Mandatory Minimum Sentence for Drug Offences Struck Down by BC Provincial Court: R v Lloyd
After finding the mandatory minimum sentence for drug possession for the purpose of trafficking (contrary to s. 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]) violated s. 12 of the Charter (R v Lloyd, 2014 BCPC 8 (CanLII) [Lloyd]) in January 2014, Galati J. of the Provincial Court of British Columbia has found that the law is not saved by s. 1 of the Charter (R v Lloyd, 2014 BCPC 11 (CanLII)). As such, the law was deemed of no force based on its unconstitutionality.
As written, s. 5(3)(a)(i)(D) of the CDSA imposes a mandatory minimum sentence of one year imprisonment for anyone convicted of drug trafficking (under s. 5(1)), or possession for the purpose of trafficking (under s. 5(2)), if the offender was previously convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence in the previous 10 years. This mandatory minimum sentence is one of many that took effect in 2012, following the enactment of Bill C-10, Safe Streets and Communities Act, SC 2012, c 1.
The applicant, Mr. Lloyd, was convicted in September 2013 for three counts of possession for the purpose of trafficking under s. 5(2) of the CDSA. He was found with 2.39g of crack cocaine, 6.16g of methamphetamine, and 0.64g of heroin, as well as $304 cash and a notebook with names and numbers. As he had recently been convicted of a designated drug offence (in addition to a very lengthy criminal record), he fell within the mandatory minimum sentence under s. 5(3)(a)(i)(D). He applied for a constitutional remedy pursuant to s. 24(1) of the Charter, claiming that ss. 7, 9, and 12 of the Charter are violated by the mandatory minimum (though the ss. 7 and 9 challenges were quickly dismissed).
Constitutionality of CDSA Mandatory Minimum Sentences
It seems as though the mandatory minimum sentences for drug crimes may be the next to work their way through the appellate pipelines. I wrote here and here about the successful challenges to the minimum sentence for possession of a prohibited weapon under s. 95 of the Criminal Code, RSC, 1985, c C-46 (see: R v Nur, 2013 ONCA 677; R v Smickle, 2013 ONCA 678 [Smickle]; R v Rocheleau, 2013 ONCA 679; R v Chambers, 2013 ONCA 680; R v Charles, 2013 ONCA 681; and R v Meszaros, 2013 ONCA 682).
Standing in the Provincial Court
The Crown initially challenged the jurisdiction of the provincial court judge to hear the constitutional argument. They argued that because the Superior Court is the court of inherent jurisdiction that it is not within the scope of a provincial court judge to make a ruling under s. 52(1) of the Constitution Act, 1982 to strike down a law. Further, citing case law, they submitted that because the mandatory minimum would not be outside of the range of appropriate sentences in this case, that the constitutional question was irrelevant and should not be considered. However, the judge held that the constitutional analysis was necessary due to potential inflationary effects of mandatory minimum sentences, citing R v Nur, 2013 ONCA 677 [Nur] at para 110 (Lloyd, para 37).
Section 12: Cruel and Unusual Punishment
In Lloyd, the judge utilized the inquiry into s. 12 Charter “gross disproportionality” as described in Nur, leaning heavily on Doherty JA’s reasoning. In order for a sentencing provision to be found “cruel and unusual” under s. 12, the sentence must be so excessive as to outrage standards of decency and disproportionate to the extent that Canadians would find it abhorrent or intolerable (Lloyd, para 40). This is a two-stage inquiry:
(1) Is the punishment disproportionate as applied to the accused before the court? If so,
(2) is the sentence grossly disproportionate when applied to reasonable hypotheticals?
The factors informing this analysis include the gravity of the offence, the circumstances of the offender and case, the actual effect of the punishment on the individual, principles of sentencing, the existence of valid alternatives to the mandatory minimum, and a comparative analysis of punishments for other crimes (para 78).
In this case, the judge found that the sentence would not be grossly disproportionate to the offender, as it is in the appropriate range for this offence (para 46). Despite this, the judge went on to consider the reasonable hypotheticals, in stage 2 of the s. 12 inquiry (and indeed, the applicant here was within his right to challenge the law more broadly; see Nur, para 110). Here, the reasonable hypothetical put forward is a common one for the downtown east side of Vancouver. The court considered an addict in possession of a small amount of a Schedule 1 substance, which they intend to share with a spouse or friend. This would be caught under the same mandatory minimum sentence in this case, and the judge deemed applying a mandatory minimum of one year in this scenario as grossly disproportionate:
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 (Lloyd, para 54).
As is a common theme in s. 12 cases, the mandatory minimum sentence provision was found to cast too wide of a net to be constitutional, and it is inconsistent with the objective of combating drug trafficking and escalation in the crime.
Section 1: The Oakes Test
The issue of whether the s. 12 breach of the mandatory minimum could be saved under s. 1 of the Charter was dealt with in a separate hearing (ruling delivered February 19, 2014). In making a s. 1 determination under R v Oakes  1 SCR 103 [Oakes], the court must:
(1) be satisfied that the objective of the law is of sufficient importance to warrant overriding the infringed constitutional right, and
(2) be satisfied that the means of infringing the right are “reasonable and demonstrably justified” under a three-part proportionality test (rational connection, as minimal impairment as possible, and proportionality between objective and effect).
The Crown submitted in Lloyd that the significant objective of combating the distribution of illicit drugs is sufficiently pressing and important to justify a s. 12 breach. The applicant relied on Nur at paras 177-181, where Doherty JA stated that because a s. 12 breach inherently outrages the standards of decency, the sentencing objectives of deterrence and denunciation cannot justify the breach. However, in R v Morrisey,  2 SCR 90, it was held that general deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual, including a potential violation of s. 12.
In this case, the judge sided with the Crown, indicating that under the first branch of the Oakes test, the objective of combating trafficking of Schedule 1 substances is pressing and substantial enough to justify a breach of s. 12. However, s. 5(3)(a)(i)(D) was not shown on a balance of probabilities to be “reasonable and demonstrably justified.” For a law that catches people who are often addicts trafficking to support their own habit (including the reasonable hypothetical offender), generally deterrence is ineffective and the mandatory minimum may not necessarily lead to the legislative objective of minimizing drug trafficking.
The net was said by the judge to be cast too far to be justified, as there is an overrepresentation of Aboriginal offenders and those with mental illness among those charged, as such the s. 12 breach was not found to be a reasonable limit under s. 1.
Any conclusions to be draw from this case are very tentative. The Crown has already announced an intention to appeal the ruling of unconstitutionality, and this case will likely be heard by multiple levels of appellate court. More than anything, it demonstrates how influential the Nur and Smickle cases were in 2013 at the Ontario Court of Appeal. There is a great deal of judicial pushback against decaying judicial discretion resulting from Bill C-10 and other recent Conservative legislation. Mandatory minimums have become a political battleground, but one that the Supreme Court of Canada will ultimately rule on.
Since the reasoning here is very close to that of the aforementioned gun possession cases, the constitutionality of drug-related mandatory minimum sentences may very well turn on the Supreme Court’s decisions in the Nur series of cases in the coming year. These cases, in addition to the pre-sentence custody cases, are quite interesting to watch, as they will effectively determine to scope of judicial discretion for years to come.