Peine minimale en matière de stupéfiants jugée inconstitutionnelle.
[51] Sharing small amounts of Schedule 1 substances is an illegal activity which requires mens rea and as such the offender is morally culpable. However, his or her degree of moral culpability is far less than that which would attach to someone selling large amounts for profit. The gravity of the offence for sharing small amounts is less serious as the impact of the dangerous substance is limited to the few people with whom it is intended to share. The impact on society is more directly related to the fact that dangerous drugs are being used than to the distribution of the small amount to those users.
[52] I am confident that not many cases involving the sharing of small amounts of Schedule 1 substances end up being charged as trafficking or possession for the purpose of trafficking but I am equally confident that there have been such cases which resulted in convictions. In my view, the likelihood that offences of this nature may often be prosecuted as cases of simple possession does not detract from the reasonableness of the hypothetical given the scope to be afforded to reasonable hypotheticals, as determined in Nur.
[53] Sentences in simple possession cases range from discharges to short periods of imprisonment, even for repeat offenders. There is a relatively minor distinction between possessing a small quantity of a Schedule 1 substance for personal use and possessing that same small quantity for the purpose of sharing it, yet the difference in sentences for those slightly different offences would be dramatic if s. 5(3)(a)(i)(D) is constitutionally valid.
[54] The offender in the identified hypothetical would have a prior conviction for a designated drug offence which may be more than ten years old. He or she is likely an addict but may instead be a recreational user of drugs. That is a personal characteristic which is not relevant to a reasonable hypothetical. All sorts of drug users share drugs. A one year jail sentence for this hypothetical offender goes well beyond what is justified by the legitimate penological goals and sentencing principles of the CDSA. It is a sentence which Canadians would find abhorrent or intolerable. Accordingly, I find that the mandatory minimum sentence of imprisonment for one year required by s. 5(3)(a)(i)(D) of the CDSA constitutes cruel and unusual punishment.
