R v Lloyd: BC Court of Appeal Declines to Declare Minimum Sentencing Legislation Invalid
At issue in R v Lloyd, 2014 BCCA 224 was whether section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA] amounted to cruel and unusual punishment under section 12 of the Charter. Section 5(3)(a)(i) of the CDSA contemplates certain conditions whereby a sentencing judge must impose a mandatory minimum sentence of one year. Mr. Lloyd was captured under this rubric after his arrest and charge under section 5(3)(a)(i) of the CDSA, given his prior conviction for a similar trafficking offence and recent prison term.
On March 22, 2013, Mr. Lloyd was detained by police under the pretext of illegally riding a bicycle on the sidewalk. During the conversation with police Mr. Lloyd appeared agitated and nervous. The officers patted down Mr. Lloyd and found a knife on him, a violation of his probation. When Mr. Lloyd was arrested and searched more thoroughly, the officers then found what appeared to be illegal drugs, money, and a record of drug sale transactions. Mr. Lloyd was charged with three counts of possession of a Schedule 1 drug for the purpose of trafficking.
The relevant provisions of the CDSA state:
5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.
(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.
(3) Every person who contravenes subsection (1) or (2)
(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and
(i) to a minimum punishment of imprisonment for a term of one year if
(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years.
As Mr. Lloyd had been previously convicted under the CDSA for possession of a Schedule 1 drug, and sentenced to 80 days in prison, he was subject to the mandatory minimum sentence of one year under 5(3)(a)(i)(D).
Mr. Lloyd had some success at the trial level in the decision handed down by the Provincial Court of British Columbia in R v Lloyd, 2014 BCPC 0011 (a summary of the decision is available here), with Galati J. finding that the minimum sentence provision was unconstitutional. As a result, a declaration was issued rendering the provision of no force or effect. However, Mr. Lloyd was still given a one-year prison sentence, based on a consideration of aggravating sentencing factors, such as his previous criminal record.
The Crown appealed the sentence imposed by the trial judge, arguing that he had imposed a sentence that was unfit. The Crown also contended that Galati J. had erred in finding the minimum sentence to be unconstitutional, and thus had gone outside of his jurisdiction in issuing a declaration.
The Court of Appeal determined that the ultimate issue was the appropriate sentence given to Mr. Lloyd, and not the constitutionality of the minimum sentence. Further, the Court of Appeal determined that the trial judge had erred in issuing a declaration striking down the law as unconstitutional. That is, the Court of Appeal reasoned that while the law requires a court to decline to apply a law that it finds to be of no force or effect, the Provincial Court is not empowered to issue a declaration to strike down a law.
The Court of Appeal held that it was unnecessary to consider the constitutional issue as to whether s. 5(2) amounted to cruel and unusual punishment contrary to s. 12 of the Charter, because the minimum sentence provision did not increase the length of sentence faced by a person in the respondent’s position.
As a result, the Court of Appeal substituted the one-year sentence for that of 18 months, although it did adjust the sentence to give credit for time already served in custody.
The Court of Appeal also took note of the personal circumstances of Mr. Lloyd, that he sold drugs to finance his own drug habit, and that his previous convictions involved petty crimes, most likely committed to fund his addiction. Mr. Lloyd had also made efforts toward rehabilitation. Despite the difficulties he faced in attempting to recover from addiction in prison, he had attended rehabilitative programs while incarcerated and had contacted a drug treatment facility with the intention of attending once he was released. Nevertheless, the Court of Appeal found that the mitigating factors were outweighed by aggravating factors, as Mr. Lloyd had been convicted of three charges of possessing drugs while he had been out on bail.
Constitutional Powers to Grant a Declaration of Invalidity
As noted above, the Court of Appeal also looked at whether it was correct for the Provincial Court to issue a declaration that the law was of no force or effect. In this regard, the Court of Appeal took note of the lower court judge’s reference to R v Nur, 2013 ONCA 677 at para 77 [Nur]:
If a minimum penalty fails either the particularized or reasonable hypothetical component of the gross disproportionality inquiry, the provision, assuming it cannot be “saved” by s. 1 of the Charter, will be found to violate s. 12. After some doubt, it is now established that if a mandatory minimum sentence violates s. 12, the remedy lies under s. 52 of the Constitution Act, 1982. The offending provision to the extent that it is inconsistent with s. 12 will be of “no force or effect” and will be struck down. A more narrow case-specific remedy in the form of a constitutional exemption applicable to the individual accused is not an available remedy.
The lower court judge was persuaded that a more narrow case specific remedy, such as a constitutional exemption, was not applicable after a finding that the law in question is of no force or effect; and therefore, the law shall be struck down. The Court of Appeal disagreed with this interpretation of the decision in Nur, finding that the quote did not give license for a provincial court judge to issue a declaration.
Counsel for Mr. Lloyd also cited R v Big M Drug Mart,  1 SCR 295 at 315-316 to defend their assertion that a provincial court has the jurisdiction to grant a declaration:
[T]he Crown argues that Big M should not have been able to bring a s. 52 application in a provincial court because it does not have prerogative powers. Even under the Crown’s interpretation of “court of competent jurisdiction” the majority of the Alberta Court of Appeal held that the Provincial Court has independent jurisdiction, aside from the Charter in the case at bar.
The appellant overlooks the fact that it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.
From this quote, it seems clear that the Supreme Court of Canada (“SCC”) has found it it appropriate for a provincial court to grant declaratory relief in criminal cases. Nevertheless, Groberman J.A. for the Court of Appeal determined that there was a difference between “declaring” legislation invalid and “a formal power to issue a declaratory judgment” (Lloyd, para 33). Support for this position was found in another BC Court of Appeal judgment, Shewchuk v Ricard, , 28 DLR (4th) 429, where the Court explained that a “declaration” can be used both in a “strict” and an “extended” sense:
…it is equally clear that if a person is before a court upon a charge, complaint, or other proceeding properly within the jurisdiction of that court then the court is competent to decide that the law upon which the charge, complaint or proceeding is based is of no force and effect by reason of the provisions of the Canadian Charter of Rights and Freedoms, and to dismiss the charge, complaint or proceeding. The making of a declaration that the law in question is of no force and effect, in that context, is nothing more than a decision of a legal question properly before the court. It does not trench upon the exclusive right of the superior courts to grant prerogative relief including general declarations.
The BC Court of Appeal interpreted this to mean that a law can be found to be of no force or effect and a provincial court may dismiss the individual charge but cannot make a general declaration as such. The Court found further support for this principle in Kent Roach’s Constitutional Remedies in Canada (2nd ed.) (looseleaf) Toronto: Canada Law Book/Thomson Reuters, 2013, 6.460, 6-25. Here it cited the following passage in support of the principle that provincial criminal courts may determine whether an offence violates the Constitution, but not make a formal declaration:
A provincial criminal court has jurisdiction under s. 52 of the Constitution Act, 1982 to determine whether the offence charged violates the Constitution. … This does not, however, mean that provincial courts can make a formal declaration that a law is of no force or effect, this being within the inherent powers of provincial superior courts.
Groberman J.A. then turned to the question of standing for Mr. Lloyd to challenge the constitutionality of the law. He found that Mr. Lloyd did have standing to challenge the validity of s. 5(3)(a)(i)(D) of the CDSA, however the Court was not required to rule on the issue unless the section would impact on the sentence for Mr. Lloyd. Mr. Lloyd was not affected by the impugned legislation, given that he would have received more than the minimum sentence anyway.
Counsel for Mr. Lloyd argued that even if the provision would not impact the individual sentence given to their client, the Court should still consider the constitutionality of the law, as others who may be impacted by the minimum sentence provision may not be able to bring a constitutional challenge to the legislation. Groberman J.A. was not persuaded by Counsel’s argument, perhaps because of his focus on the declaration issue.
Counsel for Mr. Lloyd also argued that minimum sentences create an “inflationary floor” that affect the sentences not only of those that would have received less than one year, but also those who would have received higher sentences. Groberman J.A. did not appear to disagree, as he noted that there will be a “ripple effect” with minimum sentence provisions, in that not only people at the lowest end of the spectrum of sentencing will be affected.
In light of the “ripple effect” arising out of minimum sentences, the ambiguity around powers to make declarations, and the general controversy over minimum sentences, it is not surprising that the Supreme Court has granted leave to appeal in this case. Many organizations with an interest in advancing social justice and fundamental rights and freedoms have been granted intervenor status by the SCC, including Pivot Legal Society, BC Civil Liberties Association, the Canadian Association of People Who Use Drugs, and West Coast Women’s Legal Education and Action Fund, among others. Given the recent change in Federal Government, it is unsurprising to see the ideologically driven “tough on crime” approach to criminal justice of the Conservative Government in question. It should be interesting to watch for the Liberal Government’s position on this case going forward, and of course, whether the SCC will find the CDSA’s minimum sentence provision unconstitutional.