993] 1 S.C.R. 416. [BOA TAB 1] 33 Dandurand Report. [BOA TAB 9] 7 minimum sentence in circumstances where it would create an unjust result. If the exemption clause is too narrow, the minimum sentence may offend s. 12 of the Charter.

20. Second, an exemption clause must be based solely on factors relevant to the sentencing process. If the exemption clause is based on factors that are arbitrary or irrelevant to sentencing, the minimum sentence may still capture circumstances where it is grossly disproportionate. Further, proportionality in sentencing is a principle of fundamental justice under s. 7 of the Charter. Parliament is prevented from making sentencing contingent on factors unrelated to the determination of a fit sentence.34 The combination of a minimum sentence and an exemption clause based on factors unrelated to sentencing may then violate s. 7 of the Charter.

21. Finally, the application of an exemption clause cannot be based on Crown discretion. In Nur, the majority of the Court made it clear that Crown discretion to avoid a mandatory minimum sentence cannot “insulate otherwise unconstitutional laws”.35 To hold otherwise would “result in replacing a public hearing on the constitutionality of [the mandatory minimum] before an independent and impartial court with the discretionary decision of a Crown prosecutor, who is in an adversarial role to the accused” and “would create a situation where the exercise of the prosecutor’s discretion is effectively immune from meaningful review”.36

C. Section 10(5) is Not an Adequate Exemption Clause

22. Section 5(3)(a)(i)(D) of the CDSA requires sentencing judges to impose a minimum sentence of one year incarceration where a person is convicted of a trafficking offence involving a Schedule I substance if that person has been convicted of a “designated substance offence” in the preceding 10 years. Contrary to the Respondent’s submissions, the CBA submits that this mandatory minimum sentence casts a wide net and captures circumstances where the minimum sentence would be grossly disproportionate.

23. First, the definition of “traffic” is extremely broad. Section 2 of the CDSA defines “traffic” as “to sell, administer, give, transfer, transport, send or deliver the substance”.

34 R. v. Safarzadeh-Markhali, 2014 ONCA 627 at paras. 73-86. [BOA TAB 6] See also ULCC Report at para. 19. [BOA Tab 12] 35 Nur, at para. 91. 36 Nur, at paras. 86-94. 8

Trafficking offences therefore encompass more than simply selling controlled substances for consideration or profit. They include carrying or moving a drug from one place to another with the purpose of promoting its distribution,37 handing the substance over to another’s possession, or dealing out portions or shares of the substance among a number of recipients.38 Trafficking also includes applying a drug to another person, with or without that person’s consent. It therefore includes injecting a drug into the body of another person.39 It even includes the simple act of giving the substance to another person, regardless of the reason for doing so.40 Thus, simply sharing some drugs with a friend would constitute the offence of trafficking.

24. Second, the offence in this case is made out when the accused traffics any amount of a Schedule I substance. It therefore captures the selling, transporting, administering, or giving of very small amounts of Schedule I substances.

25. Finally, while the minimum sentence only applies where the Crown establishes the aggravating factor of a previous conviction for a “designated substance offence”, the definition of “designated substance offence” captures a wide range of conduct. Section 2 of the CDSA defines “designated substance offence” to mean any of the offences in sections 4 to 10 of the CDSA, except the offence of simple possession. This includes seeking or obtaining drugs from a practitioner, trafficking, possession for the purpose of trafficking, importing and exporting, and production.

26. Thus, the minimum sentence in s. 5(3)(a)(i)(D) of the CDSA applies to a wide range of potential conduct. While most conduct within this range will merit a sentence of one year or more, conduct at the far end of the range may not. For example, as the trial judge found, the minimum sentence would apply to a drug addict who gives a small amount of a Schedule I substance to a spouse or friend. It would also apply to a drug addict who assists another addict inject a Schedule I substance. These scenarios are common in Vancouver’s Downtown Eastside and, as recognized by the trial judge, many people there have prior convictions for designated offences. The minimum sentence would also apply to a recreational drug user with a prior related record who simply gives a small amount of a Schedule I substance to a friend. Given the minimal

37 R. v. Harrington, [1964] 1 C.C.C. 189 (B.C.C.A.). 38 R. v. Taylor (1974), 17 C.C.C. (2d) 36 (B.C.C.A.). 39 R. v. Creighton, [1993] 3 S.C.R. 346. [BOA TAB 3] 40 R. v. Lauze (1980), 60 C.C.C. (2d) 469 (Que. C.A.). [BOA TAB 5] 9 blameworthiness of these types of offenders and the diminished risk of harm, a sentence of one year incarceration would be grossly disproportionate.

27. This case illustrates the fundamental problem with the current s. 12 jurisprudence. Without adequate judicial discretion to depart from the minimum sentence, mandatory minimum sentences for broad offences will inevitably result in violations of s. 12 of the Charter.

28. The CBA further submits that the narrow exemption clause in s. 10(5) of the CDSA does not render the mandatory minimum sentence constitutional. Section 10(5) provides that the court is “not required” to impose the minimum punishment if the offender successfully completes an approved drug treatment program. While this gives some judicial discretion to depart from the minimum sentence, the exemption does not capture all circumstances in which the minimum sentence would be grossly disproportionate. At the time of the Appellant’s sentencing, there was only one approved drug treatment program in Vancouver and, as noted by the trial judge, it is not available to recreational drug users. Furthermore, participation in the treatment program is dependent on the applicant pleading guilty and many applicants are not eligible for the program because of their background. For example, applicants are not eligible to participate in the program if they require an interpreter.41 Thus, the exemption clause does not catch all offenders who simply share a small amount of a Schedule I drug with a friend.

29. Further, the application of the exemption clause in s. 10(5) of the CDSA is based on factors that are irrelevant to sentencing, such as the availability of an approved drug treatment program, an offender’s exercise of his right to a trial, and the accused’s need for an interpreter. These factors are outside the control of the accused and are unrelated to the circumstances of the offence or the offender. As noted above, s. 7 of the Charter prevents Parliament from making sentencing contingent on factors unrelated to the determination of a fit sentence.42 The CBA therefore submits that the combined effect of the minimum sentence and the exemption clause in this case violates s. 7 of the Charter.

41 Reasons of the Trial Judge, at para. 55; Respondent’s Record, at 68-69. 42 Safarzadeh-Markhali, at para. 85. [BOA TAB 6] 10

30. Finally, the exemption in s. 10(5) of the CDSA is based on Cwwn discretion, as the Crown can disqualify an applicant from Vancouver's Drug Treatment Court.43 As the majority of this Court found in Nur, exemptions from minimum sentences based on Crown discretion only provide "illusory" protection against grossly disproportionate punishment.44

PART IV AND V - COSTS SUBMiSSION AND ORDER SOUGHT

31. The CBA seeks no costs and respectfully requests that none be awarded against it. The CBA requests that it be allowed 10 minutes to provide oral submissions.

ALL OF WHICH IS RESPECTFULLY SUBMITTED. ;-~;:~~~>O~~~ -"---".-----~---- as "'1eKl ~o , Mila Shah PECK AND COMPANY

43 Reasons ofthe Trial judge, at para. 55. 44 Nur, at para. 94. 11

PART VI – TABLE OF AUTHORITIES

CBA Authorities Tab Cases Para.

1 Baron v. Canada, [1993] 1 S.C.R. 416 ...... 16 ......

2 Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 ...... 15

3 R. v. Creighton, [1993] 3 S.C.R. 3 ...... 23......

4 R. v. Demers, 2004 SCC 46 ...... 16 .

R. v. Ferguson, 2008 SCC 6 ...... 7

R. v. Goltz, [1991] 3 S.C.R. 485 ...... 13

R. v. Harrington, [1964] 1 C.C.C. 189 (B.C.C.A.) ...... 23

R. v. Latimer, 2001 SCC 1 ...... 13 ...

5 R. v. Lauze (1980), 60 C.C.C. (2d) 469 (Que. C.A.) ...... 23

R. v. Morrissey, 2000 SCC 39 ...... 6, 13

R. v. Nur, 2015 SCC 15 ...... 1, 4,...... 5, 8, 10, 13, 14, 21, 30

6 R. v. Safarzadeh-Markhali, 2014 ONCA 627 ...... 20, 29 ......

7 R. v. Smith, 2015 SCC 34 ...... 15 .....

R. v. Taylor (1974), 17 C.C.C. (2d) 36 (B.C.C.A.) ...... 23

8 Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 ...... 15......

Secondary Sources Para.

9 Dandurand, Yvon. Exemptions from Mandatory Minimums, a report prepared for the Uniform Law Conference of Canada Working Group on Exemptions from Mandatory Minimum Penalties, August 2012 ...... 11, 18 ... 12

10 Paciocco, David M. “The Law of Minimum Sentences: Judicial Responses and Responsibility” (2015) 19 Can. Crim. L. Rev. 173 ...... 6, 9 .....

11 Sankoff, Peter, “The Perfect Storm: Section 12, Mandatory Minimum Sentences and the Problem of the Unusual Case” Constitutional Forum (2013), Vol. 22, No. 1 ...... 9 ......

12 Uniform Law Conference of Canada Criminal Section Statutory Exemptions to Mandatory Minimum Penalties: Final Report, August 2013 ...... 6, 20

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