Three questions on R. v. Lloyd

  • April 19, 2016

The Supreme Court of Canada released its decision in R. v. Lloyd today, ruling that a mandatory minimum sentence for drug-trafficking violates section 12 of the Charter because it doesn’t allow for judicial discretion based on the circumstances of the particular conduct and the individual offender.

Eric Gottardi and Mila Shah of Peck and Company appeared before the court, acting on behalf of the CBA, in January. They argued that all mandatory minimum sentences need exemption clauses, and while the sentence at issue in this case did have such a clause, it was insufficient.

We did a follow-up Q&A with Gottardi on Friday after the decision came down:

1. Can you give us a quick summary of the decision?

Chief Justice McLachlin, writing for the majority of the Supreme Court, held that the one-year mandatory minimum sentence for trafficking, where the offender has been convicted of a previous drug offence within the last 10 years, was unconstitutional. It amounted to cruel and unusual punishment. The problem is that the mandatory minimum sentence applies to a wide range of potential conduct. While it properly catches some serious drug trafficking, it also catches conduct that Canadian society would not find blameworthy. For example, the one-year minimum would apply to an addict who is charged with trafficking for giving a small amount of drugs to a friend or spouse, and who has a single previous conviction of sharing marijuana in a social setting nine years ago. The court held that most Canadians would be shocked to find that person could be sent to prison for one year.

2. What are the implications for sentencing?

Not only did the court find that the particular mandatory minimum sentence was unconstitutional, it made some very important comments about mandatory minimum sentences in general. The court held that minimum sentences for broad offences are vulnerable to constitutional challenges, because there will inevitably be a scenario where the minimum sentence is manifestly unfair. This has serious implications for sentencing. We have approximately 60-70 mandatory minimum sentences on the books, most of which apply to offences that can be committed under a broad array of circumstances and by a wide range of people. The court’s ruling today means that all of these mandatory minimum sentences are constitutionally vulnerable. It is a strong signal to lower courts that they should not be shy about declaring these minimum sentences unconstitutional. It is also a strong message to the government to make a change. The court is clear that if Parliament wishes to maintain mandatory minimum sentences for broad offences, it should consider narrowing their reach or providing for some judicial discretion (i.e. an exemption clause) to allow for a lesser sentence where warranted. This latter option is something for which the CBA has advocated for years.

3. What comes next?

This case is a great example of constitutional dialogue. The Supreme Court of Canada has identified a constitutional problem with the minimum sentences enacted under the Harper government, and has given Parliament some ideas about how to fix the problem. Hopefully, Parliament will enact a broad-based exemption clause that preserves judicial discretion to depart from mandatory minimum sentences where they are manifestly unfair. 

[0] Comments

CBA members may sign in to comment.