SCC Tosses Tough on Crime Agenda Out the Window

Let’s say it’s a Friday night, on April 20, 2007.

At the end of a long day, and the end of a long week, and you come home from work to smoke a joint with your spouse at home on your front porch. You don’t go out on the town, you don’t drive a car, you just stay home for the evening.

But because you smoked it on your porch your neighbor decides to call the police. They come over, and you get into a bit of a legal jam. Not any big deal, mind you, but it’s on your record.

Nine years later, you haven’t smoked marijuana even once. Some friends drag you out on a Wednesday night, April 20, 2016, and at the party you are passed a joint. Puff, puff, pass. Puff, puff, pass. You puff. You pass.

That passing is a contravention of Controlled Drugs and Substances Act though, and you would be sentenced to a year in jail for trafficking.

Then there’s the addict with a previous conviction, arrested on a second offence. He manages to kick the habit entirely by going to a rehabilitation centre, and looks forward to embarking on a productive and healthy life. Rather than a short sentence to remind him of his wrongdoing, the judge would have no choice by to impose a year-long conviction.

These types of hypothetical fact scenarios, adopted by the Chief Justice from the trial judge, was described in R. v. Lloyd at paras 43-44 as ones which would “shock” most Canadians. Yet, that has been the law in Canada since the introduction of the Truth in Sentencing Act in 2009, which removed judicial discretion from certain drug offences and imposed mandatory minimum sentences.

The use of mandatory minimums has been largely decried by the legal profession, and received significant critique by the Court in R. v. Nur. This week’s decision in Lloyd effectively put an end to the criminal law reforms by the previous Federal administration which required jail time for these offences.

A number of courts have raised constitutional issues around these sentencing provisions. Here, the Court found that these trial level courts did have the power to determine their constitutionality. Although in this case the trial judge did not find the mandatory minimum to be grossly disproportionate to the accused, a finding the Court upheld as deserving deference, the Court was forced to contemplate reasonably foreseeable situations where it would be grossly disproportionate.

The Chief Justice stated at para 35,

…the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.

The requirement of the Act for one year imprisonment violated the s. 12 guarantee against cruel and unusual punishment, and this could not be justified under s. 1.

The Court does not easily come to a finding of cruel and unusual punishment. A grossly disproportionate sentence is not just one which is excessive, but one which is “so excessive as to outrage standards of decency” and “abhorrent or intolerable” [para 42]. It is because the Truth in Sentencing Act is so broadly applied that encompasses a wide range of conduct and circumstances and could be grossly disproportionate.

Although the constitutional objective in mandatory minimums is an important objective, fighting the distribution of illegal drugs, and rationally connected to trafficking, it was not a minimal impairment and lacked proportionality. Although the Court in Oakes dealt with a similar constitutional issue in 1986, there were no indication that less harmful means could achieve the same goal here.

Citing Julian V. Roberts’ 2005 study, Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models, the Court qualified that mandatory minimums could be constitutional if they contained a residual judicial discretion clause to deal with outlying cases, an approach often used in other countries.

The Court wasn’t finished with Truth in Sentencing Act with just Lloyd. On the same day they released R. v. Safarzadeh-Markhali, dealing with credits for pre-sentence custody, or Time In Custody (TIC). The Truth in Sentencing Act severely constrained this practice under s. 719 of the Criminal Code by limiting it to a maximum of 1.5 only “if the circumstances justify it.”

Judges across Canada periodically provided higher credits before this, largely given the circumstances and protracted waiting times in some jails. Pre-trial custody has also been addressed recently by the Court in R. v. Summers, where the Court found that the lost opportunity from earned remission or parole could be used to enhance credit provided.

The court found these provisions to violate s. 7 of the Charter because it required offenders to serve more time in prison than they would otherwise, which is disproportionate. It is overbroad in that catches individuals in ways which have nothing to do with public safety and security, which would not conform with the principles of fundamental justice. The Court referred to para 105 of Canada v. Bedford, and stated,

[22] …the denial of any enhanced credit for pre-sentence custody to persons to whom bail is denied primarily because of a prior conviction — violates s. 7 of the Charter for another reason: it is overbroad. Laws that curtail liberty in a way that is arbitrary, overbroad or grossly disproportionate do not conform to the principles of fundamental justice…

They made specific reference to the Justice Minister’s statements in the House to illustrate how the provisions could not be saved by s. 1,

[44] Similarly, the challenged provision, by its words and how it operates, is not directed at preventing offenders’ manipulation of the system. The Minister expressed concern that under the old system, offenders were prolonging pre-sentence custody to take advantage of enhanced credit that would shorten their total time in custody. While this goal is reflected in the one-and-a-half-for-one cap on enhanced credit, which removes the incentive to extend the period of pre-sentence custody, it is not related to the challenged provision.

The effect of these two decisions is that the Court has largely undone some of the “tough on crime” initiatives undertaken by the previous government. Given the enormous opposition from the bar to these initiatives, it’s unlikely that a softer form will be reintroduced by the current government.

This does not mean that our legal system is lenient towards criminals, or does not take crime seriously. What these decisions highlight is that even when we deal with the criminally accused the constitution is an important consideration – perhaps the most important one.