Aug 14, 2014

Constitutional Jurisdiction

R. v. Lloyd, 2014 BCCA 224 (CanLII)

Joseph Lloyd was convicted of three counts of possession of drugs for the purpose, contrary to section 5(2) of the Controlled Drugs and Substances Act [CDSA]. Lloyd had a prior conviction under the same section; as a result, he faced a mandatory minimum of one year.

Lloyd argued that the one-year mandatory minimum violated section 12. The sentencing judge held that the minimum did not violate section 12 as it related to Lloyd but went on to consider whether the provision would violate section 12 in a reasonable hypothetical. The court found that it did. As a result, the court “declared” that the provision was invalid.

The Crown appealed: 2014 BCCA 224.

Two aspects of the appeal are quite interesting.

First, the court considered the jurisdiction of the provincial court to consider the constitutionality of provisions.

In this context, the court noted that while a provincial court has the jurisdiction to consider any constitutional impact of a provision on the offender before it, any ruling is limited in its application to the present case. The court has no jurisdiction to make a general declaration of invalidity: “the judge in this case did, indeed, intended to make a formal declaration that the impugned provision was of no force and effect. He had no jurisdiction to make such a declaration, and, assuming that he was right to have found the impugned provision to be unconstitutional, ought to have confined himself to refusing to apply it in the case before him. I would set aside the declaration” [para 38].

Second, the court considered the proper scope of constitutional consideration by a provincial court.

In this context the court noted two points. One, in light of the fact that a provincial court ruling on the constitutionality of a provision is limited to the case before it, any consideration of the constitutionality in the context of a reasonable hypothetical might be unnecessary and inappropriate. Two, based on the more general principle that courts should restrict their rulings to the case before them it was, in the present case, inappropriate for the court to strike down the provision on the basis of a reasonable hypothetical.

The fact that a party has standing to make a constitutional argument, however, does not compel a court to rule on that argument. There is a general (though not invariable) principle that courts avoid making constitutional pronouncements when cases can be decided on less esoteric bases. Professor Hogg puts it this way:
A case that is properly before a court may be capable of decision on a non-constitutional ground or a constitutional ground or both. The course of judicial restraint is to decide the case on the non-constitutional ground. That way, the dispute between the litigants is resolved, but the impact of a constitutional decision on the powers of the legislative or executive branches of government is avoided. For the same reason, if a case can be decided on a narrow constitutional ground or a wide ground, the narrow ground is to be preferred. If a case can be decided on a rule of federalism or under the Charter, the federalism ground is the narrower one, because it leaves the other level of government free to act, whereas a Charter decision striking down a law does not. The general idea is that a proper deference to the other branches of government makes it wise for the courts, as far as possible, to frame their decisions in ways that do not intrude gratuitously on the powers of the other branches.
Peter W. Hogg, Constitutional Law of Canada (5th ed. supplemented) (looseleaf) Toronto: Thomson Carswell, 2007 (updated to 2013), §59.5, p. 59-22
In short, while Mr. Lloyd clearly had standing to challenge the validity of s. 5(3)(a)(i)(D) of the CDSA, the court was not obliged to determine that issue unless that section would have an impact on the appropriate sentence for Mr. Lloyd.
Mr. Lloyd contends that the court is required to determine the constitutionality of s. 5(3)(a)(i)(D), because "no one may be sentenced under an unconstitutional law". While there is some merit in that contention, I do not think that it can be said that Mr. Lloyd would be "sentenced under an unconstitutional law" unless that law in some way affects his sentence. Before embarking on the constitutional inquiry, therefore, the court should consider whether the impugned provision would have any effect on the sentence to be imposed. [Paras 42-44].

Lloydis an interesting and helpful decision. Interesting in its consideration of reliance upon a reasonable hypothetical in the context of section 12. As per Lloyd, where a provision would have no possible impact on the present offender reliance on a reasonable hypothetical may be unnecessary. Helpful in that it reminds that provincial courts are limited in their constitutional powers to making a finding about the force and effect of a provision to the case before them; there is no power to make general declarations of constitutional invalidity.