Let Judges Judge

On April 15, the Supreme Court of Canada (SCC) released two decisions that have a significant impact on sentencing in the criminal justice system.

In R v Lloyd (2016 SCC 13: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15859/index.do), the majority decision (written by Chief Justice Beverley McLachlin) held that yet another “mandatory minimum” (this one for trafficking marijuana) introduced by the previous Conservative government was unconstitutional.

This decision came one year and one day following the SCC’s ruling in R v Nur (2015 SCC 15: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15272/index.do), wherein the court struck down certain mandatory minimum sentences relating to firearm possession. As outlined at paragraph 3 of Lloyd:

As this Court’s decision in R. v. Nur… 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.


Ultimately, in Lloyd, the SCC found that the mandatory minimum in question violated section 12 of the Charter of Rights and Freedoms (the right against cruel and unusual punishment) and that this violation could not be saved by section 1, despite Parliament’s “important objective” to “combat the distribution of illicit drugs” (paragraph 49), as the measure was not minimally impairing.


“proportionality is not a principle of fundamental justice”


(Interestingly, despite saying that “the question of whether [the mandatory minimum] also violates the s. 7 guarantee of liberty need not be addressed” (paragraph 38) in light of the finding of unconstitutionality vis-à-vis section 12 of the Charter, McLachlin CJ went on to conclude that “proportionality is not a principle of fundamental justice” (paragraph 47). This will no doubt restrict future constitutional challenges.)

In R v Safarzadeh-Markhali, the other very important decision released on April 16, 2016, the majority judgement (also written by McLachlin CJ) found that the previous Conservative government’s move to preclude accused individuals who have been denied bail primarily because of their prior convictions from receiving enhanced (1.5:1) credit for pre-sentence detention was unconstitutional.

Enhanced credit—typically initially at a 2:1 ratio, prior to the Truth in Sentencing Act coming into effect—was originally given to people spending time in custody before being sentenced in order to make up the fact that time served before imposition of sentence “does not count for purposes of parole eligibility, earned remission and statutory release” (paragraph 1). It also acknowledged the fact that “pre-sentence custody is generally more onerous than post-sentence custody” (paragraph 1).

The Conservative government wanted to restrict use of enhanced credit, largely because many members of the public—unaware of the issues around parole eligibility, earned remission, statutory release, and lack of programming for pre-sentence periods of custody—were upset about criminals “gaming” the system (having cases set over in order to collect “bonus” time prior to the sentencing hearing).


   It is clear that the SCC, in particular, is of the belief that the pendulum had swung too far in the other direction under Harper.


However, in Safarzadeh-Markhali, this provision was found to be overbroad (it could catch people who, for instance, had simply missed past court appearances and “[do] not pose any real threat to public safety or security”—paragraph 53) and thus in violation of section 7 of the Charter. The SCC found that the law could not be saved by section 1 of the Charter.

Many members of the Conservative Party (particularly those identifying as being “tough on crime”) would likely argue that prior to their forming government in 2006, sentencing practices were quite lax and offenders were getting off lightly. Largely to placate the Conservative base, Stephen Harper introduced a number of “tough-on-crime” bills, including those that brought in the enhanced credit limits and a slew of mandatory minimum sentences. The judicial branch has now responded by striking down a number of these “tough-on-crime” provisions. It is clear that the SCC, in particular, is of the belief that the pendulum had swung too far in the other direction under Harper.

It is worth noting that this entire situation is playing out very much as dialogue theory suggests it would; the legislative and judicial branches are engaging in institutionalized “discussions”—which are actually sets of action-reaction relationships rather than actual interactions—about legal and rights-focused topics. (See Kent Roach’s article: http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1260&context=ohlj.)


quite simply, judges should be left to judge.


The takeaway from these decisions—and many others before them—is that politicians should stop targeting vulnerable, widely detested groups of people (in this case, offenders) in order to score easy political points with uninformed segments of the electorate.

Mandatory minimum sentences and other provisions that limit judicial discretion send the message that the legislative branch doesn’t trust judges and that legislators are prepared to substitute mob-mentality sentiments for the detached, objective, rational decisions developed by a group possessing specialized legal training and experience.


If legislators want to ensure that public opinion is accurately reflected in criminal justice system decisions and outcomes, perhaps they could move to bypass the court system entirely. (In Ancient Rome, for instance, “thumbs-down” signals from bloodthirsty crowds would mean an unfortunate demise for a defeated gladiator…)


Otherwise, quite simply, judges should be left to judge.


About Brandon Trask

Brandon Trask is a regular blog contributor and former colleague of Daniel Murphy and currently a doctoral student at the University of Toronto’s Faculty of Law. He was formerly a Crown Attorney in Newfoundland and Labrador. Brandon holds law degrees from the University of Manitoba and the University of Toronto.