In a ground-breaking judgment, the Supreme Court of Canada has ruled that mandatory minimum sentencing for certain drug offences violates the Charter of Rights and Freedoms

Viewing sentencing through the lens of equality

Fairness and equality in sentencing is a women’s issue because “one-size-fits-all” sentencing
ignores the different and disproportionately negative ways in which women are impacted by jail sentences

This case challenged a section of the Controlled Drugs and Substances Act, which creates a mandatory minimum one year jail term for drug possession in certain situations. West Coast LEAF  (Women’s Legal Education and Action Fund), a non-profit organization “working to make Canada an equal place for all women,” intervened in this case to argue that Charter challenges to mandatory minimum sentencing must be viewed through the lens of equality.

By removing a judge’s ability to consider the whole of the circumstances, mandatory minimums result in sentences that do not fit the crime. Fairness and equality in sentencing is a women’s issue because “one-size-fits-all” sentencing ignores the different and disproportionately negative ways in which women are impacted by jail sentences.

“We are pleased to see the Court struck down this mandatory minimum sentence, as it cast a net over a wide range of conduct and applied indiscriminately to offenders whose circumstances may reflect makers of historical disadvantage,” said Raji Mangat, Director of Litigation for West Coast LEAF. “Our focus in this case was on women, who are differently and more greatly impacted by jail terms because of their role as primary caregivers, the potential for loss of child custody, and the likelihood that women will be jailed far from their home communities.”

Cruel and unusual punishment

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 to interactions with law enforcement

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 to interactions with law enforcement.

“The Court affirmed that judges must have room to consider the actual circumstances of the offender.” Ms. Mangat stated. “This allows courts to be responsive to historical disadvantages experienced by offenders from marginalized groups in society, particularly those for whom disadvantage is compounded by the intersection of vulnerabilities.”

West Coast LEAF

Raji Mangat is director of litigation at West Coast LEAF

West Coast LEAF has worked for the last several years to ensure that the human rights of incarcerated women are protected. The organization’s work in this case builds on efforts to advance the rights of incarcerated mothers and respond to the inadequate provincial jail facilities for women in BC. West Coast LEAF says it “will continue to work on protecting women’s human rights as they affect women’s interactions with the criminal justice system.”

Read more about the case, including West Coast LEAF’s argument, here: Read the case summary here.

We speak with Raji Mangat, director of litigation at West Coast LEAF.

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— People First Radio (@peoplefirstrad) April 22, 2016