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Tom Rees | Criminal Defence Lawyer Winnipeg

BC Court Finds Mandatory Minimum Sentence for Drug Trafficking Unconstitutional

The Controlled Drugs and Substances Act (CDSA) is the primary legislation used by the Federal Government to prosecute drug crimes. The CDSA contains definitions for the offences of possession of drugs or trafficking drugs, as well as a list of controlled substances and drugs.

Section 5(3)(a)(ii)(A) of the CDSA reads:

  •  (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

    • (3) Every person who contravenes subsection (1) or (2)
      • (ii) to a minimum punishment of imprisonment for a term of two years if

        • (A) the person committed the offence 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,


Click here to see the section of the CDSA online.


In this BC case, the accused was charged after selling cocaine to an undercover officer. The transaction took place on the sidewalk adjacent to a property that used to be a school a number of years ago. The police witnesses at trial agreed that they didn’t have any evidence that the property was being used by people under 18 years old at the time of the arrest.

The Court reviewed some history of minimum sentences and the CDSA:

[31]        The mandatory minimum sentence of two years’ imprisonment set out in s. 5(3)(a)(ii)(A) of the CDSA was introduced in November 2012 in the Safe Streets and Communities Act, S.C. 2012, c.1 [SSCA]. Parliament made significant changes to the sentencing provisions in both the Criminal Code of Canada, R.S.C. 1985, c. C-46 [Code] and the CDSA. Conditional sentences are now no longer available for a number of sentences, including sentences punishable by a minimum term of imprisonment and all indictable drug importing, exporting, production or trafficking offences punishable by a maximum term of imprisonment of ten years or more.

The court interpreted the meaning of section 5(3)(a)(ii)(A), in particular the meaning of “public place usually frequented by persons under the age of 18 years”.

[56]        The language used in s. 5(3)(a)(ii)(A) conveys a meaning that there will be a likely presence of young people; that young people will be commonly present and about or “hanging out” at the public place; that their presence as a group is not transitory or fleeting, but a usual presence. Common sense dictates that the phrase must be defined in a limited way or the consequence would be that every street, every public building including grocery stores and shopping malls, every field, park and transportation line would be captured by this aggravating element, since children and youth can be found around every corner in our communities. If a limited definition is not employed, then the phrase “applies to the majority of the places within a city setting, except those locations where youth are expressly excluded”: Trasolini at para. 41. With respect, this would not be in harmony with the intention of Parliament indicated by the Minister of Justice’s words quoted above or with common sense.

The court concluded:

[59]        In this case, I have found that the school grounds and the Gym, not the school building itself, were public places at the time of the offences. The evidence established that the school grounds were adjacent to the old school and the building, except for the Gym was clearly unused, as evidenced by boarded up windows. No persons were seen in the vicinity. The only sign of activity was four vehicles parked in the parking lot. While there were signs on the side of the Gym, there was nothing about the building to draw anyone’s attention to young persons usually attending the premises. Those unfamiliar with the area would not know the Gym was a place where children and youth attended gymnastics classes. There was nothing to distinguish the Gym as being a facility used by or, indeed, as a facility usually frequented by young persons. It was an integral part of a disused school building. Further, there was no evidence that the school grounds themselves were regularly used by children or young adults or that any area in or about the school was a place where young people were commonly known to congregate.

The court then undertook the analysis to determine the constitutionality of the section:

[66]        As discussed in R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045 at 1072, which was applied in Holt at para. 65, to constitute a breach of s. 12, a sentence must be “so unfit having regard to the offence and the offender as to be grossly disproportionate”. A grossly disproportionate sentence is one that is “so excessive as to outrage standards of decency” to the extent Canadians “would find the punishment abhorrent or intolerable”: R. v. Ferguson,2008 SCC 6 (CanLII) at para. 14 [Ferguson SCC].

[67]        The courts must give a high level of deference to valid objectives underlying punishment set by Parliament. As noted in R. v. Nasogaluak, 2010 SCC 6 (CanLII) at para. 45: “the minimum sentence is a forceful expression of government policy in the area of criminal law.”

After a lengthy review of case law provided by the Crown and the Defence, the court made some comments about the appropriate sentence ranges. According to the Court, the Crown’s cases pointed to a sentence of 12-18 months of custody, while the defence argued that 6-12 months of custody was appropriate, with this accused being at the low end of that range.

[94]        I have reviewed the cases referred to by counsel in support of their respective positions as to the appropriate range of sentence in this case. While the general sentencing principles applicable to the offences Mr. Dickey committed are clear, each of the authorities referred to is necessarily dependant on the particular circumstances of the offence and the unique circumstances of the offender. The circumstances of the offences and background of each offender vary greatly. Sentencing is very much an individualized process.

The Judge concluded that the appropriate sentence would have been one of 6 months of custody. The result was that the minimum sentence of 2 years of custody would have been grossly disproportionate, having regard to the circumstances of the offender and the circumstances of the offence.

[147]     In conclusion, for the reasons above, I have concluded the Crown has not proven beyond a reasonable doubt that the place of the offence was a public place “usually frequented” by young persons and that, if I am wrong in so concluding, Mr. Dickey has established the mandatory minimum sentence required by s. 5(3)(a)(ii)(A) offends s. 12 of the Charter.

Either way, no minimum sentence was being imposed by the court on this occasion.

This case is also a good example of the variation between sentences for drug crimes across Canada. The sentence a person might receive in British Columbia will most certainly be shorter than a sentence imposed in Manitoba for the same offence. As the different provinces take different ideological positions, the implementation and management of their criminal justice systems follow. The test will be the number of non-violent people in custody in the different provinces and the related costs of those province’s ideological choices.

Click here to read about civil forfeiture and the CDSA