R. v. Lloyd: A coalition condemns mandatory minimum sentencing at the Supreme Court

By Mclean Ayearst, legal research volunteer and former Legal Network intern

January 13, 2016

The Canadian HIV/AIDS Legal Network is part of a coalition which is intervening at the Supreme Court in the case of R. v. Lloyd, the latest challenge to Canada’s harsh and damaging drug laws. In R. v. Lloyd, the Supreme Court will be asked to determine if a mandatory minimum sentence (MMS) law that establishes a minimum one-year sentence for certain drug offences is constitutional.

For years, the Legal Network has been speaking out, including in Parliament, against mandatory minimum prison sentences for drug offences, outlining why everyone loses under such bad criminal justice policy, and mobilizing evidence-informed opposition to such ill-advised laws. In R. v. Lloyd, we’re proud to have joined forces with long-standing partners such as the HIV/AIDS Legal Clinic Of Ontario (whose staff lawyers will be presenting our oral argument to the Court), the British Columbia Centre for Excellence in HIV/AIDS, the Canadian Association of People who Use Drugs (CAPUD) and the Prisoners with HIV/AIDS Support Action Network. Together, we are highlighting how mandatory minimum prison sentences for drug offences not only damage the health of people who use drugs (including those living with HIV or hepatitis C), but also undermine public health more broadly by fuelling these epidemics. This is part of our larger effort to put an end to a harmful, punitive approach to drugs, and to promote, instead, an approach based on public health and human rights.

In particular, in R. v. Lloyd, we are calling on the Supreme Court to remember that many individuals who will be caught by the challenged MMS law are drug-dependent and might also be living with HIV and/or hepatitis C virus (HCV). As prisoners, these people can suffer serious adverse effects on their health (including disrupted access to treatment for HIV, HCV or drug dependency) due to the lack of available health care in prisons and the increased time they spend in jail. Further, prolonging incarceration puts people who use drugs at increased risk of returning to their communities with HIV or HCV, and of suffering fatal overdose because of lack of adequate prison-based harm reduction services. We argue that a sentencing judge should be able to take into account (i) an accused’s medical conditions and the care needed to treat that person; (ii) the likely health decline the accused will suffer because of incarceration; and (iii) the disparity between the health services available for the accused’s conditions in prison versus in the community.

By preventing a judge from doing so, MMS provisions violate section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the security of the person, and section 12, which prohibits cruel and unusual punishment. These violations cannot be justified because MMS laws have no corresponding benefit since they have completely failed to deter drug-related crimes and protect public health.

Our intervention in R. v. Lloyd seeks to build on our recent successful interventions on sex worker rights and on supervised consumption services, ensuring that public health considerations and evidence-based policy decisions play a prominent role in determining the constitutionality of Canadian laws.

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