Digest: R v Carswell, 2018 SKQB 53

• Date: February 13, 2018

Reported as: 2018 SKQB 53

Docket Number: CR 99/16 JCPA , QB17434

Court: Court of Queen's Bench

Date: 2018-02-13

Judges:

• Currie

Subjects:

• Criminal Law � Sentencing � Controlled Drugs and Substances Act � Trafficking
• Criminal Law � Charter of Rights, Section 12

Digest: The accused was convicted after trial of trafficking, having delivered a bag containing MDMA to penitentiary grounds. The accused was not involved in the drug trade. She had been convinced by the father of her child, who was an inmate in the penitentiary, to deliver the drugs. The location, penitentiary grounds, triggered a mandatory minimum sentence of two years by operation of s. 5(3)(a)(ii)(B) of the Controlled Drugs and Substances Act. The accused applied for a ruling that, in the circumstances of her case, the mandatory minimum sentence was cruel and unusual punishment and would infringe her right under s. 12 of the Charter. Pursuant to the process described in R v Lloyd, 2016 SCC 13, the court considered: 1) the range of a fit and proportionate sentence, absent the mandatory minimum sentencing provision; 2) whether the mandatory minimum sentence was grossly disproportionate to the offence and its circumstances; and 3) the proportionality of the mandatory minimum sentence in the context of reasonably foreseeable circumstances.
HELD: The mandatory minimum sentencing provision did not infringe the accused�s s. 12 Charter right and the application was dismissed. A sentence of two years was appropriate. 1) The goals of deterrence and denunciation were of primary importance. Absent the mandatory minimum sentence, the accused would receive a prison sentence in the range of 18 months to four years. The offence was serious. Parliament identified it as such by making MDMA a Schedule 1 substance and by providing that where the offence was committed on penitentiary grounds, the offender may receive a life sentence. The harm of trafficking illicit drugs is a matter of grave concern, exacerbated by the location of the trafficking. The accused�s commission of the offence was planned and deliberate and her moral culpability was high. In her favor were the facts that she got caught up in the drug trade, rather than being involved in it, trafficked neither to profit, nor to support a drug habit, had no criminal record, was a productive member of society and was a low risk to reoffend. 2) The mandatory two-year sentence fell within the range of a fit and...