SUPREME COURT OF CANADA Case name: Daniels v. Canada (Indian Affairs and Northern Development) Collection: Supreme Court Judgments Date: 2016-04-14 Neutral citation: 2016 SCC 12 Case number: 35945 Judges: McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell On appeal from: Federal Court of Appeal Subjects: Constitutional law Notes: SCC Case Information: 35945 copy

Case name: Daniels v. Canada (Indian Affairs and Northern Development)
Collection: Supreme Court Judgments
Date: 2016-04-14
Neutral citation: 2016 SCC 12
Case number: 35945
Judges: McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from: Federal Court of Appeal
Subjects: Constitutional law
Notes: SCC Case Information: 35945



SUPREME COURT OF CANADA

Citation: Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12
Appeal heard: October 8, 2015
Judgment rendered: April 14, 2016
Docket: 35945

Between:
Harry Daniels, Gabriel Daniels, Leah Gardner,
Terry Joudrey and Congress of Aboriginal Peoples
Appellants/Respondents on cross-appeal
and
Her Majesty the Queen as represented by the
Minister of Indian Affairs and Northern Development and
Attorney General of Canada
Respondents/Appellants on cross-appeal
- and -
Attorney General for Saskatchewan, Attorney General of Alberta,
Native Council of Nova Scotia, New Brunswick Aboriginal Peoples Council,
Native Council of Prince Edward Island, Metis Settlements General Council,
Te’mexw Treaty Association, Métis Federation of Canada,
Aseniwuche Winewak Nation of Canada, Chiefs of Ontario,
Gift Lake Métis Settlement, Native Alliance of Quebec,
Assembly of First Nations and Métis National Council
Interveners


Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Reasons for Judgment:
(paras. 1 to 58)
Abella J. (McLachlin C.J. and Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.







daniels v. canada (indian affairs and northern development)


Harry Daniels, Gabriel Daniels,
Leah Gardner, Terry Joudrey and
Congress of Aboriginal Peoples Appellants/Respondents on cross‑appeal


v.


Her Majesty The Queen
as represented by the
Minister of Indian Affairs and
Northern Development and
Attorney General of Canada Respondents/Appellants on cross‑appeal


and


Attorney General for Saskatchewan,
Attorney General of Alberta,
Native Council of Nova Scotia,
New Brunswick Aboriginal Peoples Council,
Native Council of Prince Edward Island,
Metis Settlements General Council,
Te’mexw Treaty Association,
Métis Federation of Canada,
Aseniwuche Winewak Nation of Canada,
Chiefs of Ontario,
Gift Lake Métis Settlement,
Native Alliance of Quebec,
Assembly of First Nations and
Métis National Council Interveners


Indexed as: Daniels v. Canada (Indian Affairs and Northern Development)


2016 SCC 12


File No.: 35945.


2015: October 8; 2016: April 14.


Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.


on appeal from the federal court of appeal


Constitutional law — Aboriginal law — Métis — Non‑status Indians — Whether declaration should be issued that Métis and non‑status Indians are “Indians” under s. 91(24) of Constitution Act, 1867 — Whether declaration would have practical utility — Whether, for purposes of s. 91(24), Métis should be restricted to definitional criteria set out in R. v. Powley, [2003] 2 S.C.R. 207 — Constitution Act, 1867, s. 91(24) — Constitution Act, 1982, s. 35.


Three declarations are sought in this case: (1) that Métis and non‑status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867; (2) that the federal Crown owes a fiduciary duty to Métis and non‑status Indians; and (3) that Métis and non‑status Indians have the right to be consulted and negotiated with.


The trial judge’s conclusion was that “Indians” under s. 91(24) is a broad term referring to all Indigenous peoples in Canada. He declined, however, to grant the second and third declarations. The Federal Court of Appeal accepted that “Indians” in s. 91(24) included all Indigenous peoples generally. It upheld the first declaration, but narrowed its scope to exclude non‑status Indians and include only those Métis who satisfied the three criteria from R. v. Powley, [2003] 2 S.C.R. 207. It also declined to grant the second and third declarations. The appellants sought to restore the first declaration as granted by the trial judge, and asked that the second and third declarations be granted. The Crown cross‑appealed, arguing that none of the declarations should be granted. It conceded that non‑status Indians are “Indians” under s. 91(24).


Held: The first declaration should be granted: Métis and non‑status Indians are “Indians” under s. 91(24). The appeal should therefore be allowed in part. The Federal Court of Appeal’s conclusion that the first declaration should exclude non‑status Indians or apply only to those Métis who meet the Powley criteria, should be set aside, and the trial judge’s decision restored. The trial judge’s and Federal Court of Appeal’s decision not to grant the second and third declarations should be upheld. The cross‑appeal should be dismissed.


A declaration can only be granted if it will have practical utility, that is, if it will settle “a live controversy” between the parties. The first declaration, whether non‑status Indians and Métis are “Indians” under s. 91(24), would have enormous practical utility for these two groups who have found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution. A declaration would guarantee both certainty and accountability. Both federal and provincial governments have, alternately, denied having legislative authority over non‑status Indians and Métis. This results in these Indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences. While finding Métis and non‑status Indians to be “Indians” under s. 91(24) does not create a duty to legislate, it has the undeniably salutary benefit of ending a jurisdictional tug‑of‑war.


There is no need to delineate which mixed‑ancestry communities are Métis and which are non‑status Indians. They are all “Indians” under s. 91(24) by virtue of the fact that they are all Aboriginal peoples. “Indians” has long been used as a general term referring to all Indigenous peoples, including mixed‑ancestry communities like the Métis. Before and after Confederation, the government frequently classified Aboriginal peoples with mixed European and Aboriginal heritage as Indians. Historically, the purpose of s. 91(24) in relation to the broader goals of Confederation also indicates that since 1867, “Indians” meant all Aboriginal peoples, including Métis.


As well, the federal government has at times assumed that it could legislate over Métis as “Indians”, and included them in other exercises of federal authority over “Indians”, such as sending many Métis to Indian Residential Schools — a historical wrong for which the federal government has since apologized. Moreover, while it does not define the scope of s. 91(24), s. 35 of the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution. This Court has noted that ss. 35 and 91(24) should be read together. “Indians” in the constitutional context, therefore, has two meanings: a broad meaning, as used in s. 91(24), that includes both Métis and Inuit and can be equated with the term “aboriginal peoples of Canada” used in s. 35, and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples. It would be constitutionally anomalous for the Métis to be the only Aboriginal people to be recognized and included in s. 35 yet excluded from the constitutional scope of s. 91(24).


The jurisprudence also supports the conclusion that Métis are “Indians” under s. 91(24). It demonstrates that intermarriage and mixed‑ancestry do not preclude groups from inclusion under s. 91(24). The fact that a group is a distinct people with a unique identity and history whose members self‑identify as separate from Indians, is not a bar to inclusion within s. 91(24). Determining whether particular individuals or communities are non‑status Indians or Métis and therefore “Indians” under s. 91(24), is a fact‑driven question to be decided on a case‑by‑case basis in the future.


As to whether, for purposes of s. 91(24), Métis should be restricted to the three definitional criteria set out in Powley in accordance with the decision of the Federal Court of Appeal, or whether the membership base should be broader, there is no principled reason for presumptively and arbitrarily excluding certain Métis from Parliament’s protective authority on the basis of the third criterion, a “community acceptance” test. The criteria in Powley were developed specifically for purposes of applying s. 35, which is about protecting historic community‑held rights. Section 91(24) serves a very different constitutional purpose. The constitutional changes, the apologies for historic wrongs, a growing appreciation that Aboriginal and non‑Aboriginal people are partners in Confederation, as well as the Report of the Royal Commission on Aboriginal Peoples and the Final Report of the Truth and Reconciliation Commission of Canada, all indicate that reconciliation with all of Canada’s Aboriginal peoples is Parliament’s goal.


The historical, philosophical, and linguistic contexts establish that “Indians” in s. 91(24) includes all Aboriginal peoples, including non‑status Indians and Métis. The first declaration should accordingly be granted.


Federal jurisdiction over Métis and non‑status Indians does not mean that all provincial legislation pertaining to Métis and non‑status Indians is inherently ultra vires. As this Court has recognized, courts should favour, where possible, the operation of statutes enacted by both levels of government.


Cases Cited


Distinguished: R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; considered: Reference as to whether “Indians” in s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, [1939] S.C.R. 104; Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170; referred to: Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Solosky v. The Queen, [1980] 1 S.C.R. 821; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; R. v. Sparrow, [1990] 1 S.C.R. 1075; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; Reference re Same‑Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257.


Statutes and Regulations Cited


Act further to amend The Indian Act, S.C. 1894, c. 32.


Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, S.C. 1868, c. 42.


Act to amend the Indian Act, S.C. 1958, c. 19.


Canadian Bill of Rights, S.C. 1960, c. 44.


Canadian Charter of Rights and Freedoms, s. 15.


Constitution Act, 1867, s. 91(24).


Constitution Act, 1982, ss. 35, 37, 37.1.


Game and Fish Act, R.S.O. 1990, c. G.1.


Indian Act, R.S.C. 1970, c. I‑6, s. 43.


Indian Act, R.S.C. 1985, c. I‑5.


Indian Act, 1876, S.C. 1876, c. 18.


Manitoba Act, 1870, S.C. 1870, c. 3 (reprinted in R.S.C. 1985, App. II, No. 8).


Metis Settlements Act, R.S.A. 2000, c. M‑14.


Authors Cited


Bell, Catherine. “Who are the Metis People in Section 35(2)?” (1991), 29 Alta. L. Rev. 351.


Borrows, John. Canada’s Indigenous Constitution. Toronto: University of Toronto Press, 2010.


Canada. Commission to Inquire into the Matters of Membership in the Indian Bands in Lesser Slave Lake Agency. Report of Mr. Justice W.A. Macdonald Following an Enquiry Directed Under Section 18 of the Indian Act, August 1944 (online: http://epe.lac‑bac.gc.ca/100/200/301/pco‑bcp/commissions‑ef/macdonald1947‑eng/macdonald1947‑eng.htm).


Canada. Department of Indian Affairs and Northern Development, Intergovernmental Affairs, Corporate Policy. Natives and the Constitution — Background and Discussion Paper. August 1980.


Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the Relationship. Ottawa: The Commission, 1996.


Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, vol. 3, Gathering Strength. Ottawa: The Commission, 1996.


Canada. Truth and Reconciliation Commission. The Final Report of the Truth and Reconciliation Commission of Canada, vol. 3, Canada’s Residential Schools: The Métis Experience. Montréal: McGill‑Queen’s University Press, 2015.


Canada. Truth and Reconciliation Commission. Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Winnipeg: The Commission, 2015.


Chartier, Clem. “‘Indian’: An Analysis of the Term as Used in Section 91(24) of the British North America Act, 1867” (1978‑79), 43 Sask. L. Rev. 37.


Gaffney, R. E., G. P. Gould and A. J. Semple. Broken Promises: The Aboriginal Constitutional Conferences. Fredericton: New Brunswick Association of Metis and Non‑Status Indians, 1984.


Great Britain. House of Commons. Select Committee on the Hudson’s Bay Company. Report from the Select Committee on the Hudson’s Bay Company; Together with the Proceedings of the Committee, Minutes of Evidence, Appendix and Index. London: HMSO, 1858.


Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Carswell, 2007 (updated 2015, release 1).


King, Thomas. The Inconvenient Indian: A Curious Account of Native People in North America. Toronto: Anchor Canada, 2013.


Lyon, Noel. “Constitutional Issues in Native Law”, in Bradford W. Morse, ed., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, rev. 1st ed. Ottawa: Carleton University Press, 1989, 408.


Magnet, Joseph Eliot. “Who are the Aboriginal People of Canada?”, in Dwight A. Dorey and Joseph Eliot Magnet, eds., Aboriginal Rights Litigation. Markham, Ont.: LexisNexis Butterworths, 2003, 23.


Stevenson, Mark. “Section 91(24) and Canada’s Legislative Jurisdiction with Respect to the Métis” (2002), 1 Indigenous L.J. 237.


APPEAL and CROSS‑APPEAL from a judgment of the Federal Court of Appeal (Noël, Dawson and Trudel JJ.A.), 2014 FCA 101, [2014] 4 F.C.R. 97, 371 D.L.R. (4th) 725, 457 N.R. 347, [2014] 3 C.N.L.R. 139, 309 C.R.R. (2d) 200, [2014] F.C.J. No. 383 (QL), 2014 CarswellNat 1076 (WL Can.), setting aside in part a decision of Phelan J., 2013 FC 6, [2013] 2 F.C.R. 268, 357 D.L.R. (4th) 47, 426 F.T.R. 1, [2013] 2 C.N.L.R. 61, [2013] F.C.J. No. 4 (QL), 2013 CarswellNat 8 (WL Can.). Appeal allowed in part and cross‑appeal dismissed.


Joseph Eliot Magnet, Andrew K. Lokan and Lindsay Scott, for the appellants/respondents on cross‑appeal.


Mark R. Kindrachuk, Q.C., Christopher M. Rupar and Shauna K. Bedingfield, for the respondents/appellants on cross‑appeal.


P. Mitch McAdam, Q.C., for the intervener the Attorney General for Saskatchewan.


Angela Edgington and Neil Dobson, for the intervener the Attorney General of Alberta.


Written submissions only by D. Bruce Clarke, Q.C., for the interveners the Native Council of Nova Scotia, the New Brunswick Aboriginal Peoples Council and the Native Council of Prince Edward Island.


Garry Appelt and Keltie Lambert, for the intervener the Metis Settlements General Council.


Written submissions only by Robert J. M. Janes and Elin R. S. Sigurdson, for the intervener the Te’mexw Treaty Association.


Christopher G. Devlin, John Gailus and Cynthia Westaway, for the intervener the Métis Federation of Canada.


Karey M. Brooks and Claire Truesdale, for the intervener the Aseniwuche Winewak Nation of Canada.


Scott Robertson, for the intervener the Chiefs of Ontario.


Paul Seaman and Maxime Faille, for the intervener the Gift Lake Métis Settlement.


Marc Watters and Lina Beaulieu, for the intervener the Native Alliance of Quebec.


Guy Régimbald and Jaimie Lickers, for the intervener the Assembly of First Nations.


Jason T. Madden, Clément Chartier, Q.C., Kathy Hodgson‑Smith and Marc Leclair, for the intervener the Métis National Council.





The judgment of the Court was delivered by

Abella J. —


[1] As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought. Many revelations have resulted in good faith policy and legislative responses, but the list of disadvantages remains robust. This case represents another chapter in the pursuit of reconciliation and redress in that relationship.


Background


[2] Three declarations were sought by the plaintiffs when this litigation was launched in 1999:


1. That Métis and non-status Indians are “Indians” under s. 91(24);


2. That the federal Crown owes a fiduciary duty to Métis and non-status Indians; and


3. That Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples.





[3] Section 91(24) of the Constitution Act, 1867 states that


91. . . . it is hereby declared that . . . the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated . . .

. . .

24. Indians, and Lands reserved for the Indians.


[4] The trial judge, Phelan J., made a number of key factual findings in his thoughtful and thorough reasons.[1] As early as 1818, the government used “Indian” as a general term to refer to communities of mixed Aboriginal and European background. The federal government considered Métis to be “Indians” in various treaties and pre-Confederation statutes, and considered Métis to be “Indians” under s. 91(24) in various statutes and policy initiatives spanning from Confederation to modern day. Moreover, the purpose of s. 91(24) was closely related to the expansionist goals of Confederation. The historical and legislative evidence shows that expanding the country across the West was one of the primary goals of Confederation. Building a national railway was a key component of this plan.


[5] Accordingly, the purposes of s. 91(24) were “to control Native people and communities where necessary to facilitate development of the Dominion; to honour the obligations to Natives that the Dominion inherited from Britain . . . [and] eventually to civilize and assimilate Native people” (para. 353). Since much of the North-Western territory was occupied by Métis, only a definition of “Indians” in s. 91(24) that included “a broad range of people sharing a Native hereditary base” (para. 566) would give Parliament the necessary authority to pursue its agenda.


[6] His conclusion was that in its historical, philosophical, and linguistic contexts, “Indians” under s. 91(24) is a broad term referring to all Indigenous peoples in Canada, including non-status Indians and Métis.


[7] He found that since neither the federal nor provincial governments acknowledged that they had jurisdiction over Métis and non-status Indians, the declaration would alleviate the constitutional uncertainty and the resulting denial of material benefits. There was therefore practical utility to the first declaration being granted, namely, that Métis and non-status Indians are included in what is meant by “Indians” in s. 91(24). He did not restrict the definition of either group.


[8] He declined, however, to grant the second and third declarations on the grounds that they were vague and redundant. It was already well established in Canadian law that the federal government was in a fiduciary relationship with Canada’s Aboriginal peoples and that the federal government had a duty to consult and negotiate with them when their rights were engaged. Restating this in declarations would be of no practical utility.


[9] The Federal Court of Appeal accepted the trial judge’s findings of fact, including that “Indians” in s. 91(24) included all Indigenous peoples generally. It therefore upheld the trial judge’s decision to grant the first declaration, but narrowed its scope to exclude non-status Indians and include only those Métis who satisfied the three criteria from R. v. Powley, [2003] 2 S.C.R. 207. While it was of the view that non-status Indians were clearly “Indians”, setting this out in a declaration would be redundant and of no practical usefulness. For the same reasons as the trial judge, it declined to grant the second and third declarations.


[10] Before this Court, the appellants sought to restore the first declaration as granted by the trial judge, not as restricted by the Federal Court of Appeal. In addition, they asked that the second and third declarations be granted. The Crown cross-appealed, arguing that none of the declarations should be granted. For the following reasons, I agree generally with the trial judge.


Analysis


[11] This Court most recently restated the applicable test for when a declaration should be granted in Canada (Prime Minister) v. Khadr, [2010] 1 S.C.R. 44. The party seeking relief must establish that the court has jurisdiction to hear the issue, that the question is real and not theoretical, and that the party raising the issue has a genuine interest in its resolution. A declaration can only be granted if it will have practical utility, that is, if it will settle a “live controversy” between the parties: see also Solosky v. The Queen, [1980] 1 S.C.R. 821; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.


[12] The first disputed issue in this case is whether the declarations would have practical utility. There can be no doubt, in my respectful view, that granting the first declaration meets this threshold. Delineating and assigning constitutional authority between the federal and provincial governments will have enormous practical utility for these two groups who have, until now, found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution.


[13] Both federal and provincial governments have, alternately, denied having legislative authority over non-status Indians and Métis. As the trial judge found, when Métis and non-status Indians have asked the federal government to assume legislative authority over them, it tended to respond that it was precluded from doing so by s. 91(24). And when Métis and non-status Indians turned to provincial governments, they were often refused on the basis that the issue was a federal one.


[14] This results in these Indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences, as was recognized by Phelan J.:


One of the results of the positions taken by the federal and provincial governments and the “political football — buck passing” practices is that financially [Métis and non-status Indians] have been deprived of significant funding for their affairs. . . .

. . . the political/policy wrangling between the federal and provincial governments has produced a large population of collaterally damaged [Métis and non-status Indians]. They are deprived of programs, services and intangible benefits recognized by all governments as needed. [paras. 107-8]


See also Lovelace v. Ontario, [2000] 1 S.C.R. 950, at para. 70.


[15] With federal and provincial governments refusing to acknowledge jurisdiction over them, Métis and non-status Indians have no one to hold accountable for an inadequate status quo. The Crown’s argument, however, was that since a finding of jurisdiction under s. 91(24) does not create a duty to legislate, it is inappropriate to answer a jurisdictional question in a legislative vacuum. It is true that finding Métis and non-status Indians to be “Indians” under s. 91(24) does not create a duty to legislate, but it has the undeniably salutary benefit of ending a jurisdictional tug-of-war in which these groups were left wondering about where to turn for policy redress. The existence of a legislative vacuum is self-evidently a reflection of the fact that neither level of government has acknowledged constitutional responsibility. A declaration would guarantee both certainty and accountability, thereby easily reaching the required jurisprudential threshold of offering the tangible practical utility of the resolution of a longstanding jurisdictional dispute.


[16] We are left then to determine whether Métis and non-status Indians are in fact included in the scope of s. 91(24).


[17] There is no consensus on who is considered Métis or a non-status Indian, nor need there be. Cultural and ethnic labels do not lend themselves to neat boundaries. ‘Métis’ can refer to the historic Métis community in Manitoba’s Red River Settlement or it can be used as a general term for anyone with mixed European and Aboriginal heritage. Some mixed-ancestry communities identify as Métis, others as Indian:


There is no one exclusive Metis People in Canada, anymore than there is no one exclusive Indian people in Canada. The Metis of eastern Canada and northern Canada are as distinct from Red River Metis as any two peoples can be. . . . As early as 1650, a distinct Metis community developed in LeHeve [sic], Nova Scotia, separate from Acadians and Micmac Indians. All Metis are aboriginal people. All have Indian ancestry.


(R. E. Gaffney, G. P. Gould and A. J. Semple, Broken Promises: The Aboriginal Constitutional Conferences (1984), at p. 62, quoted in Catherine Bell, “Who are the Metis People in Section 35(2)?” (1991), 29 Alta. L. Rev. 351, at p. 356.)


[18] The definitional contours of ‘non-status Indian’ are also imprecise. Status Indians are those who are recognized by the federal government as registered under the Indian Act, R.S.C. 1985, c. I-5. Non-status Indians, on the other hand, can refer to Indians who no longer have status under the Indian Act, or to members of mixed communities which have never been recognized as Indians by the federal government. Some closely identify with their Indian heritage, while others feel that the term Métis is more reflective of their mixed origins.


[19] These definitional ambiguities do not preclude a determination into whether the two groups, however they are defined, are within the scope of s. 91(24). I agree with the trial judge and Federal Court of Appeal that the historical, philosophical, and linguistic contexts establish that “Indians” in s. 91(24) includes all Aboriginal peoples, including non-status Indians and Métis.


[20] To begin, it is unnecessary to explore the question of non-status Indians in a full and separate analysis because the Crown conceded in oral argument, properly in my view, that they are recognized as “Indians” under s. 91(24), a concession that reflects the fact that the federal government has used its authority under s. 91(24) in the past to legislate over non-status Indians as “Indians”.[2] While a concession is not necessarily determinative, it does not, on the other hand, make the granting of a declaration redundant, as the Crown suggests. Non-status Indians have been a part of this litigation since it started in 1999. Earlier in these proceedings, the Crown took the position that non-status Indians did not fall within federal jurisdiction under s. 91(24). As the intervener Aseniwuche Winewak Nation of Canada submitted in oral argument, excluding non-status Indians from the first declaration would send them “back to the drawing board”. To avoid uncertainty in the future, therefore, there is demonstrable utility in a declaration that confirms their inclusion.


[21] We are left then to consider primarily whether the Métis are included.


[22] The prevailing view is that Métis are “Indians” under s. 91(24). Prof. Hogg, for example, sees the word “Indians” under s. 91(24) as having a wide compass, likely including the Métis:


The Métis people, who originated in the west from intermarriage between French Canadian men and Indian women during the fur trade period, received “half-breed” land grants in lieu of any right to live on reserves, and were accordingly excluded from the charter group from whom Indian status devolved. However, they are probably “Indians” within the meaning of s. 91(24).


(Peter W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 28-4)


See also Joseph Eliot Magnet, “Who are the Aboriginal People of Canada?”, in Dwight A. Dorey and Joseph Eliot Magnet, eds., Aboriginal Rights Litigation (2003), 23, at p. 44; Clem Chartier, “‘Indian’: An Analysis of the Term as Used in Section 91(24) of the British North America Act, 1867” (1978-79), 43 Sask. L. Rev. 37; Mark Stevenson, “Section 91(24) and Canada’s Legislative Jurisdiction with Respect to the Métis” (2002), 1 Indigenous L.J. 237; Noel Lyon, “Constitutional Issues in Native Law”, in Bradford W. Morse, ed., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (rev. 1st ed. 1989), 408, at p. 430.


[23] In fact, “Indians” has long been used as a general term referring to all Indigenous peoples, including mixed-ancestry communities like the Métis. The term was created by European settlers and applied to Canada’s Aboriginal peoples without making any distinction between them. As author Thomas King explains in The Inconvenient Indian:[3]


No one really believed that there was only one Indian. No one ever said there was only one Indian. But as North America began to experiment with its ‘Indian programs,’ it did so with a ‘one size fits all’ mindset. Rather than see tribes as an arrangement of separate nation states in the style of the Old World, North America imagined that Indians were basically the same. [p. 83]


[24] Before and after Confederation, the government frequently classified Aboriginal peoples with mixed European and Aboriginal heritage as Indians. Métis were considered “Indians” for pre-Confederation treaties such as the Robinson Treaties of 1850. Many post-Confederation statutes considered Métis to be “Indians”, including the 1868 statute entitled An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, c. 42.


[25] Historically, the purpose of s. 91(24) in relation to the broader goals of Confederation also indicates that since 1867, “Indians” meant all Aboriginal peoples, including Métis. The trial judge found that expanding British North America across Rupert’s Land and the North-West Territories was a major goal of Confederation and that building a national railway was a key component of this plan. At the time, that land was occupied by a large and diverse Aboriginal population, including many Métis. A good relationship with all Aboriginal groups was required to realize the goal of building “the railway and other measures which the federal government would have to take.” With jurisdiction over Aboriginal peoples, the new federal government could “protect the railway from attack” and ensure that they did not resist settlement or interfere with construction of the railway. Only by having authority over all Aboriginal peoples could the westward expansion of the Dominion be facilitated.


[26] The work of Prof. John Borrows supports this theory:


The Métis Nation was . . . crucial in ushering western and northern Canada into Confederation and in increasing the wealth of the Canadian nation by opening up the prairies to agriculture and settlement. These developments could not have occurred without Métis intercession and legal presence.


(Canada’s Indigenous Constitution (2010), at pp. 87-88)


In his view, it would have been impossible for Canada to accomplish its expansionist agenda if “Indians” under s. 91(24) did not include Métis. The threat they posed to Canada’s expansion was real. On many occasions Métis “blocked surveyors from doing their work” and “prevented Canada’s expansion into the region” when they were unhappy with the Canadian government: Borrows, at p. 88.


[27] In fact, contrary to its position in this case, the federal government has at times assumed that it could legislate over Métis as “Indians”. The 1876 Indian Act[4] banned the sale of intoxicating liquor to “Indians”. In 1893 the North-West Mounted Police wrote to the federal government, expressing their difficulty in distinguishing between “Half-breeds and Indians in prosecutions for giving liquor to the latter”. To clarify this issue, the federal government amended the Indian Act[5] in 1894 to broaden the ban on the sale of intoxicating liquor to Indians or any person “who follows the Indian mode of life”, which included Métis.


[28] In October 1899, Indian Affairs Minister Clifford Sifton wrote a memorandum that would become the basis of the federal government’s policy regarding Métis and Indian Residential Schools for decades. He wrote that “I am decidedly of the opinion that all children, even those of mixed blood . . . should be eligible for admission to the schools”: The Final Report of the Truth and Reconciliation Commission of Canada, vol. 3, The Métis Experience (2015), at p. 16. This policy was applied haphazardly. Provincial public school systems were reluctant to admit Métis students, as the provinces saw them as a federal responsibility: p. 26. Many Métis attended Residential Schools because they were the only educational option open to them.


[29] In some cases, the federal government directly financed these projects. In the 1890s, the federal government provided funding for a reserve and industrial school at Saint-Paul-des-Métis in Alberta, run by Oblate missionaries: vol. 3, at p. 16. The reserve consisted of two townships, owned by the Crown, and included a school for teaching trades to the Métis. As long as the project lasted, it functioned equivalently to similar reserves for Indian peoples.


[30] Many Métis were also sent to Indian Residential Schools, another exercise of federal authority over “Indians”, as The Final Report of the Truth and Reconciliation Commission of Canada documents. According to the Report, “[t]he central goal of the Canadian Residential School system was to ‘Christianize’ and ‘civilize’ Aboriginal people . . . . In the government’s vision, there was no place for the Métis Nation”: vol. 3, at p. 3. The Report notes that


[t]he existing records make it impossible to say how many Métis children attended residential school. But they did attend almost every residential school discussed in this report at some point. They would have undergone the same experiences — the high death rates, limited diets, crowded and unsanitary housing, harsh discipline, heavy workloads, neglect, and abuse . . . [p. 4]


The federal government has since acknowledged and apologized for wrongs such as Indian Residential Schools.


[31] Moreover, throughout the early twentieth century, many Métis whose ancestors had taken scrip continued to live on Indian reserves and to participate in Indian treaties. In 1944 a Commission of Inquiry in Alberta was launched to investigate this issue, headed by Justice William Macdonald. He concluded that the federal government had the constitutional authority to allow these Métis to participate in treaties and recommended that the federal government take steps to clarify the status of these Métis with respect to treaties and reserves: Report of Mr. Justice W.A. Macdonald Following an Enquiry Directed Under Section 18 of the Indian Act (1944).


[32] Justice Macdonald noted that the federal government had been willing to recognize Métis as Indians whenever it was convenient to do so:


It would appear that whenever it became necessary or expedient to extinguish Indian rights in any specific territory, the fact that Halfbreeds also had rights by virtue of their Indian blood was invariably recognized.

. . .

. . . mixed blood did not necessarily establish white status, nor did it bar an individual from admission into treaty. The welfare of the individual and his own desires in the matter were given due weight, no cast-iron rule was adopted. [pp. 557-58]


In 1958, the federal government amended the Indian Act,[6] enacting Justice Macdonald’s recommendation that Métis who had been allotted scrip but were already registered as Indians (and their descendants), remain registered under the Indian Act, thereby clarifying their status with respect to treaties and reserves. In so legislating, the federal government appeared to assume that it had authority over Métis under s. 91(24).


[33] Not only has the federal government legislated over Métis as “Indians”, but it appears to have done so in the belief it was acting within its constitutional authority. In 1980, the Department of Indian Affairs and Northern Development wrote a document for Cabinet entitled Natives and the Constitution. This document clearly expressed the federal government’s confidence that it had constitutional authority to legislate over Métis under s. 91(24):


Métis people . . . are presently in the same legal position as other Indians who signed land cession treaties. Those Métis who have received scrip or lands are excluded from the provisions of the Indian Act, but are still “Indians” within the meaning of the BNA Act. . . .

Should a person possess “sufficient” racial and social characteristics to be considered a “native person”, that individual will be regarded as an “Indian” . . . within the legislative jurisdiction of the federal government, regardless of the fact that he or she may be excluded from the coverage of the Indian Act. [p.43]


[34] Moreover, while it does not define the scope of s. 91(24), it is worth noting that s. 35[7] of the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution. This Court recently explained that the “grand purpose” of s. 35 is “[t]he reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship”: Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, at para. 10. And in R. v. Sparrow, [1990] 1 S.C.R. 1075, this Court noted that ss. 35 and 91(24) should be read together: para. 62, cited in Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623, at para. 69.


[35] The term “Indian” or “Indians” in the constitutional context, therefore, has two meanings: a broad meaning, as used in s. 91(24), that includes both Métis and Inuit and can be equated with the term “aboriginal peoples of Canada” used in s. 35, and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples. As will be noted later in these reasons, this Court in Reference as to whether “Indians” in s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, [1939] S.C.R. 104 (“Re Eskimo”), held that s. 91(24) includes the Inuit. Since the federal government concedes that s. 91(24) includes non-status Indians, it would be constitutionally anomalous, as the Crown also conceded, for the Métis to be the only Aboriginal people to be recognized and included in s. 35 yet excluded from the constitutional scope of s. 91(24).


[36] The Report of the Royal Commission on Aboriginal Peoples, released in 1996, stressed the importance of rebuilding the Crown’s relationship with Aboriginal peoples in Canada, including the Métis: see vol. 3, Gathering Strength. The Report called on the federal government to “recognize that Métis people . . . are included in the federal responsibilities set out in section 91(24) of the Constitution Act, 1867”: vol. 2, Restructuring the Relationship, at p. 61. The importance of this reconstruction was also recognized in the final report of the Truth and Reconciliation Commission of Canada: Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), at p. 183; see also Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, at para. 1, and Lax Kw’alaams Indian Band v. Canada (Attorney General), [2011] 3 S.C.R. 535, at para. 12.


[37] The constitutional changes, the apologies for historic wrongs, a growing appreciation that Aboriginal and non-Aboriginal people are partners in Confederation, the Report of the Royal Commission on Aboriginal Peoples, and the Final Report of the Truth and Reconciliation Commission of Canada, all indicate that reconciliation with all of Canada’s Aboriginal peoples is Parliament’s goal.


[38] The jurisprudence also supports the conclusion that Métis are “Indians” under s. 91(24). There is no case directly on point, but by identifying which groups have already been recognized as “Indians” under this head of power and by establishing principles governing who can be considered “Indians”, the existing cases provide guidance.


[39] In Re Eskimo, this Court had to determine whether the Inuit were “Indians” under s. 91(24) of the Constitution Act, 1867. Relying on historical evidence to determine the meaning of “Indians” in 1867, the Court drew heavily from the 1858 Report from the Select Committee on the Hudson’s Bay Company. Acting on behalf of the federal government, the Hudson’s Bay Company had conducted a survey of Rupert’s Land and the North-Western territories in which the Inuit were classified as Indians. The Court found that while the Inuit had their own language, culture, and identities separate from that of the “Indian tribes” in other parts of the country, they were “Indians” under s. 91(24) on the basis of this survey. It follows from this case that a unique culture and history, and self-identification as a distinct group, are not bars to being included as “Indians” under s. 91(24).


[40] In Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170, this Court traced the outer limits of the “Indian” power under s. 91(24). An Indian couple lived on a reserve most of the year except for a few weeks each summer during which they lived off the reserve and the husband worked on a farm. The husband died during one of the weeks he was away from the reserve. This resulted in the superintendent in charge of the Indian district (which included their reserve) being appointed as administrator of his estate, pursuant to s. 43 of the Indian Act.[8] His wife challenged s. 43 on the grounds that it violated the Canadian Bill of Rights, S.C. 1960, c. 44. While the Court held that s. 43 of the Indian Act did not violate the Bill of Rights, Beetz J. concluded that in determining who are “Indians” under s. 91(24), “it would not appear unreasonable to count marriage and filiation and, unavoidably, intermarriages”: p. 207.


[41] These two cases left jurisprudential imprints that assist in deciding whether Métis are part of what is included in s. 91(24). As stated above, Canard shows that intermarriage and mixed-ancestry do not preclude groups from inclusion under s. 91(24). And Re Eskimo establishes that the fact that a group is a distinct people with a unique identity and history whose members self-identify as separate from Indians, is not a bar to inclusion within s. 91(24).


[42] There is no doubt that the Métis are a distinct people. Their distinctiveness was recognized in two recent cases from this Court — Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, [2011] 2 S.C.R. 670 and Manitoba Metis Federation. The issue in Cunningham was whether Alberta’s Metis Settlements Act, R.S.A. 2000, c. M-14, violated s. 15 of the Canadian Charter of Rights and Freedoms by terminating the membership of Métis who voluntarily registered as Indians under the Indian Act. The Court concluded that the Metis Settlements Act was justified as an ameliorative program. In commenting on the unique history of the Métis, the Court noted that they are “widely recognized as a culturally distinct Aboriginal people living in culturally distinct communities”: para. 7.


[43] And in Manitoba Metis Federation, this Court granted declaratory relief to the descendants of Manitoba’s Red River Métis Settlement. The federal Manitoba Act, 1870, S.C. 1870, c. 3, promised land to the children of the Métis. Errors and delays resulted in many of them receiving inadequate scrip rather than land. The Court held that Canada had a fiduciary relationship with the Métis, and that the Crown’s promise to implement the land grant engaged the honour of the Crown. This created a duty of diligent implementation. In so deciding, the Court stated that the Métis of the Red River Settlement are a “distinct community”: para. 91.


[44] The Crown, however, submits that including Métis as “Indians” under s. 91(24) is contrary to this Court’s decision in R. v. Blais, [2003] 2 S.C.R. 236. With respect, I think Blais can be easily distinguished. The issue in Blais was whether a provision of Manitoba’s Natural Resources Transfer Agreement, which allowed “Indians” to hunt out of season, included Métis. It is true that the Court concluded that “Indians” in the Natural Resources Transfer Agreement did not include Métis, but what was at issue was a constitutional agreement, not the Constitution. This, as this Court noted in Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698, is a completely different interpretive exercise:


. . . it is submitted that the intention of the framers should be determinative in interpreting the scope of the heads of power enumerated in ss. 91 and 92 given the decision in R. v. Blais, [2003] 2 S.C.R. 236, 2003 SCC 44. That case considered the interpretive question in relation to a particular constitutional agreement, as opposed to a head of power which must continually adapt to cover new realities. It is therefore distinguishable and does not apply here. [para. 30]


[45] While there was some overlapping evidence between Blais and this case, the interpretation of a different record in Blais directed at different issues cannot trump the extensive and significantly broader expert testimony and the findings of Phelan J. Of most significance, however, is the fact that this Court itself expressly stated in Blais that it was not deciding whether s. 91(24) included the Métis. Far from seeing Blais as dispositive of the constitutional scope of s. 91(24), the Court emphasized that it left “open for another day the question of whether the term ‘Indians’ in s. 91(24) of the Constitution Act, 1867 includes the Métis — an issue not before us in this appeal”: para. 36.


[46] A broad understanding of “Indians” under s. 91(24) as meaning ‘Aboriginal peoples’, resolves the definitional concerns raised by the parties in this case. Since s. 91(24) includes all Aboriginal peoples, including Métis and non-status Indians, there is no need to delineate which mixed-ancestry communities are Métis and which are non-status Indians. They are all “Indians” under s. 91(24) by virtue of the fact that they are all Aboriginal peoples.


[47] Determining whether particular individuals or communities are non-status Indians or Métis and therefore “Indians” under s. 91(24), is a fact-driven question to be decided on a case-by-case basis in the future, but it brings us to whether, for purposes of s. 91(24), Métis should be restricted to the definitional criteria set out in Powley in accordance with the decision of the Federal Court of Appeal, or whether, as the appellants and some of the interveners urged, the membership base should be broader.


[48] The issue in Powley was who is Métis under s. 35 of the Constitution Act, 1982. The case involved two Métis hunters who were charged with violating the Game and Fish Act, R.S.O. 1990, c. G.1. They claimed that the Métis had an Aboriginal right to hunt for food under s. 35(1). The Court agreed and suggested three criteria for defining who qualifies as Métis for purposes of s. 35(1):


1. Self-identification as Métis;


2. An ancestral connection to an historic Métis community; and


3. Acceptance by the modern Métis community.





[49] The third criterion — community acceptance — raises particular concerns in the context of this case. The criteria in Powley were developed specifically for purposes of applying s. 35, which is about protecting historic community-held rights: para. 13. That is why acceptance by the community was found to be, for purposes of who is included as Métis under s. 35, a prerequisite to holding those rights. Section 91(24) serves a very different constitutional purpose. It is about the federal government’s relationship with Canada’s Aboriginal peoples. This includes people who may no longer be accepted by their communities because they were separated from them as a result, for example, of government policies such as Indian Residential Schools. There is no principled reason for presumptively and arbitrarily excluding them from Parliament’s protective authority on the basis of a “community acceptance” test.


[50] The first declaration should, accordingly, be granted as requested. Non-status Indians and Métis are “Indians” under s. 91(24) and it is the federal government to whom they can turn.


[51] But federal jurisdiction over Métis and non-status Indians does not mean that all provincial legislation pertaining to Métis and non-status Indians is inherently ultra vires. This Court has recognized that courts “should favour, where possible, the ordinary operation of statutes enacted by both levels of government”: Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, at para. 37 (emphasis in original). Moreover, this Court has been clear that federal authority under s. 91(24) does not bar valid provincial schemes that do not impair the core of the “Indian” power: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, [2010] 2 S.C.R. 696, at para. 3.


[52] I agree, however, with both the trial judge and the Federal Court of Appeal that neither the second nor third declaration should be granted.


[53] The second declaration sought is to recognize that the Crown owes a fiduciary duty to Métis and non-status Indians. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 accepted that Canada’s Aboriginal peoples have a fiduciary relationship with the Crown and Manitoba Metis Federation accepted that such a relationship exists between the Crown and Métis. As a result, the declaration lacks practical utility because it is restating settled law.


[54] The third declaration sought is that Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples.


[55] The claim is that the First Ministers’ conferences anticipated by ss. 37 and 37.1 of the Constitution Act, 1982[9] did not yield the hoped-for results in identifying and defining Aboriginal rights. The subsequent lack of progress implies that the federal government has not fulfilled its constitutional obligations.


[56] However, Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, Tsilhqot’in Nation v. British Columbia, [2014] 2 S.C.R. 257, and Powley already recognize a context-specific duty to negotiate when Aboriginal rights are engaged. Because it would be a restatement of the existing law, the third declaration too lacks practical utility.


[57] For the foregoing reasons, while I agree with the Federal Court of Appeal and the trial judge that the second and third declarations should not be granted, I would restore the trial judge’s decision that the word “Indians” in s. 91(24) includes Métis and non-status Indians.


[58] The appeal is therefore allowed in part and the Federal Court of Appeal’s conclusion that the first declaration should exclude non-status Indians or apply only to those Métis who meet the Powley criteria, is set aside. It follows that the cross-appeal is dismissed. The appellants are entitled to their costs.








Appeal allowed in part and cross‑appeal dismissed, with costs.


Solicitors for the appellants/respondents on cross‑appeal: University of Ottawa, Ottawa; Paliare Roland Rosenberg Rothstein, Toronto.


Solicitor for the respondents/appellants on cross‑appeal: Attorney General of Canada, Saskatoon, Ottawa and Edmonton.


Solicitor for the intervener the Attorney General for Saskatchewan: Attorney General for Saskatchewan, Regina.


Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Edmonton.


Solicitors for the interveners the Native Council of Nova Scotia, the New Brunswick Aboriginal Peoples Council and the Native Council of Prince Edward Island: Burchells, Halifax.


Solicitors for the intervener the Metis Settlements General Council: Witten, Edmonton.


Solicitors for the intervener the Te’mexw Treaty Association: JFK Law Corporation, Vancouver.


Solicitors for the intervener the Métis Federation of Canada: Devlin Gailus Westaway, Victoria.


Solicitors for the intervener the Aseniwuche Winewak Nation of Canada: JFK Law Corporation, Vancouver and Victoria.


Solicitors for the intervener the Chiefs of Ontario: Nahwegahbow, Corbiere Genoodmagejig, Rama, Ontario.


Solicitors for the intervener the Gift Lake Métis Settlement: Gowling WLG (Canada) Inc., Ottawa.


Solicitors for the intervener the Native Alliance of Quebec: Gagné Letarte, Québec.


Solicitors for the intervener the Assembly of First Nations: Gowling WLG (Canada) Inc., Ottawa.


Solicitor for the intervener the Métis National Council: Métis National Council, Ottawa.


[1] [2013] 2 F.C.R. 268.
[2] When Newfoundland and Labrador joined Confederation in 1949, for example, they brought with them many Aboriginal peoples who were obviously not — and had never been — registered under the federal Indian Act and were therefore non-status Indians. The federal government nonetheless assumed jurisdiction over them and many were incorporated into the Indian Act in 1984 and 2008.
[3] The Inconvenient Indian: A Curious Account of Native People in North America (2013), winner of the 2014 RBC Taylor Prize.
[4] The Indian Act, 1876, S.C. 1876, c. 18.
[5] An Act further to amend The Indian Act, S.C. 1894, c. 32.
[6] An Act to amend the Indian Act, S.C. 1958, c. 19.
[7] 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
[8] R.S.C. 1970, c. I-6.
[9] 37. (1) A constitutional conference composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada within one year after this Part comes into force.

(2)  The conference convened under subsection (1) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item.

(3)  The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of the conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.

37.1 (1) In addition to the conference convened in March 1983, at least two constitutional conferences composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada, the first within three years after April 17, 1982 and the second within five years after that date.

(2)  Each conference convened under subsection (1) shall have included in its agenda constitutional matters that directly affect the aboriginal peoples of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on those matters.

(3)  The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of a conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories.

(4)  Nothing in this section shall be construed so as to derogate from subsection 35(1).

SUPREME COURT OF CANADA Case name: R. v. Lloyd copy

Case name: R. v. Lloyd
Collection: Supreme Court Judgments
Date: 2016-04-15
Neutral citation: 2016 SCC 13
Case number: 35982
Judges: McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from: British Columbia
Subjects: Constitutional law
Notes: SCC Case Information: 35982



SUPREME COURT OF CANADA

Citation: R. v. Lloyd, 2016 SCC 13
Appeal heard: January 13, 2016
Judgment rendered: April 15, 2016
Docket: 35982

Between:
Joseph Ryan Lloyd
Appellant
and
Her Majesty the Queen
Respondent
- and -
Canadian Bar Association, African Canadian Legal Clinic,
Pivot Legal Society, Union of British Columbia Indian Chiefs,
HIV & AIDS Legal Clinic Ontario, Canadian HIV/AIDS Legal Network,
British Columbia Centre for Excellence in HIV/AIDS,
Prisoners with HIV/AIDS Support Action Network,
Canadian Association of People Who Use Drugs,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association (Ontario) and
West Coast Women’s Legal Education and Action Fund
Interveners

Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Reasons for Judgment:
(paras. 1 to 56)

Joint Reasons Dissenting in Part:
(paras. 57 to 110)
McLachlin C.J. (Abella, Cromwell, Moldaver, Karakatsanis and Côté JJ. concurring)

Wagner, Gascon and Brown JJ.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.





r. v. lloyd

Joseph Ryan Lloyd                                                                                         Appellant

v.

Her Majesty The Queen                                                                              Respondent

and

Canadian Bar Association,
African Canadian Legal Clinic,
Pivot Legal Society,
Union of British Columbia Indian Chiefs,
HIV & AIDS Legal Clinic Ontario,
Canadian HIV/AIDS Legal Network,
British Columbia Centre for Excellence in HIV/AIDS,
Prisoners with HIV/AIDS Support Action Network,
Canadian Association of People Who Use Drugs,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association (Ontario) and
West Coast Women’s Legal Education and Action Fund                        Interveners

Indexed as: R. v. Lloyd

2016 SCC 13

File No.: 35982.

2016: January 13; 2016: April 15.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

on appeal from the court of appeal for british columbia

                    Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Sentencing — Mandatory minimum sentence — Controlled substances offence — Accused convicted of possessing controlled substances for purpose of trafficking and sentenced to one year of imprisonment — Whether one‑year mandatory minimum imprisonment term pursuant to s. 5(3)(a)(i)(D) of Controlled Drugs and Substances Act results in cruel and unusual punishment and therefore infringes s. 12 of Canadian Charter of Rights and Freedoms — If so, whether infringement justifiable under s. 1 of Charter — Whether Court of Appeal erred in increasing sentence to 18 months — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(3)(a)(i)(D).

                    Constitutional law — Charter of Rights — Fundamental justice — Sentencing — Whether proportionality in sentencing process a principle of fundamental justice under s. 7 of Canadian Charter of Rights and Freedoms — If so, whether one‑year mandatory minimum sentence pursuant to s. 5(3)(a)(i)(D) of Controlled Drugs and Substances Act infringes s. 7 of Charter.

                    Constitutional law — Charter of Rights — Courts — Jurisdiction — Provincial court judge deciding mandatory minimum sentencing provision unconstitutional — Whether provincial court has power to determine constitutionality.

                    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 (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.

Cases Cited

By McLachlin C.J.

                    Applied: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; referred to: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Re Shewchuk and Ricard (1986), 28 D.L.R. (4th) 429; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Lyons, [1987] 2 S.C.R. 309; Miller v. The Queen, [1977] 2 S.C.R. 680; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Greyeyes, [1997] 2 S.C.R. 825; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Guiller (1985), 48 C.R. (3d) 226; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

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

                    R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Guiller (1985), 48 C.R. (3d) 226; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Tabujara, 2010 BCSC 1568; R. v. Yonis, 2011 ABPC 20; R. v. Johnson, 2011 ONCJ 77, 227 C.R.R. (2d) 41; R. v. Young, 2010 NWTSC 18; R. v. Desmond, 2010 BCPC 127; R. v. Bryan, 2010 NWTSC 41; R. v. Otchere‑Badu, 2010 ONSC 5271; R. v. Meunier, 2011 QCCQ 1588; R. v. Tracey, 2008 CanLII 68168; R. v. Draskoczi, 2008 NWTTC 12; R. v. Kotsabasakis, 2008 NBQB 266, 334 N.B.R. (2d) 396; R. v. Rainville, 2010 ABCA 288, 490 A.R. 150; R. v. Delorme, 2010 NWTSC 42; R. v. Scheer (1932), 26 Alta. L.R. 489; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Miller v. The Queen, [1977] 2 S.C.R. 680; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Gardiner (1987), 35 C.C.C. (3d) 461; R. v. Weiler (1975), 23 C.C.C. (2d) 556; R. v. O’Connor, 1975 CarswellBC 842 (WL Can.); R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.

Statutes and Regulations Cited

18 U.S.C. § 3553(f) (2012).

Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 12, 24(1).

Constitution Act, 1982, s. 52(1).

Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 2(1) “designated substance offence”, “traffic”, Part I, 4 to 10, 5(3)(a), (a.1), 10(4), (5), schs. I, II, VII.

Criminal Code, R.S.C. 1970, c. C‑34, s. 214(5)(e).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 231(5)(e), 718.1, 718.2(e), 720(2).

Criminal Law Amendment Act, 1997 (S. Afr.), No. 105 of 1997, s. 51(3)(a).

Criminal Law (Sentencing) Act 1988 (S.A.), s. 17.

Firearms Act 1968 (U.K.), 1968, c. 27, s. 51A(2).

Penal Code [Brottsbalken] (Swed.), c. 29, s. 5.

Powers of Criminal Courts (Sentencing) Act 2000 (U.K.), 2000, c. 6, ss. 109(3), 110(2), 111(2).

Safe Streets and Communities Act, S.C. 2012, c. 1, s. 39(1).

Sentencing Act (N.T.), s. 78DI.

Sentencing Act 1991 (Vic.), s. 10(1).

Sentencing Act 2002 (N.Z.), ss. 86E, 102, 103.

Violent Crime Reduction Act 2006 (U.K.), 2006, c. 38, s. 29(4).

Authors Cited

Canada. Department of Justice. Research and Statistics Division. Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models, report by Julian V. Roberts with the assistance of Rafal Morek and Mihael Cole, November 2005 (online: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr05_10/index.html).

Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Carswell, 2007 (updated 2015, release 1).

Roach, Kent. Constitutional Remedies in Canada, 2nd ed. Toronto: Canada Law Book, 2015 (loose‑leaf updated December 2015, release 26).

Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012.

                    APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Kirkpatrick and Groberman JJ.A.), 2014 BCCA 224, 356 B.C.A.C. 275, 610 W.A.C. 275, 12 C.R. (7th) 190, 312 C.R.R. (2d) 66, [2014] B.C.J. No. 1212 (QL), 2014 CarswellBC 1688 (WL Can.), setting aside two decisions of Galati Prov. Ct. J., 2014 BCPC 11, [2014] B.C.J. No. 145 (QL), 2014 CarswellBC 423 (WL Can.), and 2014 BCPC 8, [2014] B.C.J. No. 274 (QL), 2014 CarswellBC 358 (WL Can.). Appeal allowed, Wagner, Gascon and Brown JJ. dissenting in part.

                    David N. Fai and Jeffrey W. Beedell, for the appellant.

                    W. Paul Riley, Q.C., and Todd C. Gerhart, for the respondent.

                    Eric V. Gottardi and Mila Shah, for the intervener the Canadian Bar Association.

                    Faisal Mirza and Roger A. Love, for the intervener the African Canadian Legal Clinic.

                    Maia Tsurumi and Adrienne Smith, for the interveners the Pivot Legal Society and the Union of British Columbia Indian Chiefs.

                    Khalid Janmohamed and Ryan Peck, for the interveners the HIV & AIDS Legal Clinic Ontario, the Canadian HIV/AIDS Legal Network, the British Columbia Centre for Excellence in HIV/AIDS, the Prisoners with HIV/AIDS Support Action Network and the Canadian Association of People Who Use Drugs.

                    Matthew A. Nathanson, for the intervener the British Columbia Civil Liberties Association.

                    Dirk Derstine and Janani Shanmuganathan, for the intervener the Criminal Lawyers’ Association (Ontario).

                    Kasandra Cronin and Kendra Milne, for the intervener the West Coast Women’s Legal Education and Action Fund.



The judgment of McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis and Côté JJ. was delivered by

                     The Chief Justice —



I.              Introduction

[1]                              Parliament has the power to proscribe conduct as criminal and determine the punishment for it, and judges have the duty to apply the laws Parliament adopts on punishment to offenders. But individuals are also entitled to receive, and judges have a duty to impose, sentences that are constitutional having regard to the circumstances of each case that comes before them. Sometimes a judge’s duty to apply a mandatory minimum sentence provision conflicts with the judge’s duty to impose a sentence that does not violate the guarantees of the Canadian Charter of Rights and Freedoms. In this appeal, the Court is once again confronted with the problem of how the imposition of a mandatory minimum sentence can be reconciled with the imperative that no person shall be punished in a manner than infringes the Charter.

[2]                              We are asked to decide the constitutionality of a one-year mandatory minimum sentence for a controlled substances offence. I conclude that this provision, while permitting constitutional sentences in a broad array of cases, will sometimes mandate sentences that violate the constitutional guarantee against cruel and unusual punishment. Insofar as the law requires a one-year sentence of imprisonment, it violates the guarantee against cruel and unusual punishment in s. 12 of the Charter and is not justified under s. 1.

[3]                              As this Court’s decision in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, illustrates, the reality is that mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence. One solution is for such laws to narrow their reach, so that they catch only conduct that merits the mandatory minimum sentence. Another option to preserve the constitutionality of offences that cast a wide net is to provide for residual judicial discretion to impose a fit and constitutional sentence in exceptional cases. This approach, widely adopted in other countries, provides a way of resolving the tension between Parliament’s right to choose the appropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment.

[4]                              For the reasons that follow, I conclude that, although he was not required to do so, the provincial court judge in this case had the power to consider the constitutional validity of the mandatory minimum sentence provision at issue; that he did not err in finding it unconstitutional; and that the sentence of one year he imposed on the appellant should be upheld.

II.           The Challenged Law

[5]                              Section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), provides:

5 (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

(3) Every person who contravenes subsection (1) or (2)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and

(i) to a minimum punishment of imprisonment for a term of one year if

. . .

(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or

[6]                              To be subject to the mandatory minimum sentence of one year of imprisonment, an offender must be convicted of trafficking, or of possession for the purpose of trafficking, of either any quantity of a Schedule I substance, such as cocaine, heroin or methamphetamine, or three kilograms or more of a Schedule II substance, namely cannabis: s. 5(3)(a) and (a.1), CDSA. The offender must also have been convicted within the previous 10 years of a “designated substance offence”, which is defined at s. 2(1) of the CDSA as any offence under Part I of the CDSA other than simple possession.

III.        The Factual Background

[7]                              The appellant, Joseph Ryan Lloyd, was a drug addict and dealer in Vancouver’s Downtown Eastside. He was addicted to cocaine, methamphetamine and heroin, and sold drugs to support his addiction. He had been convicted of a number of drug-related offences.

[8]                              On February 8, 2013, Mr. Lloyd was convicted of possession of a Schedule I substance, 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 for the purpose of trafficking of a Schedule I drug, namely crack cocaine, methamphetamine, and heroin. The presiding judge, Galati Prov. Ct. J., convicted him on all three counts.

[9]                              At the sentencing hearing, Mr. Lloyd told the provincial court judge that he trafficked in drugs to support his drug addiction, but that he was taking steps to get help. He acknowledged that the drugs he trafficked in were dangerous and addictive, and that until recently he had given no thought to their effect on the people who purchased them. Because he had been convicted of a similar drug offence shortly before, he was subject to a mandatory minimum sentence of one year of imprisonment, pursuant to s. 5(3)(a)(i)(D) of the CDSA. Mr. Lloyd therefore asked for a declaration under s. 24(1) of the Charter that the mandatory minimum provision is unconstitutional and of no force or effect because it violates ss. 7, 9 and 12 of the Charter.

[10]                          Galati Prov. Ct. J. acknowledged that lower sentences have occasionally been imposed on repeat offender, addicted traffickers (2014 BCPC 8). In this case, however, he found — without considering the mandatory minimum provision — that the appropriate sentencing range for Mr. Lloyd’s offences was 12 to 18 months, and that the appropriate sentence for him was 12 months.  He noted that, in spite of this conclusion, Mr. Lloyd had standing to challenge the constitutional validity of the mandatory minimum because of its potential inflationary effect on the appropriate sentencing range. Turning to that issue, Galati Prov. Ct. J. found that the mandatory minimum violates s. 12 of the Charter because it would impose cruel and unusual punishment in cases where, for example, an addict possesses a small amount of a Schedule I drug to share with a spouse or a friend. A one-year sentence for such an offender, he held, would be grossly disproportionate to what is justified by the legitimate penological goals and sentencing principles of the CDSA, and would be considered abhorrent or intolerable by most Canadians. Galati Prov. Ct. J. rejected the claim that the mandatory minimum sentence also violates ss. 7 and 9 of the Charter. He found that the violation of s. 12 was not justified under s. 1 of the Charter (2014 BCPC 11), and sentenced Mr. Lloyd to one year of imprisonment.

[11]                          The British Columbia Court of Appeal (Groberman J.A., for himself and Newbury and Kirkpatrick JJ.A.) held that judges of the Provincial Court do not have the power to make formal declarations of constitutional invalidity (2014 BCCA 224, 356 B.C.A.C. 275).  Only superior courts of inherent jurisdiction have this power. The Court of Appeal therefore set aside what it read as the provincial court judge’s declaration of unconstitutionality. It further held that while Mr. Lloyd had standing to challenge the mandatory minimum provision under which he was sentenced, the court was not obligated to consider the issue unless it would have had an impact on the sentence. Because the minimum sentence provision at issue did not result in a significant change to the low end of the sentencing range, and could not have affected Mr. Lloyd, the court declined to consider the constitutional challenge to the mandatory minimum provision.

[12]                          The Court of Appeal also allowed the Crown’s sentence appeal and increased Mr. Lloyd’s sentence to 18 months concurrent for the three offences. It held that a sentence at the high end of the normal range was justified because (1) Mr. Lloyd possessed three different substances for street-level distribution; (2) the substances are dangerous, highly addictive, and socially destructive; (3) he committed the offences while on probation; (4) he was carrying a knife in a sheath, contrary to the terms of his probation; (5) he had a lengthy criminal record, with 21 prior convictions; and (6) his attempts at rehabilitation were embryonic, and he showed little insight into the harm caused to others. The Court of Appeal held that the sentencing judge wrongly took three to four months as the low end of the normal range for sentences, when in fact it was one year. It increased the sentence accordingly.

IV.        Analysis

[13]                          Three issues are raised on appeal: (1) Did the provincial court judge have the power to decide the constitutionality of the mandatory minimum sentence? (2) Is the mandatory minimum sentence law at issue unconstitutional? (3) Did the Court of Appeal err in increasing Mr. Lloyd’s sentence from 12 months to 18 months?

A.           Did the Provincial Court Judge Have the Power to Decide the Constitutionality of the Mandatory Minimum Sentence?

[14]                          The provincial court judge, having found that the mandatory minimum sentence at issue would affect Mr. Lloyd’s sentence only if it raised the floor of the appropriate range of sentences, proceeded to consider the law’s constitutionality and “declare” it unconstitutional. The Court of Appeal set aside this declaration and declined to consider the question on the ground that the challenged law does not raise the threshold of the sentencing range and thus could not have affected Mr. Lloyd’s sentence. The Crown asks us to confirm that provincial courts cannot make declarations of constitutional invalidity and should rule on the constitutionality of a mandatory minimum sentence only if it would have an impact on the offender before them.

[15]                          The law on this matter is clear. Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power.  However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them. As this Court stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 316, “it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.” See also Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, at pp. 14-17; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, at p. 592; Re Shewchuk and Ricard (1986), 28 D.L.R. (4th) 429 (B.C.C.A.), at pp. 439-40; K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at p. 6-25.

[16]                          Just as no one may be convicted of an offence under an invalid statute, so too may no one be sentenced under an invalid statute. Provincial court judges must have the power to determine the constitutional validity of mandatory minimum provisions when the issue arises in a case they are hearing. This power flows directly from their statutory power to decide the cases before them. The rule of law demands no less.

[17]                          In my view, the provincial court judge in this case did no more than this. Mr. Lloyd challenged the mandatory minimum that formed part of the sentencing regime that applied to him. As the Court of Appeal found, he was entitled to do so. The provincial court judge was entitled to consider the constitutionality of the mandatory minimum provision. He ultimately concluded that the mandatory minimum sentence was not grossly disproportionate as to Mr. Lloyd. The fact that he used the word “declare” does not convert his conclusion to a formal declaration that the law is of no force or effect under s. 52(1) of the Constitution Act, 1982.

[18]                          To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process.

[19]                          The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982. It is open to provincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own; however, the law remains in full force or effect, absent a formal declaration of invalidity by a court of inherent jurisdiction.

[20]                          I conclude that the provincial court judge in this case had the power to consider the constitutional validity of the challenged sentencing provision in the course of making his decision on the case before him.

B.            Is the Mandatory Minimum Sentence Here Unconstitutional?

[21]                          Section 5(3)(a)(i)(D) of the CDSA 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 law 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, R.S.C. 1985, c. C-46: s. 10(5), CDSA. The question is whether this law violates the Charter.

(1)            Does the Law Violate Section 12 of the Charter?

[22]                          The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charter was recently clarified by this Court in Nur.  A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1073. 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: Nur, at para. 77.

[23]                          A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46.  First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriate sentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, [1987] 2 S.C.R. 309, at pp. 337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.

[24]                          This Court has established 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: Smith, at p. 1072, citing Miller v. The Queen, [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

[25]                          This brings us to the law challenged in this case. Mr. Lloyd concedes that the one-year minimum jail term is not a sentence that is grossly disproportionate as applied to him but only in relation to reasonably foreseeable applications of the law to others. The question before us is therefore: Could a one-year sentence of imprisonment be grossly disproportionate to the offence of possession for the purpose of trafficking a Schedule I substance in reasonably foreseeable cases?

[26]                          On its face, a one-year sentence for an offender with a prior conviction for a drug offence who is convicted for trafficking or possession for the purpose of trafficking in a Schedule I drug, such as cocaine, heroin or methamphetamine, may not seem excessive. Schedule I drugs are highly addictive and inflict great harm on individuals and society. Trafficking in these drugs is rightly considered a serious offence: see R. v. Greyeyes, [1997] 2 S.C.R. 825, at para. 6, per L’Heureux-Dubé J.; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 80, per Cory J. (dissenting on another issue).

[27]                          The problem with the mandatory minimum sentence provision in this case is that it “casts its net over a wide range of potential conduct”: Nur, at para. 82. 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.

[28]                          Three features of the law make it applicable in a large number of situations, varying greatly in an offender’s blameworthiness.

[29]                          First, it applies to any amount of Schedule I substances. As such, it applies indiscriminately to professional drug dealers who sell dangerous substances for profit and to drug addicts who possess small quantities of drugs that they intend to share with a friend, a spouse, or other addicts.

[30]                          Second, the definition of “traffic” in the CDSA captures a very broad range of conduct. It targets not only people selling drugs, but all who “administer, give, transfer, transport, send or deliver the substance” (s. 2(1)), irrespective of the reason for doing so and regardless of the intent to make a profit. As such, it would catch someone who gives a small amount of a drug to a friend, or someone who is only trafficking to support his own habit.

[31]                          Third, the minimum sentence applies when there is a prior conviction for any “designated substance offence” within the previous 10 years, which captures any of the offences in ss. 4 to 10 of the CDSA, except the offence of simple possession. In addition, the prior conviction can be for any substance, in any amount — even, for example, a small amount of marihuana.

[32]                          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.

[33]                          Another foreseeable situation caught by the law is the following. 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 goes to a rehabilitation centre and conquers his addiction. He comes to the sentencing 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.

[34]                          It is argued that the exception to the mandatory minimum sentence provisions at issue in this case cures its constitutional infirmity. The law does not require the court to impose the one-year minimum jail term if, prior to the imposition of sentence, the offender successfully completes an approved drug treatment court program or a treatment program under s. 720(2) of the Criminal Code: s. 10(5), CDSA. This exception is a step in the right direction. However, it is 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. At the time of Mr. Lloyd’s sentencing, there was only one approved drug treatment program in Vancouver. 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. As stated in Nur, exemptions from minimum sentences based on Crown discretion provide only “illusory” protection against grossly disproportionate punishment: para. 94.

[35]                          As I have already said, in light of Nur, 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.

[36]                          Another solution would be for Parliament to build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment.  Residual judicial discretion for exceptional cases is a technique widely used to avoid injustice and constitutional infirmity in other countries: Department of Justice Canada, Research and Statistics Division, Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models (2005) (online), at pp. 1, 4 and 35.  It allows the legislature to impose severe sentences for offences deemed abhorrent, while avoiding unconstitutionally disproportionate sentences in exceptional cases. The residual judicial discretion is usually confined to exceptional cases and may require the judge to give reasons justifying departing from the mandatory minimum sentence prescribed by the law.  It is for the legislature to determine the parameters of the residual judicial discretion. The laws of other countries reveal a variety of approaches: Criminal Law Amendment Act, 1997 (S. Afr.), No. 105 of 1997, s. 51(3)(a); Firearms Act 1968 (U.K.), 1968, c. 27, s. 51A(2); Violent Crime Reduction Act 2006 (U.K.), 2006, c. 38, s. 29(4); Powers of Criminal Courts (Sentencing) Act 2000 (U.K.), 2000, c. 6, ss. 109(3), 110(2) and 111(2); Sentencing Act (N.T.), s. 78DI; Sentencing Act 1991 (Vic.), s. 10(1); Sentencing Act 2002 (N.Z.), ss. 86E, 102 and 103; Criminal Law (Sentencing) Act 1988 (S.A.), s. 17; 18 U.S.C. § 3553(f) (2012); Penal Code [Brottsbalken] (Swed.), c. 29, s. 5. There is no precise formula and only one requirement — that the residual discretion allow for a lesser sentence where application of the mandatory minimum would result in a sentence that is grossly disproportionate to what is fit and appropriate and would constitute cruel and unusual punishment.

[37]                          I conclude that the challenged mandatory minimum sentence of one year of imprisonment violates s. 12 of the Charter.

(2)            Does the Law Violate Section 7 of the Charter?

[38]                          In view of my conclusion that the law violates s. 12 of the Charter, the question of whether it also violates the s. 7 guarantee of liberty need not be addressed. However, it may be useful to comment on the issue, since it has arisen in this and other cases.

[39]                          Section 7 of the Charter provides that no person may be deprived of liberty except in accordance with the principles of fundamental justice.  Mr. Lloyd argues that the principle of proportionality in sentencing — that the judge should impose a fit sentence having regard to all relevant factors — is a principle of fundamental justice under s. 7. The challenged mandatory minimum sentence prevents trial judges from considering all relevant circumstances in sentencing. Therefore, Mr. Lloyd asserts, it violates s. 7.

[40]                          I am unable to accept the submission that the principle of proportionality in sentencing is a principle of fundamental justice under s. 7 of the Charter. My starting point is the observation that principles of fundamental justice in s. 7 must be defined in a way that promotes coherence within the Charter and conformity to the respective roles of Parliament and the courts.

[41]                          I turn first to coherence within the Charter. It is necessary to read s. 7 in a way that is consistent with s. 12.  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. As McIntyre J. (dissenting on another issue) stated in Smith, at p. 1107:

While section 7 sets out broad and general rights which often extend over the same ground as other rights set out in the Charter, it cannot be read so broadly as to render other rights nugatory. If section 7 were found to impose greater restrictions on punishment than s. 12 — for example by prohibiting punishments which were merely excessive — it would entirely subsume s. 12 and render it otiose. For this reason, I cannot find that s. 7 raises any rights or issues not already considered under s. 12.

[42]                          This Court again held that ss. 7 and 12 could not impose a different standard with respect to the proportionality of punishment in R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 160, per Gonthier and Binnie JJ.:

Is there then a principle of fundamental justice embedded in s. 7 that would give rise to a constitutional remedy against a punishment that does not infringe s. 12?  We do not think so.  To find that gross and excessive disproportionality of punishment is required under s. 12 but a lesser degree of proportionality suffices under s. 7 would render incoherent the scheme of interconnected “legal rights” set out in ss. 7 to 14 of the Charter by attributing contradictory standards to ss. 12 and 7 in relation to the same subject matter.  Such a result, in our view, would be unacceptable.

[43]                          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. Those norms are judged only by the standard of s. 12.

[44]                          It has been said that “proportionality in sentencing could aptly be described as a principle of fundamental justice”:  R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 36.  However, this does not mean that proportionality constitutes a new principle of fundamental justice distinct from the well-established principle of gross disproportionality under s. 7 of the Charter.

[45]                          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 in a s. 12 analysis. As Borins Dist. Ct. J. stated in an oft-approved passage:

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.

(R. v. Guiller (1985), 48 C.R. (3d) 226 (Ont.), at p. 238)

[46]                          Similarly, in Lyons, at pp. 344-45, La Forest J. stressed the importance of the high threshold of s. 12, explaining that the word “grossly” “reflect[ed] this Court’s concern not to hold Parliament to a standard so exacting . . . as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender”.

[47]                          I conclude that proportionality is not a principle of fundamental justice, and that the challenged mandatory minimum does not violate s. 7 of the Charter.

(3)            Is the Violation of Section 12 Saved by Section 1 of the Charter?

[48]                          In my view, the Crown has not made the case that the challenged law’s imposition of grossly disproportionate punishment on some people is justified by an overarching objective.  It is therefore not a reasonable limit on the s. 12 right.

[49]                          Parliament’s objective — to combat the distribution of illicit drugs — is unquestionably an important objective: R. v. Oakes, [1986] 1 S.C.R. 103, at p. 141. This objective is rationally connected to the imposition of a one-year mandatory minimum sentence for the offence of possession for the purpose of trafficking of Schedule I drugs.  However, the law does not minimally impair the s. 12 right.  As discussed above, the law covers a wide array of situations of varying moral blameworthiness, without differentiation or exemption, save for the single exception in s. 10(5) of the CDSA. 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.

[50]                          I conclude that the violation of the s. 12 right is not justified under s. 1 of the Charter.

C.            Did the Court of Appeal Err in Increasing the Sentence From One Year to 18 Months?

[51]                          Mr. Lloyd also appeals from the Court of Appeal’s substitution of a sentence of 18 months of imprisonment for the one-year sentence imposed by the provincial court judge.

[52]                          A trial judge’s determination of the appropriate sentence is entitled to deference. Appellate courts cannot alter a trial judge’s sentence unless it is demonstrated that the trial judge made a legal error or imposed a sentence that is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11, per Wagner J. The Court of Appeal in this case took the view that the provincial court judge applied the wrong sentencing range — a range of three to four months at the low end to 18 months at the high end.  A careful reading of the reasons of the provincial court judge does not, in my respectful view, bear this out.  The trial judge noted that sentences of three to four months for the offence had been upheld in a few exceptional cases, but went on to identify the appropriate sentencing range as 12 to 18 months. Noting a number of mitigating factors, he sentenced Mr. Lloyd 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.  “[T]he choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot in itself constitute a reviewable error”:  Lacasse, at para. 51.

[53]                          The Court of Appeal also took issue with the provincial court judge’s weighing of the factors relevant to Mr. Lloyd’s sentence.  It stated that the case was “not one in which there were many mitigating factors that would call for a particularly light sentence”: para. 68.  But, to once again quote Wagner J. in Lacasse, “an appellate court may not intervene simply because it would have weighed the relevant factors differently”: para. 49.

[54]                          Finally, the Court of Appeal did not establish that a 12-month sentence in this case was demonstrably unfit.

[55]                          I would restore the sentence of one year imposed by the provincial court judge.

V.           Conclusion

[56]                          The appeal is allowed. Section 5(3)(a)(i)(D) of the CDSA is declared to be inconsistent with s. 12 of the Charter and not justified under s. 1.  It is therefore of no force or effect under s. 52(1) of the Constitution Act, 1982. The sentence of the Court of Appeal is set aside and the sentence of one year of imprisonment imposed by the provincial court judge is restored.


The following are the reasons delivered by

                     Wagner, Gascon and Brown JJ. —

I.              Overview

[57]                          Judicial discretion is fundamental to sentencing in Canada. Between the “distant statutory poles” of minimum and maximum sentences, judges have “considerable latitude in ordering an appropriate period of incarceration which advances the goals of sentencing and properly reflects the overall culpability of the offender”: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 37. This wide discretion ensures that, in accordance with the “fundamental principle” of sentencing, judges impose sentences that are fit and proportionate to the gravity of a particular offence, and to the degree of responsibility of a particular offender: Criminal Code, R.S.C. 1985, c. C-46, s. 718.1.

[58]                          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”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 3. As Wilson J. observed in her concurring reasons in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.

[59]                          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 prioritize denunciation, general deterrence and retribution: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 44. As a result, “[t]hey may, in extreme cases, impose unjust sentences”: para. 44.

[60]                          Nevertheless, while mandatory minimums are sometimes inconsistent with the proportionality principle, the Court has long held that they do not, in and of themselves, impose cruel and unusual punishment: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1077, per Lamer J.; R. v. Goltz, [1991] 3 S.C.R. 485, at p. 501. Mandatory minimums are “a forceful expression of governmental policy in the area of criminal law”: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 45. As such, Parliament is owed substantial deference in crafting mandatory minimum sentences: Goltz, at p. 501; R. v. Guiller (1985), 48 C.R. (3d) 226 (Ont. Dist. Ct.). 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”: Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, at p. 1417. This longstanding framework was maintained and reaffirmed last year by the Court in Nur.

[61]                          We accept the Chief Justice’s account of the facts of this case and the decisions below. We also agree with her analysis on the jurisdiction of provincial court judges and her analysis of s. 7 of the Charter. Finally, for the reasons given by the Chief Justice, we would allow the appellant’s sentence appeal, and reduce his sentence from 18 months to 12 months, as ordered by the provincial court judge.

[62]                          We respectfully disagree, however, with the Chief Justice’s analysis of s. 12 of the Charter. Applying the “stringent and demanding” s. 12 test to this appeal, we cannot conclude that the challenged one-year mandatory minimum infringes s. 12.  The Court has struck down mandatory minimums under s. 12 only in very rare cases. Indeed, it has done so only twice in the decades since the Charter’s enactment. This is simply not one of those rare cases. The impugned provision would not result in grossly disproportionate sentences for any of the hypothetical offenders used by the Chief Justice to justify her finding that s. 12 is infringed. In our view, if the well-established s. 12 jurisprudence is applied, the challenged one-year mandatory minimum is constitutional.

II.           Analysis

A.           The Court Has Very Rarely Invalidated Mandatory Minimum Sentences

[63]                          The Court has upheld the constitutionality of mandatory minimum sentences in almost every case where it has considered the issue. It has rarely found mandatory minimum sentences to be unconstitutional, given the extremely high threshold that must be met before a s. 12 infringement will be found. This approach acknowledges Parliament’s legitimate role in the sentencing process, while ensuring that no Canadian is subjected to cruel and unusual punishment.

[64]                          For instance, in R. v. Luxton, [1990] 2 S.C.R. 711, the Court upheld the mandatory minimum sentence for first degree murder of life imprisonment with no eligibility for parole for 25 years. Luxton involved a murder that occurred in the course of a forcible confinement. Pursuant to then s. 214(5)(e) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 231(5)(e)), this murder was deemed to be first degree murder even though it was not “planned and deliberate”. The Court nevertheless found that the mandatory minimum sentence for first degree murder did not infringe s. 12 in these circumstances.

[65]                          In Goltz, the Court upheld a mandatory minimum sentence of seven days’ imprisonment and a $300 fine for the offence of driving while prohibited. An offender had to have a poor driving record resulting in a driving prohibition, and drive in knowing breach of the prohibition, in order to be convicted under this section. Justice Gonthier, writing for the majority, stated that the offence of driving while prohibited was “grave” because “[i]t may involve a risk to the lives and limbs of innocent users of the province’s roads, by persons designated bad drivers by a fair and cautious identification system, who knowingly step outside the law” (p. 511). A sentence of seven days’ imprisonment for this offence did not constitute cruel and unusual punishment.

[66]                          In R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, a four-year mandatory minimum sentence for the offence of criminal negligence causing death with a firearm was found not to infringe s. 12. The offence captured conduct that was “wanton or reckless, and deserving of criminal liability” (para. 36), regardless of whether the offender had the subjective intention to break the law.

[67]                          In R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, the Court held that the mandatory minimum sentence for second degree murder of life imprisonment with no eligibility for parole for 10 years did not infringe s. 12. It stated that the mens rea required for second degree murder — subjective foresight of death — is the “most serious level of moral blameworthiness” (para. 82), regardless of the offender’s subjective motives for committing the offence. A mandatory minimum sentence of life imprisonment is not cruel and unusual punishment where “the gravest possible consequences resulted from an act of the most serious and morally blameworthy intentionality” (para. 84).

[68]                          Finally, in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, the Court upheld a four-year mandatory minimum sentence for manslaughter with a firearm.

[69]                          In comparison, there have been only two instances since the advent of the Charter where the Court has found that a mandatory minimum sentence infringes s. 12: Smith and Nur.

[70]                          In Smith, at issue was a seven-year mandatory minimum for importing narcotics into Canada. The minimum applied regardless of the seriousness or quantity of the imported drugs, or whether the drugs were intended for personal use: pp. 1077-78. Justice Lamer held that the minimum infringed s. 12 because of the “wide net” it cast: p. 1077. He relied on the hypothetical case of a young person who drove back into Canada from a winter break in the U.S. with his or her first “joint of grass”: p. 1053.

[71]                          In Nur, the Court considered the three-year mandatory minimum for an offender’s first conviction for possessing prohibited or restricted firearms when the firearm is loaded or kept with readily accessible ammunition. The minimum was five years for a second or subsequent conviction. Again, in striking down the minimums, the Court emphasized their breadth. These minimums applied even in the case of a “licensing” type offence, when a “licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby . . . makes a mistake as to where it can be stored”: para. 82. The minimums were grossly disproportionate in the licensing scenario because of the “minimal blameworthiness of the offender . . . and the absence of any harm or real risk of harm flowing from the conduct”: para. 83. In its s. 1 Charter analysis, the Court suggested that a constitutionally compliant alternative would keep “a close correspondence between conduct attracting significant moral blameworthiness — such as those engaged in criminal activity or conduct that poses a danger to others — and the mandatory minimum”: para. 117.

B.            This Case Is Not One of These Rare Cases

[72]                          The impugned one-year mandatory minimum in s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), was enacted in 2012 as part of the Safe Streets and Communities Act, S.C. 2012, c. 1 (see s. 39(1)). It provides as follows:

5 (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

(3) Every person who contravenes subsection (1) or (2)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and

(i) to a minimum punishment of imprisonment for a term of one year if

. . .

(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or

. . .

(a.1) if the subject matter of the offence is a substance included in Schedule II in an amount that is not more than the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years less a day;

[73]                          Two conditions must be satisfied for the challenged one-year mandatory minimum to apply.

[74]                          First, the offender must have trafficked, or possessed for the purpose of trafficking, any amount of a Schedule I substance, three kilograms of cannabis resin or marihuana (Schedule II substances), or any amount of the other Schedule II substances (ss. 5(3)(a), 5(3)(a.1) and Schedule VII). Schedule I contains the most serious drugs, such as opium, codeine, heroin, cocaine, fentanyl, and methamphetamine. Therefore, the mandatory minimum applies where the offender traffics or possesses for the purpose of trafficking any amount of the most serious drugs known to our law, or a significant quantity of cannabis, a less serious drug.

[75]                          Second, the offender must have either been convicted of a designated substance offence, or served a term of imprisonment for a designated substance offence, within the previous 10 years. A “designated substance offence” is any offence under Part I of the CDSA, except for simple possession: CDSA, s. 2(1). Thus, the minimum applies if the offender has a prior record for offences such as trafficking, possession for the purpose of trafficking, importing and exporting, or production.

[76]                          We observe that the one-year mandatory minimum sentence in s. 5(3)(a)(i)(D) of the CDSA confirmed existing sentencing practice for this offence. As noted by the provincial court judge, 2014 BCPC 8, at para. 45 (CanLII) of his reasons, the impugned mandatory minimum codified the bottom of the sentencing range for trafficking in Schedule I substances by offenders with at least one prior, related conviction. Across Canada, offenders who trafficked in small amounts of Schedule I substances with at least one prior, related conviction were routinely sentenced to at least 12 months’ imprisonment: see, e.g., R. v. Tabujara, 2010 BCSC 1568 (1 year); R. v. Yonis, 2011 ABPC 20 (2 years less a day); R. v. Johnson, 2011 ONCJ 77, 227 C.R.R. (2d) 41 (18 months); R. v. Young, 2010 NWTSC 18 (13 months); R. v. Desmond, 2010 BCPC 127 (20 months); R. v. Bryan, 2010 NWTSC 41 (1 year); R. v. Otchere-Badu, 2010 ONSC 5271 (1 year); R. v. Meunier, 2011 QCCQ 1588 (18 months); R. v. Tracey, 2008 CanLII 68168 (Ont. S.C.J.) (15 months); R. v. Draskoczi, 2008 NWTTC 12 (18 months); R. v. Kotsabasakis, 2008 NBQB 266, 334 N.B.R. (2d) 396 (15 months); R. v. Rainville, 2010 ABCA 288, 490 A.R. 150 (18 months); R. v. Delorme, 2010 NWTSC 42 (20 months).

[77]                          Further, a prior conviction for a related offence has historically and consistently been treated as an aggravating factor in sentencing, justifying an increased sentence within the range of appropriate sentences for the offence and the offender: R. v. Scheer (1932), 26 Alta. L.R. 489 (App. Div.), at p. 491; C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at p. 371. The application of the mandatory minimum in s. 5(3)(a)(i)(D) of the CDSA is conditional upon the offender having such a prior conviction. Again, Parliament has merely codified an existing sentencing practice.

[78]                          Parliament also recognized that many people traffic serious drugs in order to support their own addictions. Sections 10(4) and (5) were added to the CDSA in 2012 to allow sentencing judges to refrain from imposing the mandatory minimum sentence on offenders who successfully complete drug treatment programs:

(4) A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender

(a) to participate in a drug treatment court program approved by the Attorney General; or

(b) to attend a treatment program under subsection 720(2) of the Criminal Code.

(5) If the offender successfully completes a program under subsection (4), the court is not required to impose the minimum punishment for the offence for which the person was convicted.

[79]                          Thus, it is only offenders who traffic in serious drugs and who have a prior related conviction or served a prison term for a drug offence (excluding simple possession) within the past 10 years and who do not successfully complete a treatment program between conviction and sentencing that are subject to a mandatory minimum sentence of one year in prison. This is a very narrow and tailored mandatory minimum sentence.

[80]                          The conduct caught by s. 5(3)(a)(i)(D) bears no resemblance to the harmless “licensing” offence that was found to infringe s. 12 in Nur. In Nur, the provision was found to infringe s. 12 because it applied to “truly criminal conduct [that] poses a real and immediate danger to the public” (para. 82, quoting 2013 ONCA 677, 117 O.R. (3d) 401, at para. 51, per Doherty J.A.), as well as to an offender with “minimal blameworthiness” (para. 83) who simply makes a mistake about where his firearm may be stored.

[81]                          Section 5(3)(a)(i)(D) applies only to the offences of trafficking or possession for the purpose of trafficking. An offender may traffic Schedule I or II drugs in a variety of ways. However, in order to be convicted of trafficking, the offender must intend to traffic the drugs and must know the substance he is trafficking. The act of trafficking will always disseminate the harms and associated miseries caused by illicit drugs to other members of society. Even at the low end of the moral blameworthiness spectrum for this offence, there is nothing resembling the responsible gun owner in Nur who mistakenly stores his firearm in the wrong place. All trafficking is serious and involves blameworthy conduct.

[82]                          Indeed, as the Chief Justice recognizes, Schedule I drugs in particular pose severe health risks to users, including the risk of addiction and overdose. Drug trafficking also leads to serious social harms. For instance, some heavy drug users turn to crime in order to support their drug habits: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paras. 85-88, per Cory J. (dissenting). Drug abuse also imposes “significant if not staggering” societal costs in the form of health care and law enforcement expenses: para. 89. Trafficking in illicit drugs, especially dangerous drugs such as those listed in Schedule I, is a serious crime.

[83]                          The one-year mandatory minimum at issue in this appeal also stands in stark contrast to the provision that was struck down in Smith. The provision in Smith imposed a mandatory minimum sentence of seven years for importing any amount of a narcotic, whether the importation was for distribution or mere personal use. There was no exemption clause allowing for a lesser sentence in certain circumstances, and no prior conviction for a related offence was required before it would apply. Cognizant of these shortcomings, Lamer J. in his s. 1 Charter analysis suggested several modifications to the minimum that would make it constitutional. He wrote, at pp. 1080-81:

Clearly there is no need to be indiscriminate. We do not need to sentence the small offenders to seven years in prison in order to deter the serious offender. . . . The result sought could be achieved by limiting the imposition of a minimum sentence to the importing of certain quantities, to certain specific narcotics of the schedule, to repeat offenders, or even to a combination of these factors. [Emphasis added.]

[84]                          Section 5(3)(a)(i)(D) is limited in the manner Lamer J. suggested in Smith. 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.

[85]                          The Chief Justice finds that the challenged one-year mandatory minimum “casts its net over a wide range of potential conduct” (para. 27, citing Nur, at para. 82), and suggests that all mandatory minimums for offences that can be committed in many ways, in many different circumstances, and by a wide range of people, are “constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence” (para. 3; see also para. 35). We respectfully disagree. If the challenged minimum is compared to those in Smith and Nur, this mandatory minimum simply does not cover a “wide range” of conduct. It is, rather, carefully tailored to catch only harmful and highly blameworthy conduct.

C.            The Reasonable Hypotheticals Considered Do Not Support a Section 12 Infringement

[86]                          The Chief Justice accepts that the one-year mandatory minimum is not grossly disproportionate as applied to the appellant, Mr. Lloyd. The only issue is whether it imposes grossly disproportionate punishment in reasonably foreseeable scenarios.

[87]                          When considering s. 12 Charter challenges to mandatory minimums, courts should keep firmly in mind that, by its terms, s. 12 does not prohibit merely excessive or disproportionate punishments. It prohibits only “cruel and unusual treatment or punishment”. As a result, the “gross disproportionality” test that has developed under s. 12 is, quite rightly, a difficult standard to meet. To infringe s. 12, the punishment must be “so excessive as to outrage standards of decency”: Smith, at p. 1072, citing Miller v. The Queen, [1977] 2 S.C.R. 680, at p. 688, per Laskin C.J. In other words, Canadians must find the punishment “abhorrent or intolerable”: Morrisey, at para. 26. A merely disproportionate punishment does not infringe s. 12: Smith, at p. 1072; Nur, at para. 39. And in crafting mandatory minimums, Parliament is not obliged to perfectly accommodate “the moral nuances of every crime and every offender”: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 345.

[88]                          With respect, the gross disproportionality standard is not satisfied in either of the hypothetical situations relied on by the Chief Justice. In essence, what she does is consider mitigating circumstances in isolation from the moral blameworthiness of the offence, which the mandatory minimum is intended to address.

(1)           The Sharing Scenario

[89]                          First, the Chief Justice invokes the situation of an “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” (para. 32). The provincial court judge invoked a similar hypothetical situation in his analysis (see his reasons, at paras. 48-49).

[90]                          In our respectful view, this hypothetical scenario cannot be relied on in the s. 12 analysis. If the circumstances described in a hypothetical scenario might not result in a conviction for the offence at issue, then the hypothetical is not reasonable and should not be considered: Goltz, at pp. 519-20. 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. The jurisprudence suggests that the sharing scenario the provincial court judge described could fall outside the offence of trafficking and instead constitute mere joint possession: R. v. Gardiner (1987), 35 C.C.C. (3d) 461 (Ont. C.A.); R. v. Weiler (1975), 23 C.C.C. (2d) 556 (Ont. C.A.). Of course, if this hypothetical offender were convicted merely of joint possession, then the challenged mandatory minimum would not apply.

[91]                          Assuming that sharing can ground a conviction for trafficking, the Chief Justice’s hypothetical scenario still strikes us as unfit for consideration under s. 12. In that hypothetical, the offender is convicted of trafficking for sharing drugs not once, but twice — with the prior sharing incident occurring nine years before, and involving only marijuana. 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 strikes us as “far-fetched” or “marginally imaginable”, and thus inappropriate for the s. 12 analysis: Nur, at para. 54, citing Goltz, at p. 506. With respect, it also comes very close to “the most innocent and sympathetic case imaginable”: Nur, at para. 75.

[92]                          That said, even if the Chief Justice’s sharing scenario were accepted as a reasonable hypothetical, we are nevertheless of the opinion that the impugned provision would not impose grossly disproportionate punishment. It has been held at least once that those who traffic by sharing are less morally blameworthy than those who traffic for profit. In the somewhat dated case of R. v. O’Connor, 1975 CarswellBC 842 (WL Can.), a husband was found guilty of trafficking for transporting cannabis and LSD home for him and his wife to use. He bought the drugs with his wife’s knowledge and consent and had prior convictions of an unknown nature. On the peculiar facts of that case, the Court of Appeal reduced the sentence from three years’ to three months’ imprisonment on the basis of the offender’s diminished moral blameworthiness:

. . . while I have no doubt that the conduct in this case amounted to trafficking . . . when we come to the matter of sentence in this case it should be regarded as a case of possession without any element whatever of a commercial dealing in the drugs. . . . [para. 6]

[93]                          While the “sharing” trafficker may be somewhat less morally blameworthy than the cold-blooded trafficker of hard drugs for profit, we are not convinced that she is so much less morally blameworthy that a one-year sentence would “outrage standards of decency”. Whether the offender traffics by sharing, or to support her own addiction, or purely for profit, she facilitates the distribution of dangerous substances into the community. She may provide drugs to people who would not otherwise have had access to them. 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.

[94]                          Furthermore, the sharing trafficker in this scenario has a prior drug-related conviction. She was clearly on notice that trafficking in illicit substances is a serious offence, and yet she chose to traffic again anyway. The blameworthiness of a repeat offender must be higher than that of a first-time offender.

[95]                          Given the seriousness of the offence of drug trafficking and the deference owed to Parliament in setting mandatory minimum policies, we cannot agree that this well-tailored one-year mandatory minimum imposes grossly disproportionate punishment in this scenario.

(2)           The Rehabilitation Scenario

[96]                          The Chief Justice also proposes the scenario of a drug addict with a prior trafficking conviction who is convicted of a second trafficking offence. He traffics to support his addiction. Between conviction for the second offence and sentencing, he is rehabilitated and overcomes his addiction. He seeks a short sentence from the judge so that he can resume a healthy life. The sentencing judge is required to impose a one-year minimum sentence.

[97]                          We are not convinced that the application of the mandatory minimum in this scenario is a grossly disproportionate punishment, for two reasons. First, the mandatory minimum may not even apply. Second, even if the minimum does apply, the scenario is remarkably similar to the circumstances of Mr. Lloyd himself, for whom the Chief Justice agrees that this one-year sentence is not cruel and unusual.

[98]                          First, the exemption clause in ss. 10(4) and (5) of the CDSA states that the mandatory minimum sentence does not apply where the offender attends and successfully completes an approved treatment program between conviction and sentencing. If the offender in this reasonable hypothetical did indeed go to “a rehabilitation centre and conque[r] his addiction” (C.J.’s reasons, at para. 33) between conviction and sentencing, s. 10(5) of the CDSA could apply and the sentencing judge would not be required to impose the mandatory minimum sentence at all.

[99]                          Second, even if the minimum applies, it does not impose grossly disproportionate punishment. In this scenario, the offender has a prior conviction for a related offence, but was trafficking in order to support his own addiction, and is on the path to a healthy and productive life. Similarly, Mr. Lloyd has prior convictions for drug trafficking, but he testified at sentencing that he trafficked only to support his own addictions. Between conviction and sentencing, he contacted rehabilitation facilities and took the addictions programming that was available to him. He came to court at sentencing and asked for a short sentence of three to four months. The Chief Justice’s second hypothetical offender would be subject to the same sentencing range as Mr. Lloyd in British Columbia, a range which the courts below both agreed was 12 to 18 months. Indeed, both are “low level dealers with prior relevant convictions, trafficking to support their own addictions”, as put by the provincial court judge in establishing the applicable range (para. 28).

[100]                      The Chief Justice agrees that a one-year sentence is fit for Mr. Lloyd. If this is accepted, then we question how it can be possible for a one-year sentence to be grossly disproportionate for a reasonable hypothetical offender who is almost identically situated to Mr. Lloyd himself. More generally, if a challenged mandatory minimum corresponds to the lower end of the sentencing range applicable to the hypothetical offender relied on, as it does here, we wonder if that minimum can ever be found to be grossly disproportionate on the basis of such a hypothetical.

(3)           Other Hypothetical Scenarios

[101]                      Like the Chief Justice, we do not propose to discuss in detail the various hypothetical scenarios raised by the interveners. Many of the interveners suggested hypothetical scenarios, sometimes based on reported cases, which included offenders with various personal characteristics. For instance, the African Canadian Legal Clinic suggested a scenario that emphasizes the circumstances of African Canadians. Pivot Legal Society and the Union of British Columbia Indian Chiefs suggested scenarios involving Aboriginal offenders and addicted offenders. The West Coast Women’s Legal Education and Action Fund suggested hypotheticals that focus on the experiences of female offenders.

[102]                      The interveners’ hypothetical scenarios do not convince us that the challenged one-year mandatory minimum imposes grossly disproportionate punishment. In conducting the reasonable hypothetical analysis under s. 12, courts must inevitably consider the personal circumstances of hypothetical offenders, provided of course that courts do not artificially concoct “the most innocent and sympathetic case imaginable”: Nur, at para. 75. But the personal circumstances of hypothetical offenders must not be allowed to overwhelm the analysis. When considering reasonable hypotheticals, courts must also not lose sight of the seriousness of the conduct that the mandatory minimum proscribes. It must be recalled that the conduct captured by this one-year mandatory minimum — trafficking or possessing for the purpose of trafficking Schedule I or II substances, with a related prior conviction — remains serious, harmful and morally blameworthy.

[103]                      Moreover, mandatory minimum sentences need not “simultaneously pursue all of the traditional sentencing principles” in order to pass constitutional muster: Morrisey, at para. 46 (emphasis deleted). Parliament may, within constitutional limits, set a minimum sentence that prioritizes general deterrence, denunciation and retribution over other sentencing objectives like rehabilitation. Similarly, we would add, it is open to Parliament to set a statutory minimum that prioritizes deterrence, denunciation and retribution over other statutory sentencing considerations, such as, to take just one example, the sentencing judge’s duty to consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances . . . with particular attention to the circumstances of Aboriginal offenders”: Criminal Code, s. 718.2(e); R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 85; Nasogaluak, at para. 45.

[104]                      Parliament must simply refrain from setting minimums that are “so excessive as to outrage standards of decency”: Smith, at p. 1072 (emphasis added). We are not convinced that a one-year term of imprisonment for the serious conduct caught by the challenged minimum crosses this high constitutional threshold.  Accordingly, we conclude that the challenged one-year mandatory minimum does not infringe s. 12 of the Charter.

D.           Mandatory Minimums Are Not Per Se Unconstitutional

[105]                      That said, some further comments about the potential implications of the Chief Justice’s reasons are, in our view, warranted.

[106]                      The Chief Justice suggests that mandatory minimums for offences that can be committed in many ways, in many different circumstances, and by a wide range of people, are “constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence”  (para. 3; see also para. 35). This statement, however, is in tension with the Court’s s. 12 jurisprudence. In the past, the Court has upheld mandatory minimums that cover a wide range of potential conduct, including in Morrisey, Luxton and Latimer, for offences such as criminal negligence causing death with a firearm and murder. Criminal negligence homicides “can be committed in an almost infinite variety of ways”: Morrisey, at para. 31. And “[t]he culpability of murderers must vary as much as, and perhaps more than, the culpability of those accused of any other crime”: P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 53-10. The Chief Justice’s reasons would represent, in our respectful view, a departure from the Court’s jurisprudence, which has consistently maintained that mandatory minimums are not per se unconstitutional: Smith, at p. 1077.

[107]                      The Chief Justice’s s. 12 analysis also seems to be in tension with her reasoning on s. 7 of the Charter. She rejects Mr. Lloyd’s argument that “proportionality in sentencing” is a principle of fundamental justice under s. 7 on the basis that there is no “overarching constitutional principle that allows judges to subvert the norms of punishment enacted by Parliament” (para. 43). She also states that Parliament may 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” (para. 45). Yet, if few mandatory minimums can survive the scrutiny exemplified in the Chief Justice’s reasons on s. 12, then one must question what role is left for Parliament’s legitimate policy choices in setting punishment.

[108]                      We should not, however, be taken as disagreeing with the suggestion that Parliament may wish to consider providing judges some discretion to avoid applying mandatory minimums in appropriate cases (C.J.’s reasons, at para. 36). But we wish to make clear that 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. As the Chief Justice observed in Ferguson, at para. 55, the purpose of mandatory minimums is

to remove judicial discretion and to send a clear and unequivocal message to potential offenders that if they commit a certain offence, or commit it in a certain way, they will receive a sentence equal to or exceeding the mandatory minimum specified by Parliament.

[109]                      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.

III.        Conclusion

[110]                      Accordingly, in our view, the impugned one-year mandatory minimum does not infringe s. 12 of the Charter, and for the reasons given by the Chief Justice, it does not infringe s. 7 either. We agree with the Chief Justice that the sentence appeal should be allowed, and the 12-month sentence imposed by the provincial court judge restored.



                    Appeal allowed, Wagner, Gascon and Brown JJ. dissenting in part.

                    Solicitors for the appellant: David N. Fai Law Corporation, Vancouver; Gowling WLG (Canada) Inc., Ottawa.

                    Solicitor for the respondent: Public Prosecution Service of Canada, Vancouver.

                    Solicitors for the intervener the Canadian Bar Association: Peck and Company, Vancouver.

                    Solicitors for the intervener the African Canadian Legal Clinic: Faisal Mirza, Mississauga; African Canadian Legal Clinic, Toronto.

                    Solicitors for the interveners the Pivot Legal Society and the Union of British Columbia Indian Chiefs: Maia Tsurumi, Vancouver; Pivot Legal Society, Vancouver.

                    Solicitor for the interveners the HIV & AIDS Legal Clinic Ontario, the Canadian HIV/AIDS Legal Network, the British Columbia Centre for Excellence in HIV/AIDS, the Prisoners with HIV/AIDS Support Action Network and the Canadian Association of People Who Use Drugs: HIV & AIDS Legal Clinic Ontario, Toronto.

                    Solicitors for the intervener the British Columbia Civil Liberties Association: MN Law, Vancouver.

                    Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Derstine Penman, Toronto.

                    Solicitors for the intervener the West Coast Women’s Legal Education and Action Fund: La Liberté Cronin, Vancouver; West Coast LEAF, Vancouver.