02/19/2014 16:11 EST | Updated 04/21/2014 05:59 EDT

Minimum sentence for drug trafficking struck down by B.C. judge

B.C. provincial court Judge Joseph Galati has struck down today one of the key pieces of Prime Minister Stephen Harper's tough-on-crime agenda, the one-year mandatory minimum sentence for drug traffickers previously convicted of the crime within the last 10 years.

It's the second major setback for Harper's get-tough agenda. In November, the Ontario Court of Appeal struck down three-year mandatory minimum sentences for possession of a loaded prohibited gun, declaring the law, part of the federal Conservatives' 2008 omnibus bill, unconstitutional.

This latest case involves small-time Vancouver Downtown Eastside drug dealer Joseph Ryan Lloyd, whom the judge had earlier convicted of three counts of trafficking two grams of crack cocaine, six grams of methamphetamine and a half gram of heroin. 

Under the new law, Galati had to sentence Lloyd to a minimum one year in jail. Instead, taking into account time served, he sentenced Lloyd to 191 days.

Court documents show Lloyd, who is 25 years old with a Grade 10 education, had 21 prior convictions that included fraud, forgery, theft, assault, possession of a prohibited weapon and a prior drug conviction.

Last March, Vancouver police stopped Lloyd for riding his bicycle on the sidewalk. When they searched him, police found a knife in a sheath and arrested him for breaching the conditions of his probation. That's when they also found the drugs.

Galati says the charge and Lloyd's record could support a sentence of 12 to 18 months, well within the range of the federal mandatory minimum sentence. But the judge was troubled by the lack of discretion in applying the sentencing law to low-level drug dealers such as Lloyd, who sell drugs to feed their own addiction.

Drug law casts too wide a net

Where addiction is involved, Galati says in his ruling, the mandatory one-year minimum drug sentence "may not necessarily lead to the legislative objective of combating drug trafficking."

Galati says the drug law casts a wide net.

"The circumstances related to convictions for designated substance offences run the gamut from very serious cases to more trivial ones and offenders range from career criminals .... to small offenders," Galati writes in his ruling.

"Many offenders are of aboriginal heritage and their respective personal circumstances would otherwise warrant particular attention," says Galati, referring to Criminal Code provisions requiring the court to consider sanctions other than jail for aboriginal offenders.

In a previous ruling Galati found the one-year mandatory minimum sentence for drug traffickers amounted to cruel and unusual punishment. After hearing Crown arguments on Tuesday, he found that such punishment was not a reasonable limit under Section 1 of the Canadian Charter of Rights and Freedoms and has now struck it down.

Lloyd's lawyer David Fai says it's a good decision on a bad law.

"In this neighbourhood where we are, there's a lot of people here with prior convictions in the last 10 years that are addicts that are sharing with their friends or selling small amounts to support their addiction," said Fai. "They'd all be sent to jail for a minimum of one year under this legislation, so instead of harm reduction we're going to sweep them all into jail."

The Crown says it will appeal Galati's ruling.

Read Judge Galati's conclusion in R vs. Lloyd