The Canadian Supreme Court considered the constitutionality of mandatory sentencing in a recent controversial judgment handed down this month: R v Lloyd 2016 SCC 13.

The case concerned a mandatory sentencing regime introduced by the previous Conservative government, whereby an offender was liable to a mandatory minimum sentence of one year imprisonment upon conviction of a second drug offence in ten years.

The Court found that the mandatory minimum sentence was cruel and unusual punishment, and thus unconstitutional.

The Court’s judgment sparked an unhappy response from Peter Mackay, the former Canadian Justice Minister and Attorney General, which in turn provoked a displeased riposte from feminist and activist Naomi Sayers.

This article will examine the background of the case, and analyse the Supreme Court’s finding that the mandatory sentencing regime was cruel and unusual punishment.

The background of the case

The appellant, Joseph Lloyd, was a drug addict and dealer in Vancouver. He was addicted to cocaine, methamphetamine, and heroin, and sold drugs to support his addiction. He had been convicted of 21 prior offences, including a number of drug-related offences. In 2013, Lloyd was convicted of possession of methamphetamine for the purpose of trafficking, and sentenced to jail. A month after his release, he was again arrested and charged with three counts of possession of crack cocaine, methamphetamine, and heroin for the purpose of trafficking. He was thus liable to the one-year mandatory minimum sentence.

He came before a provincial court judge, who reviewed his case and sentenced him to one year imprisonment on normal sentencing principles. However, the judge went on to review Lloyd’s argument about the constitutionality of the mandatory sentencing regime, and found that it breached the prohibition on cruel and unusual punishment in section 12 of the Canadian Charter of Rights and Freedoms. Accordingly, he found that the sentencing regime was unconstitutional, despite the fact that the punishment it would have mandated in Lloyd’s case was deemed to be appropriate.

The case was appealed to the British Columbia Court of Appeal. That Court found that the provincial court judge did not have the power to make a formal declaration of constitutional invalidity. It declined to hear Lloyd’s constitutional argument, finding that it would not have a substantial impact on the sentence imposed anyway. On the other hand, the Court did allow the Crown’s sentence appeal, and increased Lloyd’s sentence to 18 months in prison.

The case was appealed to the Supreme Court.

The Supreme Court

The majority of the Supreme Court, led by Chief Justice Beverley McLachlin, who authored the majority judgment, considered the question in two stages:

  1. Did the mandatory sentencing regime infringe the right to be free from cruel and unusual punishment, contained in section 12 of the Charter?
  2. If so, was the infringement a “reasonable limit [on that right] prescribed by law as can be demonstrably justified in a free and democratic society” under section 1 of the Charter, in which case the regime would not be unconstitutional?


In order for Lloyd to succeed, the Court would need to answer the first question ‘yes’, and the second question ‘no’.

The majority considered the first question, and said that:

A law will violate s 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others.

Although Lloyd was not arguing that his term of imprisonment was “grossly disproportionate”, that did not mean that the Court couldn’t consider his argument. The mandatory sentencing regime might have that effect on somebody else.

The majority also noted that there was:

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.

Lloyd therefore had a tough argument ahead of him.

However, the majority said:

The problem with the mandatory minimum sentence provision in this case is that it “casts its net over 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.

The majority considered a range of conduct that could be caught by the mandatory sentencing regime, saying:

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 Schedule I substances, 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 a Schedule I drug 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.

I agree with the provincial court judge that most Canadians would be shocked to find that such a person could be sent to prison for one year.

As a result of this breadth, the majority found that the mandatory sentencing regime infringed the prohibition on cruel and unusual punishment:

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.

So the majority answered its first question ‘yes’.

A reasonable limit?

The majority then turned to its second question: was the infringement a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society” under section 1 of the Charter?

First, the judges accepted that Parliament’s objective in passing the sentencing regime – to combat the distribution of illicit drugs – was “unquestionably an important objective”.

Secondly, they also found that the regime was rationally connected to achieving this objective. In other words, they found that a mandatory minimum sentence of one year for offenders who were being convicted of their second drug offence in ten years was not an unreasonable way to combat the distribution of illegal drugs.

However, the majority decided that the regime was not a “reasonable limit” on the rights not to be subject to cruel and unusual punishment, because the way the legislation was structured did not “minimally impair” that right. In other words:

The Crown has not established that less harmful means to achieve Parliament’s objective of combatting the distribution of illicit drugs, whether by narrowing the reach of the law or by providing for judicial discretion in exceptional cases, were not available.

Nor has it shown that the impact of the limit on offenders deprived of their rights is proportionate to the good flowing from their inclusion in the law.

Therefore, the sentencing regime was not a reasonable limit on the section 12 right. The answer to the second question was ‘no’.

Lloyd had won.

The one year term of imprisonment set by the provincial court judge was restored, and the mandatory sentencing regime was struck down.

Dissenting judgment

Three of the nine judges dissented from this finding that the sentencing regime was unconstitutional.

The minority acknowledged that mandatory sentences were often problematic:

Judicial discretion is fundamental to sentencing in Canada… Judicial sentencing discretion is also key to the public’s confidence in the criminal justice system. Unfit sentences — whether because they are too severe or too lenient — “could cause the public to question the credibility of the system in light of its objectives”…

Mandatory minimum sentences can sometimes be inconsistent with the principle that sentences should be proportionate to the gravity of the offence and the degree of responsibility of the offender. Mandatory minimums shift the focus of sentencing away from the particular offender’s circumstances, and instead prioritise denunciation, general deterrence and retribution. As a result, “[t]hey may, in extreme cases, impose unjust sentences”.

However, the minority also argued that:

[Mandatory minimums] do not, in and of themselves, impose cruel and unusual punishment…

Mandatory minimums are “a forceful expression of governmental policy in the area of criminal law”. As such, Parliament is owed substantial deference in crafting mandatory minimum sentences. It is only on “rare and unique occasions” that a minimum sentence will infringe s 12 of the Canadian Charter of Rights and Freedoms, as the test for infringing s 12 is “very properly stringent and demanding”.

Reviewing the legislation, the minority came to the opinion that:

This is a very narrow and tailored mandatory minimum sentence… carefully tailored to catch only harmful and highly blameworthy conduct.

Accordingly, they said, the regime was not unconstitutional, and should be allowed to stand.

Principle of fundamental justice?

An interesting aspect of both the majority and minority judgments was the acceptance that ‘proportionality in sentencing’ was not a ‘principle of fundamental justice’, as protected by section 7 of the Charter:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The minority did not spell out its reasoning, but the majority’s reasoning appeared to be that accepting such an argument would involve undermining the high standard required for breaches of section 12; in other words, it would make it easier to invalidate laws as unconstitutional, because the bar would be lower:

Mr. Lloyd’s proposal would set a new constitutional standard for sentencing laws — a standard that is lower than the cruel and unusual punishment standard prescribed by s 12.

The majority also pointed out that:

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.

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…

Thus, ‘proportionality in sentencing’ was not a principle of fundamental justice.

Mandatory sentencing and the rule of law

The Institute has long opposed mandatory sentencing regimes of all kinds, on the grounds that proportionality and judicial independence in sentencing are important planks of the rule of law, and undermining them inevitably undermines both the efficacy of the justice system – when defendants choose to contest charges in an effort to avoid serious jail time – and the fairness of the justice system – when judges are not able to take into account the circumstances of the offender in front of them, and are forced to impose unjust punishments.

This Canadian case is an interesting example of overseas approaches to mandatory sentencing. Both the majority and minority judgments identify the key problems with mandatory sentencing regimes, and differ only in their interpretation of this particular regime.

The Supreme Court’s warnings about the potentially “grossly disproportionate” punishments that can be imposed in a mandatory sentencing regime, and their classification as ‘cruel and unusual punishment’ ought to be required reading for Australian politicians anxious to sound the ‘law and order’ alarm during their election campaigns.


— William Shrubb

Further reading

R v Lloyd, the Court’s judgment

Respect the rule of law‘, Peter MacKay, National Post

Peter MacKay’s Misuse of the Rule of Law‘, Naomi Sayers, Huffington Post

Getting Justice Wrong‘, paper by Institute Governing Committee member Professor Nicholas Cowdery

Mandatory Sentencing‘, Institute case study page

Mandatory Sentencing media mash-up‘, Institute Education Coordinator Jackie Charles