R v Lloyd: Opening the Door for Reform and Challenges to Mandatory Minimums
Two recent decisions of the Supreme Court of Canada (“SCC”) were the subject of significant media attention this past spring. R v Lloyd, 2016 SCC 13 [Lloyd] and R v Safarzadeh‑Markhali, 2016 SCC 14 [Safarzadeh] involved constitutional challenges to sentencing provisions and have been framed as directly dismantling the previous federal government’s “tough on crime” agenda.
The judgments were delivered a day after the one-year anniversary of the SCC’s decision in R v Nur, 2015 SCC 15 [Nur] (see Jordan Casey’s post on theCourt.ca). Nur marked the second time in the post-Charter era that the SCC struck down a mandatory minimum sentence as unconstitutional, the first being in R v Smith,  1 SCR 1045 [Smith]. In addition to sparking debate on the appropriate formulation of the the test for “cruel and unusual punishment” in violation of section 12 of the Charter, the 6-3 decision in Nur fueled ongoing conversations about the role and appropriateness of legislated mandatory minimums in Canada.
This post will focus on the SCC’s decision in R v Lloyd, in which a 4-3 majority of the bench struck down section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act [CDSA] as violating section 12 of the Charter.
The provision challenged by Mr. Lloyd
Section 5(3)(a)(i)(D) of the CDSA set a one-year mandatory minimum for any person convicted of trafficking or of possession for the purpose of trafficking certain amounts of Schedule I, II, III or IV substances. For the mandatory minimum to apply, the offender must have been “convicted of a designated substance offence or … served a term of imprisonment for a designated substance offence within the previous 10 years.” A “designated substance offence” is defined in section 2.1 of the CDSA as any offence under Part 1 of the CDSA other than simple possession.
The law provides an exception to the mandatory minimum for offenders who successfully completed a drug treatment program approved by the court or under section 720(2) of the Criminal Code prior to sentencing.
Mr. Lloyd challenged the constitutionality of the provision under sections 7, 9, and 12 of the Charter. The Provincial Court judge found that the mandatory minimum violated section 12 of the Charter. The BC Court of Appeal held that Provincial Court judge did not have the jurisdiction to declare the provision unconstitutional, and declined to consider the constitutional challenge on the basis that it did not affect Mr. Lloyd’s sentence. A more detailed discussion of the facts and the lower court decisions can be found here.
The Nur test for a “gross disproportionate” sentence
A sentence will be deemed to be “cruel and unusual punishment” in violation of Section 12 where it is “grossly disproportionate” to “the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender” (para 22).
R v Nur set out a two step process of analysis in which the court must:
- determine what constitutes a proportionate sentence having regard to the objectives and principles of sentencing in the Criminal Code; and
- determine whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate (para 23).
The standard of grossly disproportionate is a high bar requiring the sentence to be “so excessive as to outrage standard of decency” (para 24).
A sentencing provision may be deemed unconstitutional if it imposes such a sentence on the offender before the court or has the potential to impose a grossly disproportionate sentence on others in reasonably foreseeable circumstance (para 22). Accordingly, the test enables the court to consider “reasonable hypotheticals” that may fall within the ambit of the provision.
Majority: the impugned provision casts “a wide net”
Chief Justice McLachlin delivered the majority’s judgment, holding that section 5(3)(a)(i)(D) violates Section 12 of the Charter. The majority argued that the impugned provision casts a wide net that not only captures serious drug trafficking offenders, but also conduct that is less blameworthy. The majority articulated three characteristics of the law that contribute to its wide net:
- it applies to any amount of Schedule I substances, thereby capturing professional drug dealers possessing large quantities to drug addicts with small quantities alike;
- the statutory definition of trafficking captures a broad range of conduct; and
- the range of offences that constitute the requisite prior convictions is similarly broad.
The broad reach of the provision was highlighted with two reasonable hypotheticals that the majority argued met the high bar of “gross disproportionality”:
- the drug addict charged for sharing a small amount of Schedule I drugs with a friend who is sentenced to the mandatory minimum because of a prior conviction for sharing marijuana socially 9 years before;
- a drug addict with a prior conviction for trafficking is convicted of a second offence for supporting their own addiction on whom the mandatory minimum is imposed even though they go to rehabilitation between conviction and sentencing.
The majority noted that the legislated exception for offenders who complete a rehabilitation program prior to sentencing is a step in the right direction, however the design of the exception limits its applicability. The majority observed that the exception is limited to select programs that are not widely available and may not be appropriate for all offenders. Further, in order to participate in such programs, the offender may be required to plead guilty and forgo a trial. Finally, admission to many of the programs is subject to the Crown’s discretion.
Dissent: the impugned provision is “narrow” and “carefully tailored”
In addition to challenging the reasonable hypotheticals posed by the majority, the dissent argued that the majority’s opinion presents a significant departure from SCC jurisprudence on mandatory minimum sentences. Writing for the dissent, Justice Wagner emphasized that the SCC has rarely struck down mandatory minimums. Wagner provided an account of past cases, including the two post-Charter cases, in which infringement was established—Nur and Smith.
The dissent argued that the impugned provision is not analogous to those at issue in Nur and Smith, characterizing section 5(3)(a)(i)(D) as “carefully tailored” (para 85). The dissent contended that the provision represents a codification of the established bottom sentencing range for trafficking Schedule I substances and the existing sentencing practice of treating prior convictions “as an aggravating factor in sentencing.”
Justice Wagner further argued that the impugned provision was crafted in a manner consistent with the limitations suggested by Justice Lamer in Smith, where the SCC considered the constitutionality of a seven-year mandatory minimum for importing any amount of narcotics:
The result sought [through the mandatory minimum] could be achieved by limiting the imposition of a minimum sentence to the importing of certain quantifies, to certain specific narcotics of the schedule, to repeat offender, or even to a combination of these factors (pp 1080-81, Smith cited in para 83, Lloyd).
The dissent emphasized that drug trafficking is an inherently blameworthy offence. Unlike the reasonable hypothetical of a mere licensing infraction contemplated in Nur, a conviction for trafficking requires an intent to traffic and a knowledge of the substance being trafficked.
The attainability of a “carefully tailored” mandatory minimum
What is striking in the judgment as a whole is that the features the dissent relied on to characterize the provision as “narrow” (para 79) and “carefully tailored to catch only harmful and highly blameworthy conduct” (para 85) are similarly relied upon by the majority to demonstrate impermissible broadness that “casts its net over a wide range of potential conduct” (para 27). This discrepancy highlights the challenge of drafting mandatory minimums that pass constitutional muster.
The dissent argued that when crafting mandatory minimums, “Parliament is not obliged to perfectly accommodate ‘the moral nuances of every crime and every offender’” (para 87). However, this argument is what the reasonable hypothetical as a built-in component of the Section 12 test requires. The reasonable hypothetical takes a proactive view of the role of the Charter in sentencing and criminal law. In doing so, it lends itself to challenging laws on the very basis of nuances in circumstances and offenders.
The construction of the impugned provision highlights the complexities that surround mandatory minimums. Section 5(3)(a)(i)(D) on its face seems to capture undesirable conduct while providing precision in the types of conduct and offenders captured. Similarly, the legislated exception appears to align with societal goals of rehabilitation. Nevertheless, as the majority’s reasonable hypotheticals highlight, precision does not equate to accuracy and it is to both of these metrics that proportionate sentencing aspires.
The majority’s judgment suggests that there is no formula which may safeguard a mandatory minimum from challenge; rather, mandatory minimums by their nature may inherently carry with them a vulnerability to constitutional challenge—a challenge that the majority’s judgment empowers Canadian courts to meet.
Opening the door to challenging and reforming mandatory minimums in Canada
The SCC in Nur and Smith held that mandatory minimums are not per se unconstitutional. While the Chief Justice’s obiter remarks in Lloyd do not directly challenge this notion, they do provide an invitation for Parliament, the judiciary, and Canadians to consider a careful re-evaluation of the mandatory minimums on the books. This is particularly evident in paragraphs 3 and 35 of the majority’s judgement:
[M]andatory minimum sentences … [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. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional.
These remarks and others throughout the judgment provide a powerful anchor for future challenges to mandatory minimums.
The Chief Justice’s judgment for the majority raised two main suggestions for Parliament to consider in drafting mandatory minimum sentencing provisions that appropriately balance public safety priorities with Charter rights. First, the majority suggested that Parliament narrow the reach of offences to catch only those offenders “that merit the mandatory minimum sentences.” As discussed above, such a suggestion may be easier made than operationalized. Second, the majority argued for embedding a “safety valve” that would enable judges to carve out an exception to applying a mandatory minimum in cases where its application would constitute cruel and unusual punishment. This approach has been taken in countries including the UK, South Africa, and Australia, and can be implemented in a variety of forms to meet national penal objectives.
Much as has been written on the implications of restraining judicial discretion in sentencing on offender rights and public perceptions of the justice system. The judgments rendered in Nur and Lloyd signal the position of the Court in this respect. The majority’s recommendations for reform are timely and contribute positively to a necessary dialogue between the courts and the legislature on mandatory minimums and sentencing provisions in Canada.