S.5 of the Narcotic Control Act – (1) no person shall import into Canada or export from Canada any narcotic. – any person who violates it is indictable of an offence to imprisonment of no less then 7 yrs. S retuned to Canada with cocaine hidden on his person/sentenced to 8 yrs in prison
Whether the mandatory minimum sentence of s.5(2) is contrary to , infringes, or denies the rights and guarantees contained in the Charter and particularly s 12?
If so, can it be justified in a free and democratic society under s.1?
Mandatory minimum sentences, except for murder and high treason, should not be used.
S.12 of the Charter will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.
s.12 of the Charter, which guarantees each and every one of us that we shall not be subject to any cruel and unusual treatment or punishment.
**Whether the punishment prescribed is so excessive as to outrage standards of decency.
***Test: grossly disproportionate – aimed at punishments more then merely excessive.
Assessing grossly disproportionate court must consider – factors:
**Gravity of offence.
**Personal characteristics of the offender.
**Particular circumstance of the case.
Court should not consider general deterrence when assessing whether the sentence is grossly disproportionate to the accused
Mandatory minimum violates s.12 of Charter, is not saved by s.1 of Charter