Mandatory Minimums & Drug Offences: An Interpretation of R v Lloyd

This guest post was contributed by Lily MacLeod, Faith Cameletti, and Adam Lake. Lily, Faith, and Adam are all JD Candidates (2019) at Osgoode Hall Law School.

Before the Supreme Court’s decision in R v Lloyd, 2016 SCC 13 to strike down a one-year mandatory minimum sentence for violating section 12 of the Charter (which prohibits cruel and unusual treatment), the court had only nullified two other mandatory minimums for breaching section 12. Typically, the Supreme Court has set a very high bar for establishing whether a mandatory minimum could inflict cruel and unusual punishment. The court has preferred to defer to Parliament to craft mandatory minimums except when it might reasonably result not merely in an excessive sentence, but in a “grossly disproportionate” sentence that would “outrage standards of decency” (para 24).

We suspect that the court’s judgment in R v Lloyd will not necessarily affect the court’s general tendency to defer to Parliament on mandatory minimums. However, we do propose that the majority’s decision will likely make mandatory minimums for drug offenses more constitutionally vulnerable to section 12 scrutiny. Instead of emphasizing the inherent blameworthiness of the crime, like traditional section 12 jurisprudence, the court considered the individual motivations and circumstances of offenders – including the reality of addiction issues and rehabilitative needs – to determine the constitutional status of the provision. Given the decades of available evidence on the ineffectiveness of mandatory minimums, this decision represents a small step in the right direction. This paper examines how R v Lloyd makes mandatory minimums for drug charges more constitutionally vulnerable, and discusses why this represents a step in the right direction. Ultimately, we commend the court’s use of empirical evidence to make recommendations for mandatory minimums and examine the implications of these recommendations.

Facts & Background

In 2013, Joseph Lloyd, was convicted on three counts of possessing crack, methamphetamine and heroin for the purpose of trafficking under section 5(3)(a)(i)(D) of the CDSA. As a result, he was subject to a one-year mandatory minimum sentence. Mr. Lloyd argued that the provision violated section 7, 9 and 12 of the Charter. The provincial court sentenced him to one year in prison, but ruled that the provision nevertheless violated section 12 of the Charter. On appeal, the Supreme Court re-analyzed the constitutional validity of the provision in the CDSA. The majority concluded that the provision violated section 12 and could not be saved under section 1. As a result, the court rendered the provision of no force or effect, indicating a low tolerance towards mandatory minimums in the drug context. Overall, the majority concluded that mandatory minimums that “apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional” (para 35). For a complete examination of the decision, see Kiran Mahal’s blog post.

Analysis of the Case

Deferral to Parliament

Since the advent of the Charter, the Supreme Court has consistently maintained that it ought to defer to Parliament’s judgment to create mandatory minimums to deter crime. However, as Michael Tonry wrote, “the greatest gap between policy and knowledge in … sentencing concerns mandatory minimums.”[1] Mandatory minimums are meant to serve three purposes: to deter crime, to produce uniformity in sentencing, and to make sentencing more transparent.[2] Decades of evidence has demonstrated that mandatory minimums fulfill none of these goals in any measurable way.[3] In fact, in 1987, the Canadian Sentencing Commission recommended the abolition of all mandatory minimums, with the exception of the most heinous crimes like murder and high treason.[4]

The main issue for the majority in R v Lloyd was whether a one year mandatory minimum sentence could be grossly disproportionate to the offence of possession for the purpose of trafficking a Schedule I substance in reasonably foreseeable cases.^[5] The majority found the provision “constitutionally vulnerable” because it “cast its net over a wide range of potential conduct” and therefore caught conduct that is much less blameworthy than the serious drug trafficking that it was meant to target.[6] However, the majority in Lloyd does not entirely depart from the court’s tradition of deferring to Parliament’s judgment. In the section 7 analysis of Lloyd, the majority argued that the court ought not to interfere with Parliament’s right to set mandatory minimums to deter crime (paras 40, 43, 45, and 46). Such a decision would create a section 7 threshold lower than the section 12 threshold, and thus render section 12 “nugatory” (para 41). This change would interfere with Parliament’s powers and overstep the bounds of the courts. The majority, therefore, did not entirely reverse its traditional deference to Parliament’s right to create mandatory minimums to deter crime. The Supreme Court’s continued deferral to Parliament is interesting in light of the evidence on mandatory minimums. Furthermore, according to the Supreme Court’s decision in Irwin Toy v Quebec (Attorney General), [1989] 1 SCR 927, 58 DLR (4th) 577 the court ought not to second-guess a legislature’s judgment if it is based on the weight of conflicting social science. The social science on mandatory minimums, however, seems to speak overwhelmingly against their effectiveness.[7]

A New Focus on Mitigating Factors: The Circumstances and Motivations of the Offender

The majority, however, departed from the Supreme Court’s past judgments in a number of other ways that make mandatory minimums on drug offenses more vulnerable to constitutional challenge under section 12.  The majority, for example, diverged from the way that the court had traditionally assessed the blameworthiness of an offender. Previously, the court typically reconciled mandatory minimums with section 12 by focusing on the blameworthiness of the criminal act itself, rather than on the circumstances or motivations of the offender. The minority adopted this approach in Lloyd by arguing that trafficking is always morally blameworthy regardless of the offender’s motivation. The dissent disagreed that the challenged provision violated section 12 for being overbroad, and emphasized both precedent and the court’s responsibility to defer to Parliament. According to the dissent, mandatory minimums are not “per se” unconstitutional (para 109). They argued that, unlike in previous cases where the court struck down mandatory minimums, the offense of trafficking “is serious and involves blameworthy conduct” (paras 79 and 85). The dissent emphasized the importance of deferring to Parliament because this case featured an instance of strong governmental policy (para 103). This emphasis on the will of Parliament and the gravity of the crime (apart from the circumstances of the individual criminal) are in keeping with most section 12 jurisprudence.

The majority, on the other hand, highlighted that potential convicts under the provision might include a dangerous drug dealer, but also someone sharing a small amount of a schedule I substance with a friend or spouse who was charged for sharing marijuana in a social setting 9 years prior, as well as an addict charged with a second trafficking offence who then sought rehabilitative help between sentencing and conviction. The court found that a one year sentence on the latter two offenders would be grossly disproportionate and therefore violate section 12. The majority argued that a professional drug dealer who traffics for profit is more blameworthy and acts for completely different reasons than those who share small amounts of marijuana for social use, or who traffic to support an addiction. This distinction considers the motivations and circumstances of the offender, rather than merely the act of trafficking itself.

The majority also deviated from the Court’s traditional jurisprudence by expressing sensitivity to the precarious situation of addicts and their need for rehabilitation. Although the law allows an exception to mandatory minimums for those that have completed an approved rehabilitation program before sentencing, the majority found this exemption “too narrow to cure the constitutional infirmity” (para 34). In other words, the Supreme Court recognized not only that addiction is an important feature of a criminal’s individual circumstances, but also that a mandatory minimum that does not adequately address the needs for addicts to access rehabilitation cannot be constitutional. If rehabilitation would exempt an addict from a mandatory minimum, then the rehabilitation services would also need to be adequate. This sensitivity toward addicts is another way in which the majority recognized the individual circumstances of the offender rather than just the gravity of the crime.

Although the Supreme Court has not eliminated the Court’s tradition of deferring to Parliament’s decisions to create mandatory minimums, Lloyd likely makes mandatory minimums for drug offenses vulnerable to section 12 violations. Unlike previous Supreme Court decisions that have reconciled mandatory minimums to section 12 by considering only the gravity of the criminal action, this new decision strikes down a drug-related mandatory minimum on the grounds that it has not adequately weighed the individual motivations and circumstances of the offenders that might be caught by the provision. Addicts and drug dealers are not equally morally blameworthy, and the court recognizes that addicts in particular have a special need for rehabilitation.

Directions for the Future: Empiricism

While the court does not consider the evidence about the ineffectiveness of mandatory minimums, the court commendably bases its recommendations for mandatory minimums on data from international sources. The majority recommended that Parliament consider either “narrowing the reach” of the provision so that the mandatory minimum might only catch blameworthy offenders, or else build a “safety valve” that would allow judges to use their discretion to exempt outliers from the mandatory minimum (para 36).

The court calls for Parliament to narrow the statute’s language so offenders who do not deserve the mandatory minimum sentence can receive lower sentences. In terms of policy implications, this means that Parliament would need to determine the varying levels of the moral blameworthiness of crimes. While the majority outlined that sharing substances with a spouse, and trafficking to support an addiction, are the least blameworthy forms of trafficking, the dissent argued that both forms of trafficking were serious offenses. These different moral assessments of trafficking stress that “narrowing the reach” of mandatory minimums would only be a viable course of action should Parliament agree with the majority’s moral assessment. The majority’s analysis of “acceptable” hypotheticals also calls into question which mandatory minimums Parliament would need to narrow outside the drug context. As a result, the court does not provide Parliament with much guidance about which mandatory minimums are constitutionally vulnerable. Nor does the court advise on how to draft these provisions so that they fall in line with the Charter. For these reasons, the second recommendation discussed below appears more realistic and is also supported by evidence.

The second potential direction that Lloyd recommends is for Parliament to provide judges with greater judicial discretion. The majority referred to this as “residual judicial discretion for exceptional cases”. It noted that this “is a technique widely used to avoid injustice and constitutional infirmity” in countries such as England, New Zealand, South Africa, and Sweden (para 36). This approach is advantageous because it leaves mandatory minimums in place (thus deferring to Parliament) while allowing judges a residual “safety valve” in exceptional cases where the sentence would be disproportionately unjust (para 36). However, the policy implications for this recommendation also relate to differences in the moral paradigms between the majority and the dissent. Instilling a safety valve into the framework of the statute grants to judges the discretion in applying the law. Residual discretion might not therefore reduce the sentences of addicts and other less morally blameworthy people, since their sentence would depend on the discretion of a judge whose moral opinion on trafficking may be quite severe. However, this discretion would provide more constitutional protection to offenders than a regime that automatically sends them to prison. Hopefully, Parliament will study the advantages and disadvantages of this technique in other jurisdictions to inform its decision.

Conclusion

Lloyd does not likely represent a monumental change in the Supreme Court’s jurisprudence on mandatory minimums. The Supreme Court continues to express the importance of deferring to Parliament in crafting mandatory minimums. However, the majority deviated from the traditional section 12 jurisprudence by emphasizing the individual circumstances of the offender rather than merely the severity of his act in its overbreadth analysis. This decision may have therefore made at least drug related mandatory minimums constitutionally more vulnerable to section 12 scrutiny. Considering that empirical studies attest to the ineffectiveness of mandatory minimums, Lloyd may represent a step in the right direction towards empiricism.

[1] Michael Tonry, “The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings” (2009) 38 Crime & Justice 65 at 65 [Torny].

[2] Tonry, at 67.

[3] Tonry, at 67-70.

[4] Sentencing Reform: A Canadian Approach: Report of the Canadian Sentencing Commission (Ottawa: Minister of Supply and Services Canada 1987) at ch 8 [CSC Report].

^[5] CSC Report, at para 22.

[6] CSC Report, at para 27.

[7] Tonry, at 67-70.