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A Procedural Look at Challenging Mandatory Minimum Punishments

Zach Myers









The following is a procedural look at Challenging a Mandatory Minimum punishment – reasonable hypothetical information is inputted for Illustrative purposes.

With the coming in to force of the Safe Streets and Communities Act on November 6, 2012, parliament has greatly expanded the number of offences carrying mandatory minimum prison sentences. One of those offences includes traffic in a controlled substance “in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under 18”. Should a court find this enumerated aggravating factor is proven beyond a reasonable doubt, The accused is subject to a 2 year mandatory Minimum Jail Sentence under 5(3)(a)(i) of the CDSA.[1]

Issue 1:

Can the Crown Prove Beyond a Reasonable Doubt for the purposes of alleging the aggravating factor at sentencing that the accused was trafficking, “near a school, on or near school grounds or in or near any other public place frequented by youth under 18”?

As a requisite, it must be proven beyond a reasonable doubt that area is “usually frequented by persons under 18 years of age” if it is not a school.

Issue 2:

The procedure, steps and case law that is relevant to a section 7, 12, and eventually section 1 argument related to a constitutional challenge.

Executive Summary

The strongest factors in a case may arise from the over breadth of the section in relation to its objective, and that the accused would be subject to cruel and unusual punishment if a mandatory minimum sentence of 2 years was applied in light of the accused’s personal circumstances (no criminal record, caught with a small quantity of drugs and no other drugs found on his person or at his residence, possible use of cocaine himself, and strong prospects for rehabilitation).

We have included citations for several cases of trafficking where the gravity of the offence is more serious or the accused’s personal circumstances are more aggravating, and the accused was sentenced to a suspended sentence or short custodial sentence.

A further factor that may be called into question is whether the individual’s mobility is a factor for interpreting the activity, i.e. his degree of permanence.

Regardless, there is a strong case based on our fact pattern not to mention possible reasonable hypotheticals for a judge to find charter infringements and to then proceed to a Section 1 analysis. Based on the previous case law herein, there would not be a strong crown argument for justification under section 1 of the Charter.

See the analysis section below for full details on arguments to be made with regard to s.7 (overbreadth and vagueness) and s.12 of the Charter.

Issue 1

It may defer from the ultimate issue which is “issue 2” but you must not forget the crown does have the burden of proving beyond a reasonable doubt that The accused was trafficking, “near a school, on or near school grounds or in or near any other public place frequented by persons under the age of 18 years”. I would question the words “usually frequented” and their precise meaning. The inclusion of the word “school” may set a minimum threshold for the definition of “usually frequenting”.

Before enter a guilty plea and challenging the section ask whether you have a tri-able issue subject to the aggravating factor.

Procedure, Case Law, and Arguments related to Issue 2

The applicant bears the onus of establishing Charter violations on a balance of probabilities. Once the Charter violation is proven by the claimant, it then becomes the state’s burden to establish on that same balance of probabilities that the infringement can be ‘demonstrably justified’ under section 1.

a) Section 12

Section 12 of the Charter provides that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”. Whether a punishment is considered in law to be cruel and unusual has come to be understood as meaning the punishment must not be so excessive as to outrage the standards of decency, or must not be grossly disproportionate to what an offender otherwise deserves.[2]

Specific & Generalized Inquiry

The first avenue of inquiry is focused on the particular circumstances of the offender and the offence, it involves a “particularized inquiry” with a view to determining what a fit sentence would be absent a mandatory minimum.

The second line of inquiry is of a more general nature, inquiring into the impact of the sentence in other reasonable hypothetical situations. In R. v Goltz[3] Mr. Justice Gonthier explains these steps in the following terms:

There are two aspects to the analysis of invalidity under s. 12. One aspect involves the assessment of the challenged penalty or sanction from the perspective of the person actually subjected to it, balancing the gravity of the offence in itself with the particular circumstances of the offence and the personal characteristics of the offender. If it is concluded that the challenged provision provides for and would actually impose on the offender a sanction so excessive or grossly disproportionate as to outrage decency in those real and particular circumstances, then it will amount to a prima facie violation of s. 12 and will be examined for justifiability under s. 1 of the Charter. There may be no need to examine hypothetical situations or imaginary offenders. This was not the case in Smith, and for that reason the Court was obliged to examine other reasonably imaginable circumstances in which the challenged law might violate s. 12.

If the particular facts of the case do not warrant a finding of gross disproportionality, there may remain another aspect to be examined, namely a Charter challenge or constitutional question as to the validity of a statutory provision on grounds of gross disproportionality as evidenced in reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases…

The section 12 analysis must now be undertaken as to both aspects. In the “particularized” section of analysis, the considerations of gravity of the offence, the particular circumstances of the case, the personal characteristics of the offender, and the effects of the sentence must be examined in light of the facts of the instant appeal[4].

In R. v. Smith, Mr. Justice Lamer identifies a series of four factors to be considered in the determination of whether a sentence is grossly disproportionate. Those factors are:

(1) the gravity of the offence

(2) the personal characteristics of the offender

(3) the particular circumstances of the case

(4) the actual effect of the punishment on the offender.

Mr. Justice Lamer lists a number of additional factors which he describes as useful in determining whether a section 12 violation has occurred. They are:

  • whether the punishment is necessary to achieve a valid penal purpose
  • whether it is founded on recognized sentencing principles
  • whether there exist valid alternatives to the sentence imposed

The Supreme Court of Canada again endorses these factors in Goltz[5] with the additional suggestion that a comparison with punishments for other crimes in the same jurisdiction might assist in determining the issue. All of these factors must be considered and balanced by the court in determining whether the mandatory minimum sentence is grossly disproportionate to what is otherwise appropriate.[6]

Section 718.1 makes clear that the “fundamental principle” of sentencing is proportionality. The sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.[7] Indeed, the Supreme Court of Canada has made clear that the sentence imposed “should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender”[8] and that all sentencing matters must proceed on an “individual or case-by-case basis”[9]. Furthermore, a sentence cannot be “fit” if it does not respect the fundamental values outlined in the Charter[10].

Comparison of Punishments in the Same Jurisdiction

The net result of this inflationary effect is to render a consideration of pre-MMP sentencing cases of somewhat limited assistance.[11]

There have been no reported cases where the Crown has alleged the aggravated circumstance of trafficking in or near a school or any other public place usually frequented by persons under the age of 18, thus triggering the mandatory 2-year sentence minimum.

Second Branch – General Inquiry “Reasonable Hypotheticals”

This stage of the analysis involves a consideration of whether the mandatory minimum is grossly disproportionate within “reasonable hypotheticals”. As noted in Goltz, “reasonable hypotheticals” must be examples that “could commonly arise in day-to-day life[12] and this determination should not encompass the “far- fetched or marginally imaginable cases[13].

Mr. Justice Code posits a series of reasonable hypothetical examples in Nur, many of which are based on real cases. In discussing the development of the law as to what constitutes a “reasonable hypothetical” his Lordship concluded that the modern approach is to use actual real cases as a starting point[14].

A far-fetched and unlikely scenario will likely be rejected as not being reasonable and not in keeping with the legal test.

Analysis with regard to s.12 (cruel and unusual punishment)

i) First branch – generalized and specialized inquiry

The following is provided as an example of the factors you may consider, we have provided reasonable hypotheticals for an illustrative purpose.

(1)           the gravity of the offence

The fact that the Crown is alleging it was performed in a dial-a-dope capacity weighs against the accused. However, the fact that it is a single transaction for a very small quantity of cocaine without indication of further offences to be committed at the location all weigh in the accused’s favor.

(2)           the personal characteristics of the offender

–       Age

–       No criminal record

–       Found to have no other drugs and only $80 at time offence

–       No weapon on person or in vehicle

–       Search of apartment yielded???

–       Need to know his employment history and his prospects of rehabilitation

 (3)           the particular circumstances of the case

The accused’s early GP and his compliance with strict bail conditions for over 1 year weigh in his favour

The public areas size– the location and visibility of the transaction –

The accused was not carrying a weapon at the time of the offence (no safety risk to public)

The accused sold a very small quantity of cocaine and was only found to have $80 and no other drugs on his person

(4)           the actual effect of the punishment on the offender.

Unjustified punishment with an over emphasis on General deterrence and denunciation while ignoring other principles of sentencing more significant and impactful to people involved in the commercial drug trade.

  • Whether the punishment is necessary to achieve a valid penal purpose

Crown will argue for general deterrence and denunciation.

Research points to the fact that swiftness and certainty in justice are the most likely factors to influence further offending on a specific and general level.

  • whether it is founded on recognized sentencing principles

Not based on previous case law.

  • whether there exist valid alternatives to the sentence imposed

We would submit that the appropriate sentence would be a suspended sentence with drug treatment. At the very least a short penal sentence followed by a period of probation and perhaps counseling.

Examples of recent cases where the gravity of the offence was worse, or the personal characteristics of the accused are more aggravating:

R. v. Kumar 2013 BCSC 2171[15]

– accused charged with trafficking cocaine, and PPT cocaine and heroin

– undercover officer purchased $80 (0.8g) of coke from Kumar through dial-a-dope operation. Kumar then found to have $440 worth of cocaine and 1.8g of heroin in 18 packets.

– offences occurred while accused on probation for possession

– accused had youth record, and as an adult had been convicted and sentenced on 3 separate offences including a trafficking offence

– Accused was 22 years old, evidence indicated he was casual cocaine user, not an addict, no other mitigating circumstances besides the guilty plea

– Crown sought 9 months on each count concurrent

Sentenced to 6 months jail on each count to be served concurrently

R. v. Gill 2013 BCCA 320[16]

–       Accused sold 0.8g of coke to undercover officer in dial-a-dope scenario, sentenced to 6 months jail, 12 months probation

–       Appeals, says he should have gotten CSO

–       Appeal dismissed,

–       Accused had prior record of trafficking

–       Accused 30 years old, lives at home with mom, self-employed as event planner

–       Problems with alcohol /drugs, but not to point of addiction

R. v. Voss [2014] B.C.J. No. 1024[17]

Judge Woods, Fort St. John

–       charged with PPT of cocaine: 22.5g of cocaine, 56.2 g of crack cocaine, total of 78.7g (worth over $6000)

–       Also had $857 in cash

–       Voss was 27 years old at time of offence, aboriginal

–       No previous criminal record

–       Completed Grade 12 education, some other training courses

–       Unemployed at time of offence and time of sentencing but had taken training towards becoming employed in the oil industry

–       Grew up around alcohol and substance abuse

–       Had a 7 year old son who he helped raise

–       Addicted to alcohol, weed, and coke. Addiction and debt fueled his trafficking

–       Had letters of support from family members and previous employers

–       Since the offence, he lived sober lifestyle, complied with all conditions

–       Crown sought 6-9 month custodial sentence

–       Sentenced to 30 months of probation, conditions to keep the peace, report, no alcohol/drugs, 15 month curfew (10pm to 6 am), counseling as directed

ii) Second branch – reasonable hypotheticals

A realistic hypothetical for the courts to consider is a scenario where an 18 year old with no criminal record and an addiction is caught trafficking a small amount of Marijuana in or near a public place usually frequented by persons under 18. In this scenario, the offender would be subject to the mandatory minimum or 2 years in jail despite of the fact that this is a grossly disproportionate sentence in the circumstances.

b) Section 7 arguments

As noted by the Supreme Court of Canada the deprivation of life liberty and security of person via laws that are arbitrary, overbroad, vague or grossly disproportionate in effect will be deemed unconstitutional[18]. It cannot stand where it bears no relation to, or is inconsistent with, the objective upon which it is premised[19].

In essence, we are making the argument that s. 5 (3) (ii) (A) of the CDSA is much too overbroad and also much too vague. Overbreadth and vagueness are two separate and different concepts that may be applied separately or may be closely interrelated.[20]


Overbreadth analysis looks at the means chosen by the state in relation to its purpose. The general question of inquiry in considering whether a legislative provision is overbroad is whether the legislative means are necessary to achieve the State objective? If the state, in pursuing a legitimate objective uses means that are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual’s rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.”[21]

Before an it can be found that an enactment is so broad that it infringes the s.7 of the Charter, it must be clear that the legislation infringes life, liberty, or security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective.[22]

In R. v. Heywood, the court examined a provision of the Criminal Code that prohibited those convicted of sexual offences from loitering “in or near a school ground, playground, public park or bathing area” and determined that the legislation was overbroad in its geographical amibit. The court ruled that the application of this legislation to schools and playgrounds was appropriate, but that its application to all public parks and bathing areas was overly broad because not all such places are places where children are likely to congregate.[23] Prohibiting individuals from loitering in all places in all parks is a significant limit on freedom of movement.

Analysis with regard to overbreadth

The purpose of imposing s. 5 (3) (ii) (A) (mandatory minimum of 2 years) of the CDSA is to protect children from the risks associated with trafficking of prohibited substances.

Parliament notes that, “defining such places may prove to be difficult”[24]

Our argument here is that this provision is too overbroad with respect to its objective.

By mandating a minimum of 2 years in jail, for trafficking near an area “usually frequented by persons under 18 years of age”, and individuals liberty and security of the person is violated and the effects are disproportionate application of the law as it applies to sentencing.


The established test for assessing “void for vagueness” claims under s.7 of the Charter is that a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.”[25]

Vague laws have the potential to violate the requirements of the principles of fundamental justice that citizens be provided with fair notice of prohibited conduct, and that their be adequate safeguards against selective and arbitrary law enforcement.

Factors to be considered in determining whether a law is too vague include[26]:

a)    the need for flexibility and the interpretive role of the courts

b)    the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate

c)    the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist

Section 1 “Oakes Test”

Minimal Impairment –

  1. Did the government have a pressing and substantial objective?

Objective is to protect youth from dangers associated with drug trafficking

  1. Proportionality Analysis

i.     Rational connection between the objective and the legislation?

Provision meets this branch of the test

ii.     Does the law minimally impair on the right? Has it avoided excessive impairment?

-Argue the impairment is excessive as it is overbroad and results in the imposition of grossly disproportionate sentences

iii.     Positive benefits of the law vs infringement of the Charter right (final balancing)

–       law is overbroad and imprecise

–       law infringes s.7 and s.12 of the Charter in a way that goes beyond minimal impairment because it subjects


Final Summary

Section 5(3)(a)(i) of the CDSA violates s.12 of the Charter as it results in cruel and unusual punishment in the sense that the mandated sentence of 2 years is grossly disproportionate to an appropriate sentence given the gravity of the offence and the personal characteristics of the accused.

The facts of this case which include: i) the accused does not have a criminal record; ii) the small quantity of drugs trafficked; iii) the accused has excellent prospects of rehabilitation – In addition to the consideration of lessor sentences which have recently been imposed in more serious/aggravating circumstances, demonstrate that a 2 year custodial sentence is grossly disproportionate to the sentence which would be rendered if not for the mandatory minimum.

Alternatively, the reasonable hypothetical described above (young adult trafficking small quantity of marijuana near a public place frequented by persons under 18) reinforces the fact that this law produces sentences that violate the s.12 freedom from cruel and unusual punishment and the law should be held to be of no force or effect.



Zack Myers


Matthew Fingas

List Of Cases and Notable Paragraphs

[1] Criminal Code 724(3) and R. v. Gardiner [1982] 2 SCR 368).

[2]R. v. Smith, [1987] 1 S.C.R. 1045 at para 53 (“Smith”),
R. v. Ferguson, [2008] 1 S.C.R. 96 at para 14 (“Ferguson”) [2012] O.J. No. 612 at para 80 (“Smickle”)

[3] R v Goltz [1991] 3 S.C.R. 485 at paras 41-43

[4] R v Goltz [1991] 3 S.C.R. 485 at paras 41-43

[5] R v Goltz [1991] 3 S.C.R. 485 at paras 41-43

[6] R. v. Smith, [1987] 1 S.C.R. 1045 at para 53

[7] Criminal Code of Canada, RSC, 1985, C-46, s 467.1

[8] R. v. C.A.M., [1996] 1 S.C.R. 500 at para 40

[9] R. v. Gladue, [1999] 1 S.C.R. 688 at para 80

[10] R. v. Nasogaluak, [2010] 1 S.C.R. 206, at para 48

[11] R. v. B.C.M. 2008 BCCA 365

[12] R v Goltz [1991] 3 S.C.R. 485 at para 73

[13] R v Goltz [1991] 3 S.C.R. 485 at paras 42

[14] R v Nur [2011] O.J. No. 3878 at paras 99-102

[15] R. v. Kumar 2013 BCSC 2171

[16]R. v. Gill 2013 BCCA 320

[17]R. v. Voss [2014] B.C.J. No. 1024

[18] Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 at para 8.

[19] Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 594-5

[20]R. v. Heywood [1994] S.C.J. no.101 (S.C.C.) at para 47

[21] R. v. Heywood [1994] S.C.J. no.101 (S.C.C.) at para 49

[22] R. v. Heywood [1994] S.C.J. no.101 (S.C.C.) at para 52

[23] R. v. Heywood [1994] S.C.J. no.101 (S.C.C.) at para 55

[24] Legislative Summary of Bill C-10 at Page 51

[25] R. v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606 at page 643

[26] R. v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606 at page 647



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