John Hale

The applicant, having been found guilty of conspiracy to commit human smuggling, challenged the constitutionality of the three-year mandatory minimum sentence under s. 117(3.1)(a) of the Immigration and Refugee Protection Act.

The applicant argued the provision violates s. 12 of the Charter as it would be grossly disproportionate when applied to a reasonably foreseeable hypothetical offender who plays a minor role for little profit.

Applying the framework from R. v. Nur, the court agreed that a three-year sentence for a minor participant would be grossly disproportionate and shock the conscience.

The court further found the infringement was not justified under s. 1 of the Charter, declaring the mandatory minimum provision unconstitutional and of no force and effect.

The offender was convicted of possession of a large quantity of marijuana for the purpose of trafficking after police discovered approximately 29 pounds in the trunk of his vehicle during a highway stop.

The defence sought a conditional sentence or, alternatively, an intermittent custodial sentence followed by probation, emphasizing the offender’s role as a single parent and the passage of time since prior offences.

The Crown sought a custodial sentence of 12–15 months given the offender’s prior trafficking convictions and the substantial value of the drugs.

The court held that denunciation and deterrence were the primary sentencing objectives and that a conditional sentence was inappropriate for a repeat offender involved with a large quantity of drugs.

A custodial sentence of nine months’ imprisonment followed by two years’ probation was imposed.