Constitutional Jurisdiction - Confirmed

Joseph Lloyd was charged with trafficking contrary to section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act. He faced a mandatory minimum sentence of one year. He challenged that minimum and asserted that it violated section 12 of the Charter. Notwithstanding that the trial judge (and counsel) believed that Lloyd deserved a sentence of at least 12 months, the trial judge considered the constitutionality of the provision and held that it violated section 12. The trial judge “declared” the provision to be of no force and effect. The Crown appealed and succeeded. Lloyd appealed to the Supreme Court: 2016 SCC 13.

The Supreme Court’s ruling offers three significant points of interest: (i) constitutional jurisdiction; (ii) the standard for section 12; and (iii) the limits of section 7.

Constitutional Jurisdiction

Before considering the constitutionality of the minimum sentence, McLachlin CJ, writing for the majority, addressed the issue of the constitutional jurisdiction of provincial court judges. The Court of Appeal had taken issue with the provincial court judge’s purported “declaration” of invalidity – holding that only superior courts, which have inherent jurisdiction can make such a finding. McLachlin CJ agreed:

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 CanLII 69 (SCC), [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 CanLII 57 (SCC), [1991] 2 S.C.R. 5, at pp. 14-17; Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570, at p. 592; Re Shewchuk and Ricard (1986), 1986 CanLII 174 (BC CA), 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.
[...]
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. [Emphasis added]. @paras15 and 19

McLachlin CJ thus confirmed that while the provincial court judge in the present case had the statutory jurisdiction to consider the constitutionality of the provision – and to grant a remedy for Lloyd – the court had no inherent jurisdiction and thus no authority to make a “formal declaration”. Notably, McLachlin CJ went on to make clear that in cases such as the present one (where Lloyd was not impacted by the mandatory minimum) the doctrine of mootness could apply and the court could (perhaps should) decline to consider the issue:

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. [Emphasis added]. @para18

This conclusion is indeed consistent with the Court’s prior jurisprudence on this point and, equally important, logical and principled. There is nothing in our constitutional history and nothing in our principles of law that would warrant otherwise.

Section 12

Turning to the constitutionality, McLachlin CJ held that the provision violated section 12 – a three-member minority (Gascon, Wagner and Brown JJ) dissented on this conclusion and would have upheld the provision. Notably, however, McLachlin CJ offered some helpful language regarding the high bar for a finding of disproportionality under section 12:

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, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6 (CanLII), [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. @para24

The import of this can be understood – to some extent – when one reviews the dissent which expresses notable concern and offers a note of caution about the impact of the majority’s finding on this standard and how the majority’s conclusion appears out of step with the Court’s prior position on mandatory minimum sentences. @paras105-107.

Section 7

The final area of interest in Lloyd is the Court’s consideration and rejection of “proportionality” as a principle of fundamental justice. Notably, the Court considered the same issue in Safarzadeh-Markhali, 2016 SCC 14. In both cases the Court rejected the inclusion of “proportionality” as a principle of fundamental justice – in Lloyd the following comments summarize that rejection:

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.
[…]
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.
[…]
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)
[Emphasis added]. @paras 40, 43 and 45

DM

 

Tinker: The Answer, for now

Edward Tinker was convicted of uttering threats and breach. He decided to challenge the constitutional validity of the victim surcharge, a mandatory order to be imposed under section 737 of the Code. Tinker challenged the surcharge under sections 7 and 12 of the Charter. At the first instance motion, Beninger J drew the following conclusions: 2014 ONCJ 208.

First, that the surcharge is a form of punishment [@para16]. In so concluding, Beninger J adopted the analysis by Schnall J in R v Flaro, 2014 ONCJ 2.

Second, that the surcharge impacts on security of the person. In coming to this conclusion, Beninger J rejected the Crown’s position that granting time to pay relieves against this impact [@paras20-21].

Third, that the surcharge infringes on security of the person in a manner that is not in accordance with the principles of fundamental justice; it is “arbitrary, overreaching, and grossly disproportionate” [@para34]. In coming to that conclusion, Beninger J reviewed the law on section 7, relying primarily on Canada (Attorney General) v Bedford, 2013 SCC 72. Notably, in relation to gross disproportionality, Beninger J set out the test from R v Nur, 2013 ONCA 677 (a test set out in that case under the section 12 analysis).

The Crown appealed: 2015 ONSC 2284.

On appeal, Glass J rejected the conclusions that the surcharge was punishment and held that it did not violate the principles of fundamental justice in section 7.

First, Glass J held that the surcharge is not punishment. Glass J held that the surcharge was not a sanction in its own right, “[r]ather, the surcharge is a sum of money that goes into a pool of resources to help victims of crime. Just as there are requirements for providing DNA samples upon conviction of offences and they are not sanctions, so do victim surcharges become requirements without being penalties” [@para29].

Second, Glass J held that the surcharge is not grossly disproportionate. In doing so, Glass J noted that the ability to grant time to pay was an appropriate response to the present inability to pay: see R v Wu, 2003 SCC 73. Glass J concluded:

The case before me is a far cry from being grossly disproportionate for the persons involved and further when applied to reasonable hypotheticals.  With each Defendant, the conviction is made on summary conviction leading to a consideration of a surcharge of $100 each. The persons involved are not well-to-do persons. They have an economic life style that is very humble. However, there is a means of granting them significant time to pay the surcharges. The Crown has indicated a willingness to allow 2 years for payment. I  might add that if there were some of the surcharges still outstanding at the end of 2 years, the person could apply for another extension. The same reasoning for the individual Defendants would apply to others in general in our society. [@para33].

Third, Glass J held that the surcharge was not “too broad a sweep against persons” or an inherently “bad law” as defined in Bedford.

Tinker is the first appellate decision on the constitutional validity of the surcharge. Its impact is significant. It has resolved, for now, much debate in the provincial court over this issue: see for example the discussion in R v Frail, 2014 ONCJ 744. It is difficult to conceive of any sustainable argument that would distinguish its binding authority: see generally R v Malmo-Levine, 2003 SCC 74. Some arguments may be conceived. Those arguments are likely to fail. 

DM

 

 

New & Notable: Clarifying and Safeguarding Crown Discretion

Frederick Anderson was charged with over 80. He pleaded guilty. Prior to his plea he was served with a Notice of increased penalty. At sentencing the Crown intended to prove that Notice was served; the result being that Anderson would be subject to a minimum sentence of 120 days (Anderson had four prior convictions). 

Anderson sought to challenge the filing of notice alleging it breached section 7 of the Charter. In particular, he alleged that the Crown was obliged to consider his Aboriginal status. The Crown’s position was that the filing of Notice was a matter of prosecutorial discretion reviewable only through a finding of abuse of process. The matter ultimately made its way to the Supreme Court: 2014 SCC 41.

In considering the appeal the Court considered two issues. First, is the Crown required to consider the Aboriginal status of the offender in filing Notice of increased penalty. Second, whether filing the Notice is a matter of “core” prosecutorial discretion and on what basis can the exercise of Crown discretion be reviewed.

With respect to the first issue, the Court rejected the notion that the Crown was required to consider Aboriginal status for two reasons.

First, consideration of the Gladue principles is the responsibility of the judge not the Crown:

Importantly, both Gladue and Ipeelee speak to the sentencing obligations of judges to craft a proportionate sentence for Aboriginal offenders. They make no mention of prosecutorial discretion and do not support Mr. Anderson’s argument that prosecutors must consider Aboriginal status when making a decision that limits the sentencing options available to a judge. Mr. Anderson’s argument in effect equates the duty of the judge and the prosecutor, but there is no basis in law to support equating their distinct roles in the sentencing process. It is the judge’s responsibility to impose sentence; likewise, it is the judge’s responsibility, within the applicable legal parameters, to craft a proportionate sentence. If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged [para 25].

Second, the argument that Aboriginal status must be considered by the Crown relies on a principle of fundamental justice that the Court held is not valid: “The principle contended for by Mr. Anderson does not meet the second requirement that it enjoy consensus as a principle that is fundamental to the way in which the legal system ought to fairly operate” [para 30]. In concluding on this point the Court noted that accepting this principle would significantly impact on the role of the Crown and “hobble” them in their decision making processes:

We must begin by acknowledging that the principle advanced by Mr. Anderson would enormously expand the scope of judicial review of discretionary decisions made by prosecutors. In doing so, it puts at risk the adversarial nature of our criminal justice system by hobbling Crown prosecutors in the performance of their work and by inviting judicial oversight of the numerous decisions that Crown prosecutors make on a daily basis [para 31].

With respect to the second issue, the Court addressed two points.

First, the Court considered the scope of Crown discretion. In doing so it held that there has been a lack of clarity in the law regarding the scope of Crown discretion. The development of “core” discretion is not helpful and should be eliminated. In its place, the Court held that all discretionary decisions are to be treated equally and, importantly, the list of such decisions are not closed or fixed:

In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.

In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making [paras 44-45].

Second, the Court considered the issue of when and how the exercise of Crown discretion may be reviewed. In doing so, it noted that “[m]anifestly, prosecutorial discretion is entitled to considerable deference” [para 48]. The review of prosecutorial discretion, the Court held, is reviewable only for abuse of process – which “refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system” [para 50]. In stressing this point the Court noted that to the “extent the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, respectfully, it should not be followed” [para 51].

Having set the standard for review, the Court also noted that before the Crown is required to reply to such allegations, an evidentiary basis must be established [para 55].

In conclusion, the Court held:

Parliament has expressly conferred on the Crown the discretion to tender the Notice at the sentencing hearing through the governing provisions of the Code. This discretion is consistent with our constitutional traditions. As the Crown points out, tendering the Notice is not simply a decision as to what submissions will be made at a sentencing hearing (A.F., at para. 119). Tendering the Notice fundamentally alters the extent of prosecution — specifically, the extent of the jeopardy facing the accused. In this respect, the Crown’s decision to tender the Notice is analogous to the decision to proceed with charges that attract a mandatory minimum sentence when other related offences have no mandatory minimum sentence; the decision to proceed by indictment rather than summary conviction when different mandatory minimum sentences are involved; and the decision to proceed by indictment rather than by summary conviction when that decision precludes certain sentencing options.

For these reasons, I conclude that tendering the Notice is a matter of prosecutorial discretion. As a result, it is reviewable only for abuse of process.  In the complete absence of any evidence to support it, Mr. Anderson’s abuse of process argument must fail [paras 62-63].

Anderson is a very helpful decision beyond the specific issues it addresses for a number of reasons.

First, it has clarified the scope of Crown discretion. It has done away with the “core” dichotomy and it has recognized there is not a closed list of discretionary powers or decisions.

Second, it has held that review of such discretion is only permitted for abuse of process.

Third, it has held that an evidentiary basis is required before the Crown needs to respond to challenges to the exercise of its discretion.

Fourth, the Court recognizes that to the extent a regime results in a disproportionate sentence it can be challenged – short of which it must be applied.

DGM