Home / Supreme Court strikes down key aspects of previous government's criminal law changes as unconstitutional

Supreme Court strikes down key aspects of previous government’s criminal law changes as unconstitutional

VANCOUVER, BC (April 15, 2016) – This morning the BC Civil Liberties Association reacted to two Supreme Court of Canada decisions striking down aspects of the last governments criminal law changes as unconstitutional. The cases dealt with mandatory minimum sentencing for drug offences, and limits imposed on the ability of judges to give sentencing credit for time served prior to conviction.

The BCCLA was an intervener in both cases and made submissions to the Court arguing the reforms violate Charter protections against cruel and unusual punishment.

Laura Track, staff lawyer for the BCCLA, reacted:

“Today the Supreme Court of Canada has, in no uncertain terms, affirmed the constitutional rights of people charged with criminal offences. In Lloyd, the Court struck down a one year mandatory minimum for drug offences as cruel and unusual punishment contrary to the Charter; in Safarzadeh-Markhali the Court ruled that Parliament’s attempts to limit judges’ ability to award credit for time served in jail prior to sentencing is also unconstitutional. We say good riddance to these relics of the previous government’s “tough on crime” agenda.

Mandatory minimum sentences are ineffective, costly and unjust. They disproportionately affect individuals from vulnerable and marginalized communities, such as people with addiction issues, mental illness, and Indigenous offenders. They serve to perpetuate systemic discrimination in our justice system and are inconsistent with the goals of reconciliation set out in the Truth and Reconciliation Report.

Judges must be able to weigh all of the evidence and decide on a fair sentence that fits the crime. Mandatory minimums take away judges’ ability to do that. We’re pleased to see the Court strike down the sentencing provisions at issue in these cases today. The new government has indicated a desire to repeal additional mandatory minimums; the Court has given a clear indication that they should do so, and quickly, before further harm is caused and additional court challenges are necessary.”


In the first case, R. v. Lloyd, the issue was whether the mandatory minimum sentence of one year’s imprisonment for a drug offense violates the Charter.

The minimum sentence mandated in this case was imposed by the Safe Streets and Communities Act – also known as Bill C-10 and the “Omnibus Crime Bill.” The Safe Streets and Communities Act, a “tough on crime” law enacted in 2012, made sweeping changes to the criminal law, including requiring for the first time mandatory minimum sentences for non-violent drug offenders through amendments to the Controlled Drugs and Substances Act.

The BCCLA argued that the Court should look at the reasonably foreseeable and broad, practical effects of the one year mandatory minimum sentence on individual rights, in particular the rights of the most marginalized and vulnerable offenders, such as low-income drug users and the drug-addicted. The BCCLA also argued that the Court should consider how the law negatively impacts the rights of non-citizens, such as permanent residents.

At issue in the second case, R. v. Safarzadeh-Markhali, was whether individuals who have been denied bail as a result of prior convictions should be able to receive credit for time they served prior to sentencing. In the normal course, a person denied bail may receive up to 1.5 days of credit for each day spent in pre-sentence custody. The reasons for this practice reflect the often harsh conditions in pre-sentence custody and the lack of access to rehabilitative and other programming. However, following amendments made by the Truth in Sentencing Act, 2009, a person denied bail primarily because of a previous conviction is ineligible for enhanced credit, and credit for pre-sentence custody is limited to 1:1.

The BCCLA intervened to argue that denying offenders enhanced credit for time served in pre-sentence custody can result in grossly disproportionate sentences that violate the Charter and amount to cruel and unusual punishment.

The BCCLA was represented by Matthew Nathanson of MN Law in R. v. Lloyd.

The BCCLA was represented by Nader Hasan and Gerald Chan of Stockwoods LLP in R. v. Safarzadeh-Markhali.

Read our full report on the costs of mandatory minimum sentencing “More Than We Can Afford”.