Mandatory minimum sentence a cruel and unusual punishment

In 2012, the Safe Streets and Communities Act was passed into law as part of the Conservative government’s tough-on-crime agenda. Among other things, the SSCA amended the Controlled Drugs and Substances Act to impose mandatory minimum sentences on those convicted of certain drug-related offences. Though the Conservatives said these provisions were targeted towards high-level drug traffickers, Pivot Legal Society predicted that they would in reality be more likely to affect small-time drug users, people with addictions or mental health issues, and Aboriginal people. Pivot also predicted that the amendments may run afoul of the Canadian Charter of Rights and Freedoms.

These predictions proved true in January 2014, when, in R. v. Lloyd, Judge Galati of the Provincial Court of British Columbia found unconstitutional the provision that anyone convicted of a drug trafficking offence involving certain drugs, who has also been convicted of a designated drug offence in the preceding ten years, serve a minimum sentence of one year imprisonment.

Mr. Lloyd was convicted in Vancouver in September 2013 on three counts of possession for the purpose of trafficking. He testified that he is dependent on the drugs he was convicted of possessing and was selling them to obtain drugs for his own use. Judge Galati describes Lloyd as a “low level drug dealer” who “was trafficking to support his own addiction.” Lloyd has a history of convictions for various offences, including a February 2013 conviction, also for possession for the purposes of trafficking. Because of the type of drugs Lloyd was found with and his recent prior trafficking conviction, Lloyd was subject to the mandatory minimum sentence of one year imprisonment.

Lloyd challenged this provision and sought a declaration that it violates sections 7 (the right to life, liberty, and security of the person), 9 (the right not to be arbitrarily detained or imprisoned), and 12 (the right to not be subjected to any cruel and unusual punishment) of the Charter and is thus unconstitutional.

In his judgment, Judge Galati found that, even without consideration of the mandatory minimum sentence provision, a twelve month sentence was appropriate for Lloyd due to aggravating circumstances surrounding his arrest and conviction. The judge went on, however, to consider the constitutional challenge.

In the end, Judge Galati found that the mandatory minimum sentence provision violates section 12 of the Charter due to its potential to sweep up small offenders whose offences do not warrant a one year sentence. In his analysis, Judge Galati looks at the hypothetical case of a drug user with a potentially ten-year-old prior conviction who possesses a small amount of a certain drug and shares it with a spouse or friend – a situation, he says, “which happens daily in the downtown east side of Vancouver.” Judge Galati points out that while the distinction between possessing a small amount of a drug for one’s own use and possessing the drug with the intent of sharing it with friends is relatively minor, the former would carry a minor sentence while the latter, if the impugned provision is valid, would carry a sentence of at least one year imprisonment. In Judge Galati’s opinion, a one year mandatory minimum sentence for such a hypothetical individual would go “well beyond what is justified by the legitimate penological goals of the sentencing principles of the CDSA” and would be a punishment “which Canadians would find abhorrent or intolerable.”

Judge Galati concludes by adjourning the matter to allow the government an opportunity to justify the infringement under section 1 of the Charter, but states that he does not think “that a sentence which constitutes cruel and unusual punishment would ever qualify as a reasonable limit demonstrably justified in a free and democratic society.”

The sentencing provision at the heart of Lloyd, and other provisions like it, violates the Charter rights of some of Canada’s most marginalized people. In addition to the high-level traffickers and drug “kingpins” that the Conservatives claim these provisions are aimed at, Lloyd proves that they will capture many more vulnerable people as well.

In 2013, Pivot issued a call to arms for the legal profession to challenge this misguided legislation and “restore more balance to the justice system for people who live on the margins of our society.” Pivot will be watching closely the future developments in Lloyd and other cases like it and encourages others to do the same and to take a stand against mandatory minimums.