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R. v. Lloyd, 2014 BCPC 11 (CanLII)

Date:
2014-02-19
File number:
217586
Other citations:
[2014] CarswellBC 423 — [2014] BCJ No 145 (QL)
Citation:
R. v. Lloyd, 2014 BCPC 11 (CanLII), <https://canlii.ca/t/g3620>, retrieved on 2024-03-28

Citation:      R. v. Lloyd                                                                           Date: 20140219

2014 BCPC 0011                                                                          File No:                    217586

                                                                                                        Registry:            Vancouver

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

JOSEPH RYAN LLOYD

 

 

 

 

 

RULING ON APPLICATION

OF THE

HONOURABLE JUDGE J. F. GALATI

 

 

 

 

 

Counsel for the Crown:                                                                           P. Riley and K. Torvik

Counsel for the Defendant:                                                                                                D. Fai

Place of Hearing:                                                                                               Vancouver, B.C.

Date of Hearing:                                                                                               January 24, 2014

Date of Judgment:                                                                                          February 19, 2014


INTRODUCTION

 

[1]           Mr. Lloyd stands convicted on three counts of possession of Schedule 1 substances for the purpose of trafficking.  He has a recent prior conviction for a designated substance offence and the Crown having provided notice, Mr. Lloyd is subject to a mandatory minimum sentence of imprisonment for one year pursuant to s.5(3)(a)(i)(D) of the Controlled Drugs and Substances Act ( the “CDSA”).

[2]           Mr. Lloyd has challenged the constitutional validity of s.5(3)(a)(i)(D) and in a Ruling dated and filed January 24, 2014, I concluded that a mandatory minimum sentence of imprisonment for one year is not grossly disproportionate for Mr. Lloyd, but it would be for a hypothetical offender with a prior designated substance conviction who is convicted of trafficking or possession for the purpose of trafficking on the basis of sharing small amounts of a Schedule 1 substance.  Accordingly, I held that the mandatory minimum sentence required by s.5(3)(a)(i)(D) constitutes cruel and unusual punishment contrary to s.12 of the Charter of Rights and Freedoms (the “Charter”).

[3]           Counsel have provided written submissions with respect to whether s.5(3)(a)(i)(D) can nevertheless be “saved” pursuant to s.1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society.

THE OAKES TEST

[4]           There is no issue that with respect to whether a particular law constitutes a reasonable limit within the meaning of s.1 of the Charter, the court must undertake the two step analysis first articulated in R. v. Oakes 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.

[5]           The elements of the Oakes test have been accurately summarized in the written submissions of the Crown, as follows:

            (a)  First, the court must be satisfied that the objective of the law is of sufficient             importance to warrant the overriding of the constitutionally protected right in             issue.  The objective must be pressing and substantial.

            (b)  Second, the court must be satisfied that the means chosen are “reasonable   and demonstrably justified”.  This involves a form of “proportionality test” with the following three important components, all three of which must be satisfied:

                             (i)   There must be a rational connection between means chosen by the legislature and the legislative objective.

                        (ii) The means must impair the right as little as possible in order to achieve the legislative objective.

                        (iii) There must be proportionality between the legislative objective and the effect of the legislation on the Charter-protected interests that it limits.

 

POSITIONS OF THE PARTIES

[6]           With regard to the Oakes test, the Crown submits that s.5(3)(a)(i)(D) has the significant objective of combatting the distribution of illicit drugs, which is sufficiently pressing and important to justify overriding the rights protected by s.12 of the Charter.

[7]           Further, the Crown submits that because s.5(3)(a)(i)(D) is carefully tailored to apply to a relatively narrow set of circumstances, it meets the proportionality requirements of the second branch of the Oakes test and accordingly, it is “reasonable and demonstrably justified”.

[8]           Mr. Lloyd relies on the remarks of Doherty, J. in R. v. Nur 2013 ONCA 677 at paragraphs 177 to 181 and submits that because s.5(3)(a)(i)(D) has been found to “outrage standards of decency”, the objectives of deterrence and denunciation cannot justify overriding the constitutional protection afforded by s.12 of the Charter.  With respect to the second branch of the Oakes test, Mr. Lloyd says that where the potentially affected offender is an addict, less weight should be afforded to the hypothesis that he or she will be deterred by a mandatory minimum sentence and that s.5(3)(a)(i)(D) is also disproportionate to the objective of combatting the distribution of illicit drugs because it captures the “small offender” referred to in the hypothetical scenario.

ANALYSIS

[9]           Notwithstanding the comment in my previous Ruling as to the almost certain outcome of a s.1 analysis in respect of a legislative provision which requires the imposition of cruel and unusual punishment, I agree with the Crown that, by its very wording s.1 can be invoked to justify an infringement of s.12 of the Charter and that all of the relevant jurisprudence, with the possible exception of Nur, requires the analysis to be made.  I note the comment of Gonthier, J. at paragraph 45 of R. v. Morrisey 2000 SCC 39:  “…General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual.  It could also possibly serve as a justification under s.1 if it were ever necessary to justify a violation of s.12, but that is not the case here”.  In the case at bar it is necessary to justify the violation of s.12.

[10]        With respect to the first branch of the Oakes test, the Crown submits and I agree that the personal and societal costs of drug abuse are significant if not staggering and that drug trafficking is widely regarded as a source of insidious harm to our communities.  The government would be remiss in its duty to the citizens of Canada if it did not attempt to combat trafficking but must do so in adherence to the Charter

[11]        For the purpose of this Ruling, I have proceeded on the basis that the legislative objective of combatting trafficking in Schedule 1 substances is pressing and substantial and of sufficient importance to justify overriding the s.12 right not to be subjected to cruel and unusual punishment.  The submission of Mr. Lloyd to the contrary is best left to more fulsome submissions in a more appropriate forum.

[12]        With respect to the second branch of the Oakes test, for the reasons that follow, I find that the Crown has not met the onus on it to show on a balance of probabilities that s.5(3)(a)(i)D) is “reasonable and demonstrably justified”.

[13]        The first component, a rational connection between the mandatory minimum sentence and the objective of combatting drug trafficking is present because denunciation and deterrence are sentencing objectives which must be considered in every case and as I mentioned in my previous Ruling, the legislature has the right to fashion a drug sentencing regime which stresses denunciation and deterrence over other sentencing objectives.  Mr. Lloyd questions the efficacy of such a strategy where the target group of potential offenders includes addicts who are trafficking to support their own habit, as well as the hypothetical “small offender” with a prior designated substance conviction, who possesses a small quantity of a Schedule 1 substance for the purpose of sharing it.  It may well be that persons in those situations are unlikely to be deterred by mandatory minimum sentences and that the means chosen by the legislature, namely the enactment of s.5(3)(a)(i)(D), may not necessarily lead to the legislative objective of combatting drug trafficking.

[14]        The second component of minimal impairment of the constitutional right may be achieved by targeting a group which does not include persons in those situations but in the case at bar the limiting features of the legislation do not do so.  Those limiting features are that the section applies only to trafficking in specific classes of substances and only to offenders who have the required prior conviction.  Many of the targeted classes of substances are illegally possessed and used extensively throughout Canada.  There are numerous drug addicts and users with a designated substance offence conviction in the preceding ten years and that number is increased by those who have served a term of imprisonment for such an offence within the same period.  The circumstances relating to convictions for designated substance offences run the gamut from very serious cases to more trivial ones and offenders range from career criminals in the upper hierarchy of the drug trade to “small offenders”.  Many offenders are of aboriginal heritage and their respective personal circumstances would otherwise warrant particular attention pursuant to s.718.2(e) of the Criminal Code.  The section casts a very wide net and clearly it could have been tailored to further restrict the target group.  In all of the circumstances I do not find that it minimally impairs the right to not be subjected to cruel and unusual punishment.

[15]        With respect to the third component of proportionality between the objectives of the law and its effects, the Crown submits that the hypothetical scenario on which I found s.5(3)(a)(i)(D) to violate s.12 would not be a very common occurrence and accordingly the law is not likely to produce unconstitutional effects on a regular basis.  Although I noted in my previous Ruling that it is uncommon for individuals to be convicted of trafficking by sharing, the reason for that is the exercise of prosecutorial discretion.

[16]         The exercise of prosecutorial discretion which may reduce the number of “small offenders” who are actually prosecuted pursuant to s.5(3)(a)(i)(D) is not relevant to a s.1 analysis which is concerned with the object and construct of the impugned provision and not how it may be applied.  In any event, as reflected in the Guidelines For Federal Prosecutors filed in this proceeding, prosecutorial discretion with respect to mandatory minimum sentences is very limited.

[17]        The Crown further submits that the nature of the infringement of s.12 of the Charter by s.5(3)(a)(i)(D) is less severe than in those types of cases which involve much longer mandatory minimum sentences so that the effect on those persons for whom imprisonment for one year may be characterized as “grossly disproportionate” does not make the law itself disproportionate to the broader objective of combatting drug trafficking.  That submission must however, be viewed in the context that in the case at bar, s.5(3)(a)(i)(D) has been found to require cruel and unusual punishment in a hypothetical scenario which occurs on a daily basis.  In my view, there is little to be gained from comparing legislative provisions with disparate objectives where the issue is the proportionality of the particular infringement to the particular legislative objective.  In the circumstances of what I have accepted as a reasonable hypothetical, the infringement of the s.12 right is not proportional to the objective of combatting drug trafficking merely because a one year mandatory minimum sentence is less severe than other mandatory minimum sentences.

[18]        Ultimately, the s.1 analysis in this case results in the same observation made by Doherty, J. at paragraph 181 of Nur, that:  “If an argument can be made that could justify sheltering a sentence that amounted to cruel and unusual punishment under s.1, I have not heard it”.

CONCLUSION

[19]        Having previously found that the mandatory minimum sentence of imprisonment for one year pursuant to s.5(3)(a)(i)(D) of the CDSA constitutes cruel and unusual punishment in violation of s.12 of the Charter, I now conclude that it is not a reasonable limit  within the meaning of s.1 of the Charter and declare it to be of no force and effect.

 

 

 

 

 

The Honourable Judge J.F. Galati

Provincial Court of British Columbia