R. v. Lloyd

R. v. Lloyd
Collection
Supreme Court Judgments
Date
2016-04-15
Neutral citation
2016 SCC 13
Report
[2016] 1 SCR 130
Case number
35982
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 35982
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130
Appeal heard: January 13, 2016 Judgment rendered: April 15, 2016 Docket: 35982
Between:
Joseph Ryan Lloyd
Appellant
and
Her Majesty The Queen
Respondent
- and -
Canadian Bar Association, African Canadian Legal Clinic,
Pivot Legal Society, Union of British Columbia Indian Chiefs,
HIV & AIDS Legal Clinic Ontario, Canadian HIV/AIDS Legal Network,
British Columbia Centre for Excellence in HIV/AIDS,
Prisoners with HIV/AIDS Support Action Network,
Canadian Association of People Who Use Drugs,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association (Ontario) and
West Coast Women’s Legal Education and Action Fund
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment: (paras. 1 to 56)
Joint Reasons Dissenting in Part: (paras. 57 to 110)
McLachlin C.J. (Abella, Cromwell, Moldaver, Karakatsanis and Côté JJ. concurring)
Wagner, Gascon and Brown JJ.
R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130
Joseph Ryan Lloyd Appellant
v.
Her Majesty The Queen Respondent
and
Canadian Bar Association,
African Canadian Legal Clinic,
Pivot Legal Society,
Union of British Columbia Indian Chiefs,
HIV & AIDS Legal Clinic Ontario,
Canadian HIV/AIDS Legal Network,
British Columbia Centre for Excellence in HIV/AIDS,
Prisoners with HIV/AIDS Support Action Network,
Canadian Association of People Who Use Drugs,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association (Ontario) and
West Coast Women’s Legal Education and Action Fund Interveners
Indexed as: R. v. Lloyd
2016 SCC 13
File No.: 35982.
2016: January 13; 2016: April 15.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Sentencing — Mandatory minimum sentence — Controlled substances offence — Accused convicted of possessing controlled substances for purpose of trafficking and sentenced to one year of imprisonment — Whether one‑year mandatory minimum imprisonment term pursuant to s. 5(3)(a)(i)(D) of Controlled Drugs and Substances Act results in cruel and unusual punishment and therefore infringes s. 12 of Canadian Charter of Rights and Freedoms — If so, whether infringement justifiable under s. 1 of Charter — Whether Court of Appeal erred in increasing sentence to 18 months — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(3) (a)(i)(D).
Constitutional law — Charter of Rights — Fundamental justice — Sentencing — Whether proportionality in sentencing process a principle of fundamental justice under s. 7 of Canadian Charter of Rights and Freedoms — If so, whether one‑year mandatory minimum sentence pursuant to s. 5(3)(a)(i)(D) of Controlled Drugs and Substances Act infringes s. 7 of Charter .
Constitutional law — Charter of Rights — Courts — Jurisdiction — Provincial court judge deciding mandatory minimum sentencing provision unconstitutional — Whether provincial court has power to determine constitutionality.
L was convicted of possession of drugs for the purpose of trafficking. Because he had a recent prior conviction for a similar offence, he was subject to a mandatory minimum sentence of one year of imprisonment, pursuant to s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act (“CDSA ”). Section 5(3)(a)(i)(D) provides a minimum sentence of one year of imprisonment for trafficking or possession for the purpose of trafficking in a Schedule I or II drug, where the offender has been convicted of any drug offence (except possession) within the previous 10 years. The provincial court judge declared the provision contrary to s. 12 of the Charter and not justified under s. 1 . The Court of Appeal allowed the Crown’s appeal, set aside the declaration of unconstitutionality and increased the sentence to 18 months.
Held (Wagner, Gascon and Brown JJ. dissenting in part): The appeal should be allowed.
Per McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis and Côté JJ.: The provincial court judge in this case had the power to decide the constitutionality of s. 5(3)(a)(i)(D) of the CDSA . While provincial court judges do not have the power to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982 , they do have the power to determine the constitutionality of mandatory minimum provisions when the issue arises in a case they are hearing. L challenged the mandatory minimum sentence of one year of imprisonment that applied to him. He was entitled to do so. The provincial court judge, in turn, was entitled to consider the constitutionality of that provision. He ultimately concluded that the mandatory minimum sentence was not grossly disproportionate as to L. The fact that the judge used the word “declare” does not convert his conclusion to a formal declaration that the provision is of no force or effect.
While L conceded that a one‑year sentence of imprisonment would not be grossly disproportionate as applied to him, it could in other reasonably foreseeable cases. That was the problem in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. Again, in the present case, the mandatory minimum sentence provision covers a wide range of potential conduct. As a result, it catches not only the serious drug trafficking that is its proper aim, but conduct that is much less blameworthy. This renders it constitutionally vulnerable.
At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of drugs, and who has been convicted many times for similar offences. At the other end of the range stands the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before. Most Canadians would be shocked to find that such a person could be sent to prison for one year.
Another foreseeable situation caught by the law is where a drug addict with a prior conviction for trafficking is convicted of a second offence. In both cases, he was only trafficking in order to support his own addiction. Between conviction and the sentencing he attends rehabilitation and conquers his addiction. He comes to court asking for a short sentence that will allow him to resume a healthy and productive life. Under the law, the judge has no choice but to sentence him to a year in prison. Such a sentence would also be grossly disproportionate to what is fit in the circumstances and would shock the conscience of Canadians.
Section 10(5) of the CDSA provides an exception to the minimum one‑year sentence if the offender has, prior to sentencing, successfully completed a drug treatment court program or another program approved under s. 720(2) of the Criminal Code . This exception is however too narrow to cure the constitutional infirmity. First, it is confined to particular programs, which a particular offender may or may not be able to access. Second, to be admissible to these programs, the offender must usually plead guilty and forfeit his right to a trial. One constitutional deprivation cannot cure another. Third, the requirement that the offender successfully complete the program may not be realistic for heavily addicted offenders whose conduct does not merit a year in jail. Finally, in most programs, the Crown has the discretion to disqualify an applicant.
The reality is this: mandatory minimum sentence provisions 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 constitutionally vulnerable. This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences. In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment.
Insofar as s. 5(3)(a)(i)(D) of the CDSA requires a one‑year mandatory minimum sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter . This violation is not justified under s. 1 . Parliament’s objective of combatting the distribution of illicit drugs is important. This objective is rationally connected to the imposition of a one‑year mandatory minimum sentence under s. 5(3)(a)(i)(D) of the CDSA . However, the provision does not minimally impair the s. 12 right.
Because the mandatory minimum sentence provision at issue violates s. 12 of the Charter , the question of whether it also violates s. 7 need not be addressed. In any event, the provision would not violate s. 7 of the Charter because proportionality in sentencing is not a principle of fundamental justice.
Finally, the provincial court judge’s determination of the appropriate sentence is entitled to deference. The Court of Appeal in this case took the view that the provincial court judge applied the wrong sentencing range. A careful reading of the reasons of the provincial court judge does not bear this out. The provincial court judge noted that sentences of three to four months had been upheld in a few exceptional cases, but went on to identify the appropriate sentencing range as 12 to 18 months. Applying a number of mitigating factors, he sentenced L to 12 months. In any event, even if the provincial court judge had erred in stating the range, the Court of Appeal would not have been entitled to intervene. It did not establish that a 12‑month sentence in this case was demonstrably unfit.
Per Wagner, Gascon and Brown JJ. (dissenting in part): The one‑year mandatory minimum sentence in s. 5(3)(a)(i)(D) of the CDSA does not infringe s. 12 of the Charter . Given the extremely high threshold that must be met before a s. 12 infringement will be found, the Court has struck down mandatory minimums under s. 12 only in very rare cases. It has done so only twice since the Charter ’s enactment, in R. v. Smith, [1987] 1 S.C.R. 1045, and more recently in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. This is simply not one of those rare cases. The majority’s reasons would represent a departure from the Court’s jurisprudence, which has consistently maintained that mandatory minimums are not per se unconstitutional.
Unlike in either Smith or Nur, the mandatory minimum here is limited. It applies only to trafficking offences (not when the drugs are for personal use). It applies only to specific narcotics (Schedule I and II drugs) in specific quantities (of certain Schedule II drugs). And it applies only to certain repeat offenders. Thus, the minimum here does not cover a wide range of conduct. It is, rather, carefully tailored to catch only harmful and blameworthy conduct. The gross disproportionality test that has developed under s. 12 of the Charter is a difficult standard to meet. And it is not met in either of the sharing or rehabilitation scenarios described by the majority.
The sharing scenario described could fall outside the offence of trafficking and instead constitute mere joint possession. If the conduct would not result in a conviction for the offence at issue, then the hypothetical is not reasonable and should not be considered. The analysis must focus on the effect of the sentence once a conviction has properly been secured, rather than the effect of the sentence where the innocence of the accused remains debatable.
Assuming that sharing could ground a conviction for trafficking, however, this hypothetical scenario remains unfit for consideration under s. 12. In this hypothetical, the offender is convicted of trafficking for sharing drugs not once, but twice. Since there appear to be very few reported cases where offenders have been convicted of trafficking for sharing drugs, a scenario involving a two‑time sharing trafficker with no other conviction appears far‑fetched or marginally imaginable, and thus inappropriate for the s. 12 analysis. In any event, the blameworthiness of a repeat offender must be higher than that of a first‑time offender.
Even if the sharing scenario were accepted as a reasonable hypothetical, the mandatory minimum would not impose grossly disproportionate punishment. While the sharing trafficker may be somewhat less morally blameworthy than the cold‑blooded trafficker of hard drugs for profit, she is not so much less morally blameworthy that a one‑year sentence would outrage standards of decency. Whether the offender traffics by sharing, to support her own addiction or purely for profit, she facilitates the distribution of dangerous substances into the community. The harm to the community — in the form of overdose, addiction and the crime that sometimes comes with supporting addiction — remains the same regardless of the offender’s motives.
As for the rehabilitation scenario, the application of the mandatory minimum there is not a grossly disproportionate punishment, for two reasons. First, the mandatory minimum may not even apply. If the offender attends and successfully completes an approved treatment program between conviction and sentencing, s. 10(5) of the CDSA would apply and the sentencing judge would not be required to impose the mandatory minimum sentence at all. Second, even if the minimum does apply, the scenario is remarkably similar to the circumstances of L himself, for whom the majority agrees that the one‑year sentence is not cruel and unusual.
Thus, given the seriousness of the offence of drug trafficking and the deference owed to Parliament in setting mandatory minimum policies, this well‑tailored one‑year mandatory minimum does not impose grossly disproportionate punishment in either scenario. The mandatory minimum is therefore constitutional.
As the majority suggests, Parliament may wish to consider providing judges some discretion to avoid applying mandatory minimums in appropriate cases. But Parliament is not obliged to create exemptions to mandatory minimums as a matter of constitutional law. Parliament may legislate to limit judges’ sentencing discretion. Limiting judicial discretion is one of the key purposes of mandatory minimum sentences, and this purpose may be inconsistent with providing judges a safety valve to avoid the application of the mandatory minimum in some cases. Whether Parliament should enact judicial safety valves to mandatory minimum sentences and if so, what form they should take, are questions of policy that are within the exclusive domain of Parliament. The only limits on Parliament’s discretion are provided by the Constitution and in particular, the Charter right not to be subjected to cruel and unusual punishment. Section 5(3)(a)(i)(D) of the CDSA does not exceed this limit and does not amount to cruel and unusual punishment.
There is agreement with the majority’s analysis on the jurisdiction of provincial court judges and on s. 7 of the Charter , as well as the majority’s decision to restore the 12‑month sentence.
Cases Cited
By McLachlin C.J.
Applied: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; referred to: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Re Shewchuk and Ricard (1986), 28 D.L.R. (4th) 429; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Lyons, [1987] 2 S.C.R. 309; Miller v. The Queen, [1977] 2 S.C.R. 680; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Greyeyes, [1997] 2 S.C.R. 825; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Guiller (1985), 48 C.R. (3d) 226; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
By Wagner, Gascon and Brown JJ. (dissenting in part)
R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Guiller (1985), 48 C.R. (3d) 226; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Tabujara, 2010 BCSC 1568; R. v. Yonis, 2011 ABPC 20; R. v. Johnson, 2011 ONCJ 77, 227 C.R.R. (2d) 41; R. v. Young, 2010 NWTSC 18; R. v. Desmond, 2010 BCPC 127; R. v. Bryan, 2010 NWTSC 41; R. v. Otchere‑Badu, 2010 ONSC 5271; R. v. Meunier, 2011 QCCQ 1588; R. v. Tracey, 2008 CanLII 68168; R. v. Draskoczi, 2008 NWTTC 12; R. v. Kotsabasakis, 2008 NBQB 266, 334 N.B.R. (2d) 396; R. v. Rainville, 2010 ABCA 288, 490 A.R. 150; R. v. Delorme, 2010 NWTSC 42; R. v. Scheer (1932), 26 Alta. L.R. 489; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Miller v. The Queen, [1977] 2 S.C.R. 680; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Gardiner (1987), 35 C.C.C. (3d) 461; R. v. Weiler (1975), 23 C.C.C. (2d) 556; R. v. O’Connor, 1975 CarswellBC 842 (WL Can.); R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.
Statutes and Regulations Cited
18 U.S.C. § 3553(f) (2012).
Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 9 , 12 , 24(1) .
Constitution Act, 1982 , s. 52(1) .
Controlled Drugs and Substances Act , S.C. 1996, c. 19, ss. 2(1) “designated substance offence”, “traffic”, Part I, 4 to 10, 5(1), (2), (3)(a), (a.1), 10(4), (5), Schs. I, II, VII.
Criminal Code, R.S.C. 1970, c. C‑34, s. 214(5)(e).
Criminal Code , R.S.C. 1985, c. C‑46, ss. 231(5) (e), 718.1 , 718.2 (e), 720(2) .
Criminal Law Amendment Act, 1997 (S. Afr.), No. 105 of 1997, s. 51(3)(a).
Criminal Law (Sentencing) Act 1988 (S.A.), s. 17.
Firearms Act 1968 (U.K.), 1968, c. 27, s. 51A(2).
Penal Code [Brottsbalken] (Swed.), c. 29, s. 5.
Powers of Criminal Courts (Sentencing) Act 2000 (U.K.), 2000, c. 6, ss. 109(3), 110(2), 111(2).
Safe Streets and Communities Act, S.C. 2012, c. 1, s. 39(1).
Sentencing Act (N.T.), s. 78DI.
Sentencing Act 1991 (Vic.), s. 10(1).
Sentencing Act 2002 (N.Z.), ss. 86E, 102, 103.
Violent Crime Reduction Act 2006 (U.K.), 2006, c. 38, s. 29(4).
Authors Cited
Canada. Department of Justice. Research and Statistics Division. Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models, report by Julian V. Roberts with the assistance of Rafal Morek and Mihael Cole, November 2005 (online: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr05_10/index.html).
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Carswell, 2007 (updated 2015, release 1).
Roach, Kent. Constitutional Remedies in Canada, 2nd ed. Toronto: Canada Law Book, 2015 (loose‑leaf updated December 2015, release 26).
Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012.
APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Kirkpatrick and Groberman JJ.A.), 2014 BCCA 224, 356 B.C.A.C. 275, 610 W.A.C. 275, 12 C.R. (7th) 190, 312 C.R.R. (2d) 66, [2014] B.C.J. No. 1212 (QL), 2014 CarswellBC 1688 (WL Can.), setting aside two decisions of Galati Prov. Ct. J., 2014 BCPC 11, [2014] B.C.J. No. 145 (QL), 2014 CarswellBC 423 (WL Can.), and 2014 BCPC 8, [2014] B.C.J. No. 274 (QL), 2014 CarswellBC 358 (WL Can.). Appeal allowed, Wagner, Gascon and Brown JJ. dissenting in part.
David N. Fai and Jeffrey W. Beedell, for the appellant.
W. Paul Riley, Q.C., and Todd C. Gerhart, for the respondent.
Eric V. Gottardi and Mila Shah, for the intervener the Canadian Bar Association.
Faisal Mirza and Roger A. Love, for the intervener the African Canadian Legal Clinic.
Maia Tsurumi and Adrienne Smith, for the interveners the Pivot Legal Society and the Union of British Columbia Indian Chiefs.
Khalid Janmohamed and Ryan Peck, for the interveners the HIV & AIDS Legal Clinic Ontario, the Canadian HIV/AIDS Legal Network, the British Columbia Centre for Excellence in HIV/AIDS, the Prisoners with HIV/AIDS Support Action Network and the Canadian Association of People Who Use Drugs.
Matthew A. Nathanson, for the intervener the British Columbia Civil Liberties Association.
Dirk Derstine and Janani Shanmuganathan, for the intervener the Criminal Lawyers’ Association (Ontario).
Kasandra Cronin and Kendra Milne, for the intervener the West Coast Women’s Legal Education and Action Fund.
The judgment of McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis and Côté JJ. was delivered by
The Chief Justice —
I. Introduction
[1] Parliament has the power to proscribe conduct as criminal and determine the punishment for it, and judges have the duty to apply the laws Parliament adopts on punishment to offenders. But individuals are also entitled to receive, and judges have a duty to impose, sentences that are constitutional having regard to the circumstances of each case that comes before them. Sometimes a judge’s duty to apply a mandatory minimum sentence provision conflicts with the judge’s duty to impose a sentence that does not violate the guarantees of the Canadian Charter of Rights and Freedoms . In this appeal, the Court is once again confronted with the problem of how the imposition of a mandatory minimum sentence can be reconciled with the imperative that no person shall be punished in a manner than infringes the Charter .
[2] We are asked to decide the constitutionality of a one-year mandatory minimum sentence for a controlled substances offence. I conclude that this provision, while permitting constitutional sentences in a broad array of cases, will sometimes mandate sentences that violate the constitutional guarantee against cruel and unusual punishment. Insofar as the law requires a one-year sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter and is not justified under s. 1.
[3] As this Court’s decision in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, illustrates, the reality is that mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence. One solution is for such laws to narrow their reach, so that they catch only conduct that merits the mandatory minimum sentence. Another option to preserve the constitutionality of offences that cast a wide net is to provide for residual judicial discretion to impose a fit and constitutional sentence in exceptional cases. This approach, widely adopted in other countries, provides a way of resolving the tension between Parliament’s right to choose the appropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment.
[4] For the reasons that follow, I conclude that, although he was not required to do so, the provincial court judge in this case had the power to consider the constitutional validity of the mandatory minimum sentence provision at issue; that he did not err in finding it unconstitutional; and that the sentence of one year he imposed on the appellant should be upheld.
II. The Challenged Law
[5] Section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“CDSA ”), provides:
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, . . .
[6] To be subject to the mandatory minimum sentence of one year of imprisonment, an offender must be convicted of trafficking, or of possession for the purpose of trafficking, of either any quantity of a Schedule I substance, such as cocaine, heroin or methamphetamine, or three kilograms or more of a Schedule II substance, namely cannabis: s. 5(3)(a) and (a.1) of the CDSA . The offender must also have been convicted within the previous 10 years of a “designated substance offence”, which is defined at s. 2(1) of the CDSA as any offence under Part I of the CDSA other than simple possession.
III. The Factual Background
[7] The appellant, Joseph Ryan Lloyd, was a drug addict and dealer in Vancouver’s Downtown Eastside. He was addicted to cocaine, methamphetamine and heroin, and sold drugs to support his addiction. He had been convicted of a number of drug-related offences.
[8] On February 8, 2013, Mr. Lloyd was convicted of possession of a Schedule I substance, methamphetamine, for the purpose of trafficking, and sentenced to jail. A month after his release, he was again arrested and charged with three counts of possession for the purpose of trafficking of a Schedule I drug, namely crack cocaine, methamphetamine, and heroin. The presiding judge, Galati Prov. Ct. J., convicted him on all three counts.
[9] At the sentencing hearing, Mr. Lloyd told the provincial court judge that he trafficked in drugs to support his drug addiction, but that he was taking steps to get help. He acknowledged that the drugs he trafficked in were dangerous and addictive, and that until recently he had given no thought to their effect on the people who purchased them. Because he had been convicted of a similar drug offence shortly before, he was subject to a mandatory minimum sentence of one year of imprisonment, pursuant to s. 5(3)(a)(i)(D) of the CDSA . Mr. Lloyd therefore asked for a declaration under s. 24(1) of the Charter that the mandatory minimum provision is unconstitutional and of no force or effect because it violates ss. 7 , 9 and 12 of the Charter .
[10] Galati Prov. Ct. J. acknowledged that lower sentences have occasionally been imposed on repeat offender, addicted traffickers: 2014 BCPC 8. In this case, however, he found — without considering the mandatory minimum provision — that the appropriate sentencing range for Mr. Lloyd’s offences was 12 to 18 months, and that the appropriate sentence for him was 12 months. He noted that, in spite of this conclusion, Mr. Lloyd had standing to challenge the constitutional validity of the mandatory minimum because of its potential inflationary effect on the appropriate sentencing range. Turning to that issue, Galati Prov. Ct. J. found that the mandatory minimum violates s. 12 of the Charter because it would impose cruel and unusual punishment in cases where, for example, an addict possesses a small amount of a Schedule I drug to share with a spouse or a friend. A one-year sentence for such an offender, he held, would be grossly disproportionate to what is justified by the legitimate penological goals and sentencing principles of the CDSA , and would be considered abhorrent or intolerable by most Canadians. Galati Prov. Ct. J. rejected the claim that the mandatory minimum sentence also violates ss. 7 and 9 of the Charter . He found that the violation of s. 12 was not justified under s. 1 of the Charter (2014 BCPC 11), and sentenced Mr. Lloyd to one year of imprisonment.
[11] The British Columbia Court of Appeal (Groberman J.A., for himself and Newbury and Kirkpatrick JJ.A.) held that judges of the Provincial Court do not have the power to make formal declarations of constitutional invalidity: 2014 BCCA 224, 356 B.C.A.C. 275. Only superior courts of inherent jurisdiction have this power. The Court of Appeal therefore set aside what it read as the provincial court judge’s declaration of unconstitutionality. It further held that while Mr. Lloyd had standing to challenge the mandatory minimum provision under which he was sentenced, the court was not obligated to consider the issue unless it would have had an impact on the sentence. Because the minimum sentence provision at issue did not result in a significant change to the low end of the sentencing range, and could not have affected Mr. Lloyd, the court declined to consider the constitutional challenge to the mandatory minimum provision.
[12] The Court of Appeal also allowed the Crown’s sentence appeal and increased Mr. Lloyd’s sentence to 18 months concurrent for the three offences. It held that a sentence at the high end of the normal range was justified because (1) Mr. Lloyd possessed three different substances for street-level distribution; (2) the substances are dangerous, highly addictive, and socially destructive; (3) he committed the offences while on probation; (4) he was carrying a knife in a sheath, contrary to the terms of his probation; (5) he had a lengthy criminal record, with 21 prior convictions; and (6) his attempts at rehabilitation were embryonic, and he showed little insight into the harm caused to others. The Court of Appeal held that the sentencing judge wrongly took three to four months as the low end of the normal range for sentences, when in fact it was one year. It increased the sentence accordingly.
IV. Analysis
[13] Three issues are raised on appeal: (1) Did the provincial court judge have the power to decide the constitutionality of the mandatory minimum sentence? (2) Is the mandatory minimum sentence law at issue unconstitutional? (3) Did the Court of Appeal err in increasing Mr. Lloyd’s sentence from 12 months to 18 months?
A. Did the Provincial Court Judge Have the Power to Decide the Constitutionality of the Mandatory Minimum Sentence?
[14] The provincial court judge, having found that the mandatory minimum sentence at issue would affect Mr. Lloyd’s sentence only if it raised the floor of the appropriate range of sentences, proceeded to consider the law’s constitutionality and “declare” it unconstitutional. The Court of Appeal set aside this declaration and declined to consider the question on the ground that the challenged law does not raise the threshold of the sentencing range and thus could not have affected Mr. Lloyd’s sentence. The Crown asks us to confirm that provincial courts cannot make declarations of constitutional invalidity and should rule on the constitutionality of a mandatory minimum sentence only if it would have an impact on the offender before them.
[15] The law on this matter is clear. Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982 ; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them. As this Court stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 316, “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.” See also Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, at pp. 14-17; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, at p. 592; Re Shewchuk and Ricard (1986), 28 D.L.R. (4th) 429 (B.C.C.A.), at pp. 439-40; K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at p. 6-25.
[16] Just as no one may be convicted of an offence under an invalid statute, so too may no one be sentenced under an invalid statute. Provincial court judges must have the power to determine the constitutional validity of mandatory minimum provisions when the issue arises in a case they are hearing. This power flows directly from their statutory power to decide the cases before them. The rule of law demands no less.
[17] In my view, the provincial court judge in this case did no more than this. Mr. Lloyd challenged the mandatory minimum that formed part of the sentencing regime that applied to him. As the Court of Appeal found, he was entitled to do so. The provincial court judge was entitled to consider the constitutionality of the mandatory minimum provision. He ultimately concluded that the mandatory minimum sentence was not grossly disproportionate as to Mr. Lloyd. The fact that he used the word “declare” does not convert his conclusion to a formal declaration that the law is of no force or effect under s. 52(1) of the Constitution Act, 1982 .
[18] To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process.
[19] The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982 . It is open to provincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own; however, the law remains in full force or effect, absent a formal declaration of invalidity by a court of inherent jurisdiction.
[20] I conclude that the provincial court judge in this case had the power to consider the constitutional validity of the challenged sentencing provision in the course of making his decision on the case before him.
B. Is the Mandatory Minimum Sentence Here Unconstitutional?
[21] Section 5(3)(a)(i)(D) of the CDSA provides a minimum sentence of one year of imprisonment for trafficking or possession for the purpose of trafficking in a Schedule I or II drug, where the offender has been convicted of any drug offence (except possession) within the previous 10 years. The law provides an exception to the minimum one-year sentence if the offender has, prior to sentencing, successfully completed a drug treatment court program or another program approved under s. 720(2) of the Criminal Code , R.S.C. 1985, c. C-46 : s. 10(5) of the CDSA . The question is whether this law violates the Charter .
(1) Does the Law Violate Section 12 of the Charter ?
[22] The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charter was recently clarified by this Court in Nur. A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77.
[23] A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code . The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriate sentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, [1987] 2 S.C.R. 309, at pp. 337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.
[24] This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.
[25] This brings us to the law challenged in this case. Mr. Lloyd concedes that the one-year minimum jail term is not a sentence that is grossly disproportionate as applied to him but only in relation to reasonably foreseeable applications of the law to others. The question before us is therefore: Could a one-year sentence of imprisonment be grossly disproportionate to the offence of possession for the purpose of trafficking a Schedule I substance in reasonably foreseeable cases?
[26] On its face, a one-year sentence for an offender with a prior conviction for a drug offence who is convicted for trafficking or possession for the purpose of trafficking in a Schedule I drug, such as cocaine, heroin or methamphetamine, may not seem excessi