This case is on appeal from a decision of Judge Galati of the BC Provincial Court. Mr. Lloyd was convicted of three counts of possession for the purposes of trafficking under section 5(2) of the Controlled Drugs and Substances Act. As Mr. Lloyd had a previous conviction for a designated drug offence, he was subject to a mandatory minimum sentence of one year under section 5(3)(a)(i)(D). Mr. Lloyd challenged the mandatory minimum sentence provision, arguing that it violated sections 7, 9 and 12 of the Charter.
Provincial Court Judge Galati found the mandatory minimum violated section 12’s protection from cruel and unusual punishment. While a one-year sentence would not be cruel and unusual in Mr. Lloyd’s case, it would be so in the case of a reasonable hypothetical offender, such as a drug-addicted individual in possession of a small amount of a drug which was shared, or intended to be shared, with a spouse or friend. Judge Galati observed that this is a situation that occurs daily on the downtown eastside of Vancouver. Judge Galati declared the minimum sentence provision of “no force and effect” under s. 52 of the Charter. Mr. Lloyd was sentenced to a one-year sentence of imprisonment.
The BCCLA was granted leave to intervene in an appeal to the BC Court of Appeal. The BCCLA’s submissions focused on reasonable hypothetical offenders who may be caught by the mandatory minimum sentence and for whom a minimum one-year sentence would be grossly disproportionate. The Association argued that, while mandatory minimum sentences are not unconstitutional per se, they must be carefully scrutinized to ensure that they do not unfairly trench on individual rights and freedoms. The Association also argued that mandatory minimums for drug offences virtually ensure the cycle of addition and recidivism will remain unbroken.
The Court of Appeal delivered oral reasons for judgment on June 6, 2014. The Court allowed the government’s appeal of the sentence and substituted an 18 month sentence of imprisonment for Mr. Lloyd. The Court first found that Judge Galati exceeded his jurisdiction by making a formal declaration of invalidity. The Court went on to hold that, as in this case, where the mandatory minimum sentence is not dramatically different from the appropriate sentencing range absent a minimum, the sentence will not necessarily have an inflationary effect. The Court found that there was no inflationary effect from the one-year mandatory minimum sentence in this case. Here, the appropriate sentence for Mr. Lloyd would be in the 12 to 18 month range. The Court declined to rule on the constitutionality of the minimum sentencing provision, as it would have no impact on the appropriate sentence for Mr. Lloyd.
The judgment of the BC Court of Appeal can be found here >>
Mr. Lloyd appealed to the Supreme Court of Canada. The BCCLA again intervened in the case. At the Supreme Court, the Association urged the Court to look at the reasonably foreseeable and broad, practical effects of the one year mandatory minimum sentence on individual rights and civil liberties. Because of recent changes to immigration law, for permanent residents and foreign nationals (not designated as refugees), a one year jail sentence will effectively result in deportation from Canada, without a right of appeal. The BCCLA argued that this is an important consideration when assessing whether the mandatory minimum sentence in some cases constitutes cruel and unusual punishment contrary to s.12 of the Charter.
The Supreme Court issued its decision on April 15, 2016. In a 6:3 decision, the Supreme Court overturned the Court of Appeal’s ruling and struck down the mandatory minimum. The majority held that while the mandatory minimum did not constitute cruel and unusual punishment in Mr. Lloyd’s particular case, it would in reasonably foreseeable circumstances. This is so because it applies to a wide range of situations, including those involving drug addicted individuals selling small amounts of drugs to support their addiction.
The Court indicated that other mandatory minimum sentences still on the books may also amount to cruel and unusual punishment in violation of the Charter, stating: “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.” To pass constitutional muster, mandatory minimums must be carefully tailored to catch only offenders for whom the minimum is justified, or must include a safety valve that would allow judges to use their discretion to exempt those for whom the mandatory minimum would constitute cruel and unusual punishment.
The BCCLA is represented by Matthew Nathanson of MN Law.