Vancouver Criminal Lawyer: Joel Whysall

The Facts: Police were called to the Toronto Airport and met with airport employees who had discovered three brick shaped packages of cocaine in checked luggage. A second bag was also checked with a further four brick shaped packages of cocaine. The total weight was 8.029 kilograms and estimated value was $321,160.00. The passenger associated with the checked bags was arrested and removed from the plane. He was charged with possession of cocaine for the purpose of trafficking. Crown Counsel agreed he was merely a courier but sought 7 years jail in light of the substantial quantity of cocaine involved. Joel Whysall was retained for the hearing. He successfully argued that it was unconstitutional that a conditional sentence order, where the offender serves his sentence on conditions in the community, was not an available sentencing option and that a conditional sentence was more appropriate than a jail sentence.

Result: Constitutional Remedy Granted. Conditional Sentence Imposed. The Provincial Court Judge agreed that a sentence outside the usual range was appropriate in this offender’s case because of his exceptional circumstances. Constitutionally, s.742.1(c) of the Criminal Code, which made conditional sentences unavailable for possession of cocaine for the purpose of trafficking, was found to be inconsistent with both s.7 and s.15 of the Charter. With regards to s.7 of the Charter, it resulted in a deprivation of liberty in a manner that is not in accordance with the principle of fundamental justice of overbreadth. With regards to s.15 of the Charter, it resulted in more Indigenous offenders serving their sentences in jail rather than in their communities and thus perpetuates the disadvantage of Aboriginal offenders. The declaration of invalidity with s.742.1(c) was not limited only to Aboriginal offenders but limited to all offenders.