Julie Jai

The Attorney General of Canada brought a motion to stay the judgment of the Superior Court of Justice, which struck down several prostitution-related provisions of the Criminal Code as unconstitutional, pending appeal.

The moving party argued that the judgment created a legislative void with profound implications for the public interest.

Applying the RJR-MacDonald test, the court found that there was a serious issue to be tried, the government would suffer irreparable harm to the public interest without a stay, and the balance of convenience favoured maintaining the status quo.

The motion was granted and the judgment was stayed for a limited period to permit appellate review.

The Crown appealed the conditional sentences imposed on two black single mothers who pleaded guilty to importing cocaine.

The trial judge had introduced his own research on systemic racial and gender bias, concluding these factors mitigated their culpability and justified conditional sentences.

The Court of Appeal held that the trial judge overstepped his role by acting as advocate, witness, and judge, and erred in principle by imposing conditional sentences for a serious offence like importing cocaine.

Although the appropriate sentences would have been custodial terms of 20 months and two years less a day, the Court dismissed the appeal because the respondents had already served 17 months of their conditional sentences, and incarcerating them now would cause undue hardship.

The respondent, a young black single mother, was convicted of importing 733.4 grams of cocaine.

The trial judge imposed a conditional sentence of two years less a day, citing systemic racial and gender bias, delay, and the risk of deportation as mitigating factors.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, finding that the trial judge erred in adjusting the cocaine's weight for purity to avoid the three-to-five-year sentencing range established in Madden.

The Court further held that systemic bias, delay, and deportation risk did not justify a conditional sentence in this case.

The sentence was varied to 20 months' incarceration, giving credit for time served on the conditional sentence.