Constitutional Jurisdiction - Confirmed

Joseph Lloyd was charged with trafficking contrary to section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act. He faced a mandatory minimum sentence of one year. He challenged that minimum and asserted that it violated section 12 of the Charter. Notwithstanding that the trial judge (and counsel) believed that Lloyd deserved a sentence of at least 12 months, the trial judge considered the constitutionality of the provision and held that it violated section 12. The trial judge “declared” the provision to be of no force and effect. The Crown appealed and succeeded. Lloyd appealed to the Supreme Court: 2016 SCC 13.

The Supreme Court’s ruling offers three significant points of interest: (i) constitutional jurisdiction; (ii) the standard for section 12; and (iii) the limits of section 7.

Constitutional Jurisdiction

Before considering the constitutionality of the minimum sentence, McLachlin CJ, writing for the majority, addressed the issue of the constitutional jurisdiction of provincial court judges. The Court of Appeal had taken issue with the provincial court judge’s purported “declaration” of invalidity – holding that only superior courts, which have inherent jurisdiction can make such a finding. McLachlin CJ agreed:

The law on this matter is clear. Provincial court judges are not empowered to make formal declarations that a law is of no force or 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. As this Court stated in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 316, “it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.” See also Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5, at pp. 14-17; Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570, at p. 592; Re Shewchuk and Ricard (1986), 1986 CanLII 174 (BC CA), 28 D.L.R. (4th) 429 (B.C.C.A.), at pp. 439-40; K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at p. 6-25.
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. [Emphasis added]. @paras15 and 19

McLachlin CJ thus confirmed that while the provincial court judge in the present case had the statutory jurisdiction to consider the constitutionality of the provision – and to grant a remedy for Lloyd – the court had no inherent jurisdiction and thus no authority to make a “formal declaration”. Notably, McLachlin CJ went on to make clear that in cases such as the present one (where Lloyd was not impacted by the mandatory minimum) the doctrine of mootness could apply and the court could (perhaps should) decline to consider the issue:

To be sure, 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. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. 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. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process. [Emphasis added]. @para18

This conclusion is indeed consistent with the Court’s prior jurisprudence on this point and, equally important, logical and principled. There is nothing in our constitutional history and nothing in our principles of law that would warrant otherwise.

Section 12

Turning to the constitutionality, McLachlin CJ held that the provision violated section 12 – a three-member minority (Gascon, Wagner and Brown JJ) dissented on this conclusion and would have upheld the provision. Notably, however, McLachlin CJ offered some helpful language regarding the high bar for a finding of disproportionality under section 12:

This Court has established a high bar for finding that a sentence represents a 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 or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6 (CanLII), [2008] 1 S.C.R. 96, at para. 14. 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. @para24

The import of this can be understood – to some extent – when one reviews the dissent which expresses notable concern and offers a note of caution about the impact of the majority’s finding on this standard and how the majority’s conclusion appears out of step with the Court’s prior position on mandatory minimum sentences. @paras105-107.

Section 7

The final area of interest in Lloyd is the Court’s consideration and rejection of “proportionality” as a principle of fundamental justice. Notably, the Court considered the same issue in Safarzadeh-Markhali, 2016 SCC 14. In both cases the Court rejected the inclusion of “proportionality” as a principle of fundamental justice – in Lloyd the following comments summarize that rejection:

I am unable to accept the submission that the principle of proportionality in sentencing is a principle of fundamental justice under s. 7 of the Charter. My starting point is the observation that principles of fundamental justice in s. 7 must be defined in a way that promotes coherence within the Charter and conformity to the respective roles of Parliament and the courts.
Recognition of the principle of proportionality in sentencing as a principle of fundamental justice under s. 7 would also have implications for the respective roles of Parliament and the courts. The principle of proportionality is an admirable guide for judges seeking to impose fit sentences within the legal parameters established by Parliament.  But it is not an overarching constitutional principle that allows judges to subvert the norms of punishment enacted by Parliament. Those norms are judged only by the standard of s. 12.
Parliament has the power to make policy choices with respect to the imposition of punishment for criminal activities and the crafting of sentences that it deems appropriate to balance the objectives of deterrence, denunciation, rehabilitation and protection of society. Courts owe Parliament deference in a s. 12 analysis. As Borins Dist. Ct. J. stated in an oft-approved passage:
It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. (R. v. Guiller (1985), 48 C.R. (3d) 226 (Ont.), at p. 238)
[Emphasis added]. @paras 40, 43 and 45