R. v. Lloyd (J.R.), (2016) 482 N.R. 35 (SCC)

• Judge: McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 15, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 482 N.R. 35 (SCC);2016 SCC 13

R. v. Lloyd (J.R.) (2016), 482 N.R. 35 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.R. TBEd. AP.017

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)

(35982; 2016 SCC 13; 2016 CSC 13)

Indexed As: R. v. Lloyd (J.R.)

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

April 15, 2016.

Summary:

The 25 year old accused was convicted of three counts of possession of drugs for the purpose of trafficking (crack cocaine, methamphetamine and heroin). Since he had a prior conviction for a similar offence, s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act provided for a minimum sentence of one year's imprisonment. At trial, the accused argued that the mandatory minimum sentence constituted "cruel and unusual punishment" contrary to s. 12 of the Charter.

The British Columbia Provincial Court declared the mandatory minimum sentence to be of no force and effect as it violated s. 12, then sentenced the accused to one year's imprisonment. The Crown sought leave to appeal, arguing that the court erred in finding the mandatory minimum sentence unconstitutional and in granting a declaration, and on the ground that a one year sentence was unfit.

The British Columbia Court of Appeal, in a judgment reported (2014), 356 B.C.A.C. 275; 610 W.A.C. 275, granted leave to appeal and allowed the appeal. First, since the challenged provision had no impact on the accused's sentence, it was unnecessary and unwise to rule on the constitutionality issue. Secondly, while the Provincial Court judge had jurisdiction to find the provision of no force and effect, he had no jurisdiction to make a formal declaration of invalidity. Finally, the sentence of one year's imprisonment was unfit. The court substituted a sentence of 18 months' imprisonment, less 258 days' credit for pretrial custody. The accused appealed.

The Supreme Court of Canada, Wagner, Gascon and Brown, JJ., dissenting, allowed the appeal. The mandatory minimum one year sentence constituted cruel and unusual punishment and was not saved as a reasonable limit prescribed by law under s. 1. As the 12 month sentence imposed by the trial judge was not shown to be demonstrably unfit, the Court of Appeal erred in substituting a sentence of 18 months' imprisonment. The court restored the one year sentence.

Civil Rights - Topic 646.7

Liberty - Limitations on - Mandatory minimum sentences - Section 7 of the Charter provided that no person was to be deprived of liberty except in accordance with the principles of fundamental justice - An accused argued that a mandatory minimum sentence precluded the sentencing judge from imposing a sentence with regard to all of the relevant factors and that the principle of proportionality in sentencing was a principle of fundamental justice - The Supreme Court of Canada found it unnecessary to decide the issue (the challenged mandatory minimum sentence was found to violate s. 12 of the Charter) - However, the court opined that "I conclude that proportionality is not a principle of fundamental justice, and that the challenged mandatory minimum does not violate s. 7 of the Charter" - See paragraphs 38 to 47.

Civil Rights - Topic 681

Liberty - Principles of fundamental justice - General - [See Civil Rights - Topic 646.7 ].

Civil Rights - Topic 3829

Cruel and unusual treatment or punishment - What constitutes - Mandatory minimum and consecutive sentences - The 25 year old accused was convicted of three counts of possession of drugs for the purpose of trafficking (crack cocaine, methamphetamine and heroin) - Section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act provided for a mandatory minimum sentence of one year's imprisonment where the accused had been convicted of any drug offence within the previous 10 years - The three offences were committed only one month after the accused was released after serving his sentence for a prior trafficking conviction - The Supreme Court of Canada held that the mandatory minimum sentence caught not only those for whom a one year sentence would not be "grossly disproportionate", but also "someone who gives a small amount of a drug [including marijuana] to a friend, or someone who is only trafficking to support his own habit." - The court held that most Canadians would be shocked where someone sharing a small amount of marijuana was sentenced to jail time because he or she shared a small of marijuana with a spouse or friend at a social occasion nine years' earlier - The court held that since there were foreseeable situations where imposing the mandatory minimum sentence would result in a "grossly disproportionate" sentence, s. 5(3)(a)(i)(D) violated s. 12 of the Charter - Section 5(3)(a)(i)(D) was not saved as a reasonable limit prescribed by law under s. 1, as it failed the minimal impairment test - See paragraphs 25 to 37, 48 to 50.

Civil Rights - Topic 3829

Cruel and unusual treatment or punishment - What constitutes - Mandatory minimum and consecutive sentences - The 25 year old accused was convicted of three counts of possession of drugs for the purpose of trafficking (crack cocaine, methamphetamine and heroin) - Section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act provided for a mandatory minimum sentence of one year's imprisonment where the accused had been convicted of any drug offence within the previous 10 years - The Supreme Court of Canada held that s. 5(3)(a)(i)(D) would constitute cruel and unusual punishment under s. 12 of the Charter "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. ... 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. ... A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps ... 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 ... 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. This Court has established a high bar for finding that a sentence represents 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 and intolerable' to society ... 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." - See paragraphs 21 to 24.

Civil Rights - Topic 3829

Cruel and unusual treatment or punishment - What constitutes - Mandatory minimum and consecutive sentences - The Supreme Court of Canada stated 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." - See paragraph 3.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 646.7 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See first Criminal Law - Topic 3829 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - The Supreme Court of Canada stated that "Provincial court judges are not empowered to make formal declarations that a law is of no force and 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. ... 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. ... 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. ... 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. ... 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 and effect, absent a formal declaration of invalidity by a court of inherent jurisdiction." - See paragraphs 15, 16, 18, 19.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The 25 year old accused drug addict was convicted of three counts of possession of drugs for the purpose of trafficking (crack cocaine, methamphetamine and heroin) - The trial judge, citing a sentencing range of 12-18 months' imprisonment, weighed the mitigating and aggravating factors and sentenced the accused to 12 months' imprisonment - The Court of Appeal substituted a sentence of 18 months' imprisonment - The Supreme Court of Canada restored the trial judge's sentence - The trial judge's sentence was entitled to deference - The Court of Appeal could not alter the sentence absent legal error or a sentence that was demonstrably unfit - The 12 month sentence was not demonstrably unfit - The Court of Appeal erred in intervening because it would have weighed the relevant factors differently - See paragraphs 51 to 55.

Cases Noticed:

R. v. Nur (H.), [2015] 1 S.C.R. 773; 469 N.R. 1; 332 O.A.C. 208; 2015 SCC 15, refd to. [para. 3].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 15].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271, refd to. [para. 15].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 15].

Shewchuk and Ricard, Re (1986), 28 D.L.R.(4th) 429 (B.C.C.A.), refd to. [para. 15].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 22].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161, refd to. [para. 23].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 2000 SCC 39, refd to. [para. 23].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 23].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386, refd to. [para. 24].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 24].

R. v. Greyeyes (E.R.), [1997] 2 S.C.R. 825; 214 N.R. 43; 152 Sask.R. 294; 140 W.A.C. 294, refd to. [para. 26].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 26].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 42].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 44].

R. v. Guiller (1985), 48 C.R.(3d) 226 (Ont. Dist. Ct.), refd to. [para. 45].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 49].

R. v. Lacasse (T.), [2015] 3 S.C.R. 1089; 478 N.R. 319; 2015 SCC 64, refd to. [para. 52].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 57].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 58].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 60].

Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; 121 N.R. 198, refd to. [para. 60].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 64].

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1, refd to. [para. 67].

R. v. Tabujara (F.B.), [2010] B.C.T.C. Uned. 1568; 2010 BCSC 1568, refd to. [para. 76].

R. v. Yonis (A.A.), [2011] A.R. Uned. 69; 2011 ABPC 20, refd to. [para. 76].

R. v. Johnson (2011), 227 C.R.R.(2d) 41; 2011 ONCJ 227, refd to. [para. 76].

R. v. Young, 2010 NWTSC 18, refd to. [para. 76].

R. v. Desmond, 2010 BCPC 127, refd to. [para. 76].

R. v. Bryan, 2010 NWTSC 41, refd to. [para. 76].

R. v. Otchere-Badu (F.), [2010] O.T.C. Uned. 5271; 2010 ONSC 5271, refd to. [para. 76].

R. v. Meunier, 2011 QCCQ 1588, refd to. [para. 76].

R. v. Tracey (C.), [2008] O.T.C. Uned. S14; 2008 CanLII 68268 (Sup. Ct.), refd to. [para. 76].

R. v. Draskoczi, 2008 NWTSC 12, refd to. [para. 76].

R. v. Kotsabasakis (A.M.) (2008), 334 N.B.R.(2d) 396; 858 A.P.R. 396; 2008 NBQB 266, refd to. [para. 76].

R. v. Rainville (S.P.) (2010), 490 A.R. 150; 497 W.A.C. 150; 2010 ABCA 288, refd to. [para. 76].

R. v. Delorme, 2010 NWTSC 42, refd to. [para. 76].

R. v. Scheer (1932), 26 Alta. L.R. 489 (C.A.), refd to. [para. 77].

R. v. Gardiner (1987), 21 O.A.C. 177; 35 C.C.C.(3d) 461 (C.A.), refd to. [para. 90].

R. v. Weiler (1975), 23 C.C.C.(2d) 556 (Ont. C.A.), refd to. [para. 90].

R. v. O'Connor, 1975 CarswellBC 842, refd to. [para. 92].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 5(1), sect. 5(2), sect. 5(3)(a)(i)(D) [para. 5].

Counsel:

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.

Solicitors of Record:

David N. Fai Law Corporation, Vancouver, British Columbia; Gowling WLG (Canada) Inc., Ottawa, Ontario, for the appellant;

Public Prosecution Service of Canada, Vancouver, British Columbia, for the respondent;

Peck and Company, Vancouver, British Columbia, for the intervener, the Canadian Bar Association;

Faisal Mirza, Mississauga, Ontario; African Canadian Legal Clinic, Toronto, Ontario, for the intervener, the African Canadian Legal Clinic;

Maia Tsurumi, Vancouver, British Columbia; Pivot Legal Society, Vancouver, British Columbia, for the interveners, the Pivot Legal Society and the Union of British Columbia Indian Chiefs;

HIV & AIDS Legal Clinic Ontario, Toronto, Ontario, 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;

MN Law, Vancouver, British Columbia, for the intervener, the British Columbia Civil Liberties Association;

Derstine Penman, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

La Liberté Cronin, Vancouver, British Columbia; West Coast LEAF, Vancouver, British Columbia, for the intervener, the West Coast Women's Legal Education and Action Fund.

This appeal was heard on January 13, 2016, before McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada.

On April 15, 2016, the judgment of the Court was delivered in both official languages and the following opinions were filed:

McLachlin, C.J.C. (Abella, Cromwell, Moldaver, Karakatsanis and Côté, JJ., concurring) - see paragraphs 1 to 56;

Wagner, Gascon and Brown, JJ., dissenting in part - see paragraphs 57 to 110.