36162   R. v. Safarzadeh-Markhali

Constitutional law — Charter of Rights — Fundamental justice

On appeal from the judgment of the Court of Appeal for Ontario (2014 ONCA 627) affirming a sentencing decision of Block J. (2012 ONCJ 494).

Sentencing courts have historically given enhanced credit for time spent in pre sentence custody, typically at a rate of two days for every day of detention. The Truth in Sentencing Act amended the Criminal Code to provide a general expectation of one day of credit for every day spent in pre sentence custody and, if the circumstances justify it, enhanced credit to a maximum of one and a half days. Pursuant to s. 719(3.1) of the Code, enhanced credit is not available if the person was denied bail primarily because of a prior conviction. M was arrested, charged with several offences and consented to his detention. At his bail hearing, the bail judge concluded that s. 515(9.1) required her to make an endorsement that M’s detention was warranted primarily because of M’s criminal record. The endorsement made M ineligible to receive enhanced credit for pre sentence custody. The sentencing judge found the restrictions on enhanced credit in s. 719(3.1) of the Code unconstitutional. The Ontario Court of Appeal agreed and concluded that the challenged portion of s. 719(3.1) is of no force and effect.

Held (9-0): The appeal should be dismissed.

The denial of enhanced credit for pre sentence custody to offenders who are denied bail primarily because of a prior conviction is overbroad because it catches people in ways that have nothing to do with the legislative purpose of s. 719(3.1) of the Code, which is to enhance public safety and security. Section 719(3.1) thus violates s. 7 of the Charter.

It is clear that s. 719(3.1) limits liberty. Its effect is to require offenders who come within its ambit to serve more time in prison than they would have otherwise. Laws that curtail liberty in a way that is overbroad do not conform to the principles of fundamental justice.

The first step in the overbreadth analysis is to ascertain the purpose of the challenged law. To determine a law’s purpose, courts look to statements of purpose in the legislation, if any; the text, context, and scheme of the legislation; and, extrinsic evidence such as legislative history and evolution. In presenting the Truth in Sentencing Act to Parliament, the Minister of Justice explained that denial of enhanced credit was aimed at promoting public safety and public confidence in the justice system, by imposing longer sentences on violent and repeat offenders and increasing their exposure to rehabilitative programming. Based on the text, context and scheme of the legislation, coupled with the Minister’s statements of purpose, the animating social value behind the denial of enhanced credit is enhancing public confidence in the justice system. The legislative purpose of the total denial of enhanced credit for pre sentence custody to offenders who are denied bail because of a prior conviction is to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs. The means for achieving the legislative purpose is the challenged provision itself and the effect of the provision is to impose longer periods of custody on all persons who receive an endorsement under s. 515(9.1) of the Code.

It is a principle of fundamental justice that a law that deprives a person of life, liberty, or security of the person must not do so in a way that is overbroad. The law must not go further than reasonably necessary to achieve its legislative goals. The provision in issue captures people it was not intended to capture: offenders who do not pose a threat to public safety or security. Section 515(9.1) does not specify or even broadly identify the offences that warrant an endorsement and limited availability of judicial review means that persons wrongly tagged with an endorsement will be without recourse to have the error remedied.

The infringement of s. 7 of the Charter is not justified under s. 1. While the challenged provision is rationally connected to its purpose of enhancing public safety and security, it is neither minimally impairing nor proportionate. Alternative and more reasonable means of achieving its purposes were open to Parliament. The benefit to public safety by increasing access to rehabilitation programs is not trivial but the law’s overbreadth means that offenders who have neither committed violent offences nor present a risk to public safety will be unnecessarily deprived of liberty.

The Court of Appeal erred in holding that proportionality in the sentencing process is a principle of fundamental justice under s. 7 of the Charter. The principles and purposes for determining a fit sentence, enumerated in s. 718 of the Code and provisions that follow — including the fundamental principle of proportionality in s. 718.1 — do not have constitutional status. The constitutional dimension of proportionality in sentencing is the prohibition of grossly disproportionate sentences in s. 12 of the Charter. The standard imposed by s. 7 with respect to sentencing is the same as it is under s. 12.

Reasons for judgment by The Chief Justice.

Neutral Citation: 2016 SCC 14

Docket Number: 36162

35982   R. v. Lloyd

Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment

On appeal from the judgment of the British Columbia Court of Appeal (2014 BCCA 224), setting aside two decisions of Galati Prov. Ct. J., (2014 BCPC 11 and 2014 BCPC 8).

L was convicted of possession of drugs for the purpose of trafficking. Because he had a recent prior conviction for a similar offence, he was subject to a mandatory minimum sentence of one year of imprisonment, pursuant to s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act (“CDSA”). Section 5(3)(a)(i)(D) provides a minimum sentence of one year of imprisonment for trafficking or possession for the purpose of trafficking in a Schedule I or II drug, where the offender has been convicted of any drug offence (except possession) within the previous 10 years. The provincial court judge declared the provision contrary to s. 12 of the Charter and not justified under s. 1. The Court of Appeal allowed the Crown’s appeal, set aside the declaration of unconstitutionality and increased the sentence to 18 months.

Held (6-3) (Wagner, Gascon and Brown JJ. dissenting in part): The appeal should be allowed.

Per McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis and Côté JJ.:

The provincial court judge in this case had the power to decide the constitutionality of s. 5(3)(a)(i)(D) of the CDSA. While provincial court judges do not have the power to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982, they do have the power to determine the constitutionality of mandatory minimum provisions when the issue arises in a case they are hearing. L challenged the mandatory minimum sentence of one year of imprisonment that applied to him. He was entitled to do so. The provincial court judge, in turn, was entitled to consider the constitutionality of that provision. He ultimately concluded that the mandatory minimum sentence was not grossly disproportionate as to L. The fact that the judge used the word “declare” does not convert his conclusion to a formal declaration that the provision is of no force or effect.

While L conceded that a one year sentence of imprisonment would not be grossly disproportionate as applied to him, it could in other reasonably foreseeable cases. That was the problem in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. Again, in the present case, the mandatory minimum sentence provision covers a wide range of potential conduct. As a result, it catches not only the serious drug trafficking that is its proper aim, but conduct that is much less blameworthy. This renders it constitutionally vulnerable.

At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of drugs, and who has been convicted many times for similar offences. At the other end of the range stands the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before. Most Canadians would be shocked to find that such a person could be sent to prison for one year.

Another foreseeable situation caught by the law is where a drug addict with a prior conviction for trafficking is convicted of a second offence. In both cases, he was only trafficking in order to support his own addiction. Between conviction and the sentencing he attends rehabilitation and conquers his addiction. He comes to court asking for a short sentence that will allow him to resume a healthy and productive life. Under the law, the judge has no choice but to sentence him to a year in prison. Such a sentence would also be grossly disproportionate to what is fit in the circumstances and would shock the conscience of Canadians.

Section 10(5) of the CDSA provides an exception to the minimum one year sentence if the offender has, prior to sentencing, successfully completed a drug treatment court program or another program approved under s. 720(2) of the Criminal Code. This exception is however too narrow to cure the constitutional infirmity. First, it is confined to particular programs, which a particular offender may or may not be able to access. Second, to be admissible to these programs, the offender must usually plead guilty and forfeit his right to a trial. One constitutional deprivation cannot cure another. Third, the requirement that the offender successfully complete the program may not be realistic for heavily addicted offenders whose conduct does not merit a year in jail. Finally, in most programs, the Crown has the discretion to disqualify an applicant.

The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable. This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences. In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment.

Insofar as s. 5(3)(a)(i)(D) of the CDSA requires a one year mandatory minimum sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter. This violation is not justified under s. 1. Parliament’s objective of combatting the distribution of illicit drugs is important. This objective is rationally connected to the imposition of a one year mandatory minimum sentence under s. 5(3)(a)(i)(D) of the CDSA. However, the provision does not minimally impair the s. 12 right.

Because the mandatory minimum sentence provision at issue violates s. 12 of the Charter, the question of whether it also violates s. 7 need not be addressed. In any event, the provision would not violate s. 7 of the Charter because proportionality in sentencing is not a principle of fundamental justice.

Finally, the provincial court judge’s determination of the appropriate sentence is entitled to deference. The Court of Appeal in this case took the view that the provincial court judge applied the wrong sentencing range. A careful reading of the reasons of the provincial court judge does not bear this out. The provincial court judge noted that sentences of three to four months had been upheld in a few exceptional cases, but went on to identify the appropriate sentencing range as 12 to 18 months. Applying a number of mitigating factors, he sentenced L to 12 months. In any event, even if the provincial court judge had erred in stating the range, the Court of Appeal would not have been entitled to intervene. It did not establish that a 12 month sentence in this case was demonstrably unfit.

Per Wagner, Gascon and Brown JJ. (dissenting in part):

The one year mandatory minimum sentence in s. 5(3)(a)(i)(D) of the CDSA does not infringe s. 12 of the Charter. Given the extremely high threshold that must be met before a s. 12 infringement will be found, the Court has struck down mandatory minimums under s. 12 only in very rare cases. It has done so only twice since the Charter’s enactment, in R. v. Smith, [1987] 1 S.C.R. 1045, and more recently in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. This is simply not one of those rare cases. The majority’s reasons would represent a departure from the Court’s jurisprudence, which has consistently maintained that mandatory minimums are not per se unconstitutional.

Unlike in either Smith or Nur, the mandatory minimum here is limited. It applies only to trafficking offences (not when the drugs are for personal use). It applies only to specific narcotics (Schedule I and II drugs) in specific quantities (of certain Schedule II drugs). And it applies only to certain repeat offenders. Thus, the minimum here does not cover a wide range of conduct. It is, rather, carefully tailored to catch only harmful and blameworthy conduct. The gross disproportionality test that has developed under s. 12 of the Charter is a difficult standard to meet. And it is not met in either of the sharing or rehabilitation scenarios described by the majority.

The sharing scenario described could fall outside the offence of trafficking and instead constitute mere joint possession. If the conduct would not result in a conviction for the offence at issue, then the hypothetical is not reasonable and should not be considered. The analysis must focus on the effect of the sentence once a conviction has properly been secured, rather than the effect of the sentence where the innocence of the accused remains debatable.

Assuming that sharing could ground a conviction for trafficking, however, this hypothetical scenario remains unfit for consideration under s. 12. In this hypothetical, the offender is convicted of trafficking for sharing drugs not once, but twice. Since there appear to be very few reported cases where offenders have been convicted of trafficking for sharing drugs, a scenario involving a two time sharing trafficker with no other conviction appears far fetched or marginally imaginable, and thus inappropriate for the s. 12 analysis. In any event, the blameworthiness of a repeat offender must be higher than that of a first time offender.

Even if the sharing scenario were accepted as a reasonable hypothetical, the mandatory minimum would not impose grossly disproportionate punishment. While the sharing trafficker may be somewhat less morally blameworthy than the cold blooded trafficker of hard drugs for profit, she is not so much less morally blameworthy that a one year sentence would outrage standards of decency. Whether the offender traffics by sharing, to support her own addiction or purely for profit, she facilitates the distribution of dangerous substances into the community. The harm to the community — in the form of overdose, addiction and the crime that sometimes comes with supporting addiction — remains the same regardless of the offender’s motives.

As for the rehabilitation scenario, the application of the mandatory minimum there is not a grossly disproportionate punishment, for two reasons. First, the mandatory minimum may not even apply. If the offender attends and successfully completes an approved treatment program between conviction and sentencing, s. 10(5) of the CDSA would apply and the sentencing judge would not be required to impose the mandatory minimum sentence at all. Second, even if the minimum does apply, the scenario is remarkably similar to the circumstances of L himself, for whom the majority agrees that the one year sentence is not cruel and unusual.

Thus, given the seriousness of the offence of drug trafficking and the deference owed to Parliament in setting mandatory minimum policies, this well tailored one year mandatory minimum does not impose grossly disproportionate punishment in either scenario. The mandatory minimum is therefore constitutional.

As the majority suggests, Parliament may wish to consider providing judges some discretion to avoid applying mandatory minimums in appropriate cases. But Parliament is not obliged to create exemptions to mandatory minimums as a matter of constitutional law. Parliament may legislate to limit judges’ sentencing discretion. Limiting judicial discretion is one of the key purposes of mandatory minimum sentences, and this purpose may be inconsistent with providing judges a safety valve to avoid the application of the mandatory minimum in some cases. Whether Parliament should enact judicial safety valves to mandatory minimum sentences and if so, what form they should take, are questions of policy that are within the exclusive domain of Parliament. The only limits on Parliament’s discretion are provided by the Constitution and in particular, the Charter right not to be subjected to cruel and unusual punishment. Section 5(3)(a)(i)(D) of the CDSA does not exceed this limit and does not amount to cruel and unusual punishment.

There is agreement with the majority’s analysis on the jurisdiction of provincial court judges and on s. 7 of the Charter, as well as the majority’s decision to restore the 12 month sentence.

Reasons for judgment by The Chief Justice (Abella, Cromwell, Moldaver, Karakatsanis and Côté JJ. concurring)

Reasons dissenting in part by Wagner, Gascon and Brown JJ.

Neutral Citation: 2016 SCC 13

Docket Number: 35982