The Conservative Government’s 2011 omnibus crime bill – Bill C-10 – imposed mandatory minimum sentences (MMS) for many drug offences. Bill C-10 created a one year mandatory jail sentence for trafficking even a small amount of drugs, if the accused person has been convicted of a similar offence within the previous ten years.

The legality of this mandatory minimum sentence was the issue under consideration in R. v. Lloyd, 2014 BCPC 8.  The Court found that the one-year minimum violated the Canadian Charter of Rights and Freedoms as in many situations it “is a sentence which Canadians would find abhorrent or intolerable.”

The Court considered the hypothetical scenario of an addict who has in his possession a small amount of a Schedule 1 substance, which he intends to share or does share with a spouse or friend. – A situation that happens daily amongst people living on the street. Many of these persons have prior convictions for designated drug offences.

In finding minimum sentences for trafficking small amounts of drugs unconstitutional the Court held in R. v. Lloyd:

 [51]        Sharing small amounts of Schedule 1 substances is an illegal activity which requires mens rea and as such the offender is morally culpable.  However, his or her degree of moral culpability is far less than that which would attach to someone selling large amounts for profit.  The gravity of the offence for sharing small amounts is less serious as the impact of the dangerous substance is limited to the few people with whom it is intended to share.  The impact on society is more directly related to the fact that dangerous drugs are being used than to the distribution of the small amount to those users.

 [52]        I am confident that not many cases involving the sharing of small amounts of Schedule 1 substances end up being charged as trafficking or possession for the purpose of trafficking but I am equally confident that there have been such cases which resulted in convictions.  In my view, the likelihood that offences of this nature may often be prosecuted as cases of simple possession does not detract from the reasonableness of the hypothetical given the scope to be afforded to reasonable hypotheticals, as determined in Nur.

 [53]        Sentences in simple possession cases range from discharges to short periods of imprisonment, even for repeat offenders.  There is a relatively minor distinction between possessing a small quantity of a Schedule 1 substance for personal use and possessing that same small quantity for the purpose of sharing it, yet the difference in sentences for those slightly different offences would be dramatic if s. 5(3)(a)(i)(D) is constitutionally valid.

 [54]        The offender in the identified hypothetical would have a prior conviction for a designated drug offence which may be more than ten years old.  He or she is likely an addict but may instead be a recreational user of drugs.  That is a personal characteristic which is not relevant to a reasonable hypothetical.  All sorts of drug users share drugs.  A one year jail sentence for this hypothetical offender goes well beyond what is justified by the legitimate penological goals and sentencing principles of the CDSA.  It is a sentence which Canadians would find abhorrent or intolerable.  Accordingly, I find that the mandatory minimum sentence of imprisonment for one year required by s. 5(3)(a)(i)(D) of the CDSA constitutes cruel and unusual punishment.

The decision of the British Columbia Provincial Court is not binding on Ontario Courts.  The decision in R. v. Lloyd, however, does pave the way for similar arguments in Ontario.

Ottawa Criminal Lawyer

Charged with a drug offence in Ottawa? Contact Ottawa criminal lawyer Brett McGarry to discuss defending your case.