The below recent decision by the British Columbia Court of Appeal will no doubt be read with interest by Canadian judges, but judges in the United States should also read this decision and reflect as to why similar approaches to the law do not occur in the United States.

The U.S. has a problem with mass incarceration — and like it or not, judges are a big reason as to why the U.S. has such a high incarceration rate. True, there are legislative mandatory minimums, so the blame can be shared, but being a “co-defendant” in a mass incarceration epidemic is hardly a courageous position to be in. 

In R. v. Dickey, 2016 BCCA 177, April 25, 2016, the accused were charged with the offences of trafficking and possession for the purpose of trafficking, contrary to section 5(3) of the Controlled Drugs and Substances Act. The offences were committed in a public place usually frequented by persons under the age of 18 years or by using the services of a person under the age of 18 years or with the involvement of such a person. 

Sections 5(3)(a)(ii)(A) and (C) of Controlled Drugs and Substances Act provide for a minimum two-year prison sentence when an offence is committed in or near a school, on or near school grounds, or in or near any other public place usually frequented by persons under the age of 18 years; or using the services of, or involving, such a person.

At their sentence hearings, the accused argued that this minimum sentence contravened section 12 of the Charter and constituted cruel and unusual treatment. In each case, the sentencing judge agreed and held that the provision of the Controlled Drugs and Substances Act which require the imposition of a minimum prison sentence infringed section 12 of the Charter, by virtue of section 52 of the Constitution Act, 1982, were of no force or effect, and were not saved by s. 1.

The Crown appealed.  The appeals were dismissed.  The British Columbia Court of Appeal concluded that “in some circumstances, s. 5(3)(a)(ii)(A) and (C) would constitute cruel and unusual punishment and accordingly infringe s. 12 of the Charter because a minimum two-year prison sentence would be grossly disproportionate to an appropriate sentencing disposition.  They would do so in a way that cannot be demonstrably justified in a free and democratic society such that they are of no force or effect” (at paragraph 11).

THE COURT OF APPEAL’S DECISION:

The British Columbia Court of Appeal noted that the Supreme Court of Canada held in R. v. Nur that “a sentence which constitutes cruel and unusual punishment is one that is grossly disproportionate to the punishment that is appropriate having regard for the nature of the offence and the circumstances of the offender.”  The Court of Appeal described the test to be applied in considering the constitutionality of the provisions in issue being the following (at paragraph 27):

It follows that, in considering whether the minimum two-year prison sentence for which s. 5(3)(a)(ii)(A) and (C) of the Act provide infringes s. 12 as being cruel and unusual punishment, it is necessary to determine whether in each instance the sentence is a punishment that is grossly disproportionate to the proportional sentence that is appropriate for the offender, or a reasonably foreseeable hypothetical offender. This entails a two-step process: first, an appropriate sentence must be determined having regard for the objectives and principles of sentencing provided in the Criminal Code; and then, it must be determined whether the minimum prison sentence requires the imposition of a sentence that is not merely excessive, but grossly disproportionate to the appropriate sentence. If it does, the punishment infringes s. 12 and the sentence cannot be imposed unless demonstrably justified under s. 1.

R. v. Dickey-Section 5(3)(a)(ii)(A) (committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years):

The Court of Appeal concluded that in Dickey a sentence of six months imprisonment was appropriate. They concluded that the imposition of the minimum two year sentence would infringe section 12 of the Charter (at paragraph 68):

The imposition of a two-year prison sentence in a federal penitentiary would not only be a disproportionate punishment, but one that would be grossly so if imposed on Dickey (and more so on a younger hypothetical offender) when compared to an appropriate sentence.  In determining whether a minimum sentence is grossly disproportionate, the comparison of the appropriate sentence and the statutory minimum sentence to be imposed would seem to always be the first consideration, as it was in Nur.  There are contextual factors to consider that may have a bearing on the determination in any given instance, but there would appear to be none that would render a minimum two-year prison sentence for Dickey other than grossly disproportionate.  As the judge concluded, it does infringe s. 12 of the Charter.

The Court of Appeal concluded that “while the section has a pressing and substantial objective, being the protection of young people from the drug trade, it cannot be said that it is proportional to that objective because, while there may be a rational connection to what are the penological objectives of denunciation and deterrence, the section does not constitute a minimal impairment of the right infringed and the deleterious and salutary effects of it are not proportional” (at paragraph 73). 

R. v. Bradley-Luscombe-Section 5(3)(a)(ii)(C) (used the services of a person under the age of 18 years, or involved such a person, in committing the offence):

The Court of Appeal concluded that in Bradley-Luscombe a sentence of eight months imprisonment was appropriate. They concluded that the imposition of the minimum two year sentence would infringe section 12 of the Charter (at paragraphs 114 to 116):

The circumstances would not have been rendered less exceptional if one of the offender’s children had been 17 years of age and the offender had in some minimal way involved him or her in the possession of the small amount of the drug that was the subject of the guilty plea.  It would indeed be difficult to say that, having regard for the offender’s medical condition in particular, sentencing him to two years to be served in a federal penitentiary would not, in the circumstances, have been a grossly disproportionate punishment.

Clearly, in the same way s. 5(3)(a)(ii)(A) infringes s. 12 of the Charter, so too does s. 5(3)(a)(ii)(C).

The second question arising is then whether s. 5(3)(a)(ii)(C) can be said to be demonstrably justifiable under s. 1.  It cannot for the same reason s. 5(3)(a)(ii)(A) cannot: the section is not proportional to its penological objectives because, while there may be a rational connection to them, the section does not constitute a minimal impairment of the right infringed – there is no exception for exceptional circumstances – and the deleterious and salutary effects are not proportionate.


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