In a case that has raised questions about the effect of mandatory minimum sentences, a Manitoba judge has taken pity on a woman he convicted by agreeing to give her more freedom before he sends her to prison.
In a likely unprecedented move, Justice Sheldon Lanchbery reserved his decision and delayed the sentencing of 37-year-old Sandra Dignard by about two months. That will allow the mother of four time to make child-care arrangements before she is placed in custody. The judge said he has no choice but to sentence Dignard to two years in prison for drug trafficking, despite his belief she should not be locked up.
"I’m not without heart. I’m not a fan of mandatory minimums because I believe that justices or judges have the ability to sort the wheat from the chaff," the judge said as he prepared to impose the two-year mandatory minimum sentence in Court of Queen’s Bench this week.
"There’s no doubt in my mind that this is one (case) that no right-thinking person could imagine that what I’m going to have to do today is fit and proper, and I don’t see any way I can work around them."
Lanchbery had convicted Dignard of smuggling painkillers into Stony Mountain Institution in 2012 at the instruction of her boyfriend, who was then a Hells Angels prospect.
She hid 100 morphine pills — worth about $10,000 — on her body when she went for a conjugal visit. Dignard had earlier taken drugs into the prison at the behest of her boyfriend, who had active gang ties and a criminal record rife with drugs and weapons offences, court heard.
She was charged with drug trafficking within an institution and has been free on bail since. While the judge decided the case didn’t meet the legal test for committing a crime under duress, he agreed Dignard had been manipulated and victimized.
"He was using the mother of his children, but that doesn’t get you to the point of being forgiven for the offence," Lanchbery told Dignard.
Still, the childhood abuse she suffered that bled into her adult relationships made Dignard, in many ways, a victim, the judge acknowledged.
The former boyfriend who manipulated her testified about his involvement at her trial, but he was never charged in relation to the incident.
The case struck an emotional chord with each of the lawyers involved, with Crown and defence agreeing Dignard would have been a good candidate to serve her sentence under house arrest and avoid jail time, if the law allowed.
Her crime carries a mandatory minimum two years in prison, even though she had no criminal record before being charged and has not violated any of her court orders since the charge was laid. During the past few years, Dignard has sobered up, cut ties with her boyfriend and works hard to be a good mother to her kids, two of whom have special needs, court heard.
Dignard pleaded with the judge not to jail her, saying she knew she did wrong and "will take any other punishment you give me."
"Yes, I have discretion, but there’s a reason why those mandatory minimums are in place. I don’t agree with them, but I am required to follow the law as well" – Justice Sheldon Lanchbery
"I’m sorry for what I did, letting a man manipulate me and put me and my children in this horrible situation," she said during a brief but tearful speech in court.
"My kids are who I live for, and I changed my life for them, took alcohol and drugs out of my life. I’m begging you not to take me away from my kids and put them in the system."
Lanchbery reserved his sentencing decision until July 26 at her request, noting Dignard had "touched the hearts of three people in this room who usually don’t find themselves in this situation."
But he made clear he will impose the two-year sentence as mandated by federal legislation.
"Yes, I have discretion, but there’s a reason why those mandatory minimums are in place. I don’t agree with them, but I am required to follow the law as well," he said.
Defence lawyer Steven Keesic, who saw Dignard’s austere living situation first-hand, said it was one of the most difficult cases he’s worked on.
He said he had initially planned to launch a Charter of Rights and Freedoms challenge, arguing the two-year mandatory minimum sentence amounted to cruel and unusual punishment in this case but didn’t have enough resources to do so.
"Justice was not served in this case," he told the Free Press.
"Sometimes lawyers have cases where your clients are easy to fight for, but when you get an outcome like this, where your options are limited and resources for poor people are not available, you really almost wish you never were counsel because at the end of the day, you did everything in your power to fight hard for the client and go to trial, just to get two years."
Several recent mandatory minimum sentences, including for drug crimes, were introduced under Stephen Harper’s Conservative government about five years ago as part of a tough-on-crime, "truth in sentencing" agenda. Prime Minister Justin Trudeau has announced the current federal government would review sentencing provisions in Canada’s criminal-justice system. Promised reforms to mandatory minimum sentences were set to happen this spring, but they haven’t yet materialized.
In other cases, some of which have made their way to the Supreme Court, mandatory minimum sentences have been struck down as unconstitutional, said Doug King, staff lawyer with the Vancouver-based Pivot Legal Society, which has lobbied against mandatory minimum sentences for several years.
"If there’s somebody who, sending them to jail in this circumstance just seems completely unrealistic and unreasonable, then those provisions shouldn’t be allowed to stand. My hope, actually, is that ultimately this section is challenged and the judge or another judge in the future is able to find it unconstitutional," King said of Dignard’s case.
"The biggest effect of mandatory minimums is higher incarceration rates, and higher incarceration rates when it’s not necessary and when it’s not warranted. Certainly, that’s a gigantic problem, especially when you consider for the last decade we’ve been trying to push away from incarceration, particularly with aboriginal clients and specifically with aboriginal women."
David Milward, an associate professor of law at the University of Manitoba, said he hasn’t heard of a case like this before in which a judge reserved a sentencing decision to allow the accused more time outside of custody.
While he said many judges dislike mandatory minimum sentences for stripping them of their discretion, he said judges have the option to declare a constitutional exemption for individual cases involving mandatory minimum sentences, though that is rare and would likely trigger an appeal process. In the meantime, the federal government’s promised changes to criminal sentencing provisions need to happen, Milward said.
"I’ve heard a lot of talk and I’m not seeing a lot of walk so far. This is overdue," he said.
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