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Digest of the Week | Mandatory Minimum

Mandatory minimum sentence infringed s. 12 Charter right to be free of cruel and unusual punishment

R. v. Lloyd
2016 SCC 13
Supreme Court of Canada

Criminal law --- Charter of Rights and Freedoms — Cruel and unusual punishment [s. 12]

Accused, 25-year-old male with significant previous record of offences including very recent conviction for trafficking in controlled substance, was convicted on three counts of possession of controlled substance for purpose of trafficking — As accused had served previous term of imprisonment for trafficking offence, by operation of s. 5(3)(a)(i)(D) of Controlled Drugs and Substances Act (CDSA) accused faced mandatory minimum one-year term of imprisonment — Trial judge held that, while given accused's antecedents accused was not properly sentenced at low end of range, in circumstances mandatory minimum constituted "inflationary floor" and was thus cruel or unusual treatment or punishment contrary to s. 12 of Canadian Charter of Rights and Freedoms — Trial judge accordingly issued declaration of invalidity with respect to s. 5(3)(a)(i)(D) of CDSA and sentenced accused to concurrent terms of one-year of imprisonment — Crown successfully appealed — Court of Appeal ruled that trial judge in inferior trial court lacked jurisdiction to make declaration of invalidity in circumstances — With regard to aggravating factors in present case including accused's very recent incarceration and questionable desire for rehabilitation, impugned provision did not apply to accused as appropriate sentence would significantly exceed one-year term of imprisonment in any event — Declaration was set aside and accused was sentenced to 18-month effective global term of imprisonment — Accused appealed — Appeal allowed; one-year sentence restored — Section 5(3)(a)(i)(D) of CDSA infringes right to be free of cruel and unusual punishment under s. 12 of Charter — Mandatory minimum could be constitutional in many circumstances but its reach was too broad and captured conduct that would not be deserving of one-year sentence which would result in sentences that are cruel and unusual — Exception allowing for recognition of successful treatment was inadequate as it was not available to all and involved giving up right to trial — Law could not be saved by s. 1 of Charter — Objective failed to minimally impair s. 12 right — Crown failed to prove there were less harmful means of achieving objective or show that limit on offenders was proportionate to good flowing from law — Provincial court judges are not empowered to make formal declarations that law is of no force or effect under s. 52(1) of Constitution Act, 1982, but they do have power to determine constitutionality of law where it is properly before them — Power flows directly from their statutory power to decide cases before them — Trial judge did not act incorrectly.
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