Court File and Parties

Ontario Court of Justice

Date: 2017-12-06

Court File No.: Newmarket 16-02198

Between:

Her Majesty the Queen

— and —

Erhard Haniffa

Ruling on the Effect of a Superior Court Declaration of Invalidity

Heard: December 5, 2017

Released: December 6, 2017

Counsel:

Ms. Kellie Hutchison — counsel for the Crown

Mr. Boris Bytensky — counsel for the defendant

KENKEL J.:

Introduction

[1] What is the effect of a Superior Court declaration pursuant to s.52 of the Charter of Rights and Freedoms that a law is inconsistent with the Charter? The defence submits that a s.52 declaration deletes the offending provision and it is not open to the Crown to revisit the issue in subsequent cases. The Crown submits that despite a declaration, courts of coordinate jurisdiction may continue to consider the same issue constrained only by principles of comity. The Crown submits that two Superior Court declarations that have found a mandatory minimum sentence relevant to this case unconstitutional are "clearly wrong" and should not be followed by this court. The Crown applies to determine whether this court has jurisdiction to revisit that issue.

[2] For the reasons that follow, I find that:

• A declaration of invalidity pursuant to s.52 of the Charter by a court of competent jurisdiction by its terms renders a law of no force and effect in that province.

• A s.52 declaration is a unique constitutional remedy and the general principles of comity that relate to other legal rulings at trial do not apply.

• A s.52 declaration is binding upon all parties and can only be challenged on appeal. It is not open to the Crown to re-argue the issue in subsequent cases.

The Minimum Sentences at Issue

[3] Mr. Haniffa was found guilty at trial of two offences that carry statutory minimum sentences: s.172.1(2) and s.286.1(2). The statutory minimum sentence of one year imprisonment with respect to the s.172.1(2)(a) offence was declared to be of no force and effect in the case of R v Morrison 2017 ONCA 582.

[4] The statutory minimum sentence with respect to the s.286.1(2) offence has been found to be unconstitutional in two Ontario cases – R v Badali 2016 ONSC 788 and R c Lalonde 2017 ONCS 2181. The British Columbia Court of Appeal reached the same conclusion in R v JLM 2017 BCCA 258. Both parties agree the declaration in JLM applies only in that province.

[5] In Badali Justice Glass invoked s.52 of the Constitution Act 1982 Charter of Rights and Freedoms (hereinafter referred as the Charter) and declared that the offending section (now s.286.1(2)) is of no force and effect. In Lalonde at paragraphs 15 – 17 the court agreed with Badali and issued a further declaration that the same law was unconstitutional. Both parties agree these findings regarding the prior s.212 apply to the current s.286.1 provisions.

Charter s.52 Declaration of Invalidity

[6] Section 52 of the Charter is known as the "supremacy clause." It provides that the Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is of no force and effect. Section 52 provides a remedy for laws that violate the Charter while section 24 provides remedies for actions of a government that violate the Charter – R v Ferguson 2008 SCC 6 at para 61. Where a law produces an unconstitutional effect, a court with jurisdiction to issue a declaration may issue an order under s.52 of the Charter declaring that the law is of no force and effect to the extent it is inconsistent with the Charter – Ferguson at para 59.

[7] Where only a portion of a provision or statute violates the Constitution, courts have employed various techniques including severance, reading in and reading down in appropriate cases to save the portions of the law that are constitutional – Schachter v Canada. Where an unconstitutional provision cannot be severed or read down, as is the case with mandatory minimum sentences, it must be struck down – R v Ferguson 2008 SCC 6 at para 65.

[8] A s.52 declaration renders the unconstitutional provision of no force and effect, not merely in the case at hand but applicable to all as "effectively removed from the statute books" – Ferguson at para 65. The declaration establishes the invalidity of that provision for all future cases – Nova Scotia (Workers' Compensation Board) v Martin 2003 SCC 54 at para 31.

[9] A section 52 declaration is binding on the Crown and can only be altered on appeal. As a result, there is no constitutional issue that remains "in question" in subsequent cases – R v Sarmales 2017 ONSC 1869 at para 20. It's not open to another trial judge to uphold the constitutionality of a law that has been previously declared invalid pursuant to s.52 – Sarmales at para 21 and R v Ali 2017 ONSC 4531 at para 14. Given the unique effect of a s.52 declaration, courts have the power to suspend the declaration of invalidity for a time to permit Parliament or a legislature to respond where it is necessary to do so in the public interest – Schachter v Canada at paras 78-83.

[10] Provincial court judges do not have the authority to make a declaration that a law is of no force and effect under s.52(1) of the Charter. They do have the authority to determine the constitutionality of a statute in relation to the matter before them and to make a finding in that regard – R v Lloyd 2016 SCC 13 at para 15. The effect of a finding by a provincial court judge that a law is unconstitutional in the context of a particular case is to permit the judge to refuse to apply that law. That trial finding does not render the law of no force and effect under s.52 of the Charter – Lloyd at para 18. It is open to other trial courts to follow that legal ruling or to reject it and the standard principles of comity apply.

Should Comity Principles Apply to a s.52 Declaration?

[11] The term "comity" refers to the application of stare decisis among courts of co-ordinate jurisdiction. While no statutory or common law rule binds one trial court to follow the decision of another on a point of law, courts can promote certainty in the law by following the legal rulings of other trial judges – R v Northern Electric Co Ltd at para 31. It's mentioned in Northern Electric that the rule is more flexible in criminal cases, but Justice Strathy in R v Scarlett 2013 ONSC 562 explained at para 43 that there should be cogent reasons to depart from a prior decision:

Reasons to depart from a decision … include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.

[12] The Crown notes that the decision in Scarlett involved consideration of a prior s.52 declaration striking down a mandatory minimum sentence. The court referred to principles of comity as one reason not to revisit the issue. The Crown submits that other courts have also referred to principles of comity on this point – R v Hussein 2017 ONSC 4202, R v Tran 2017 ONSC 651, R v Pham 2016 ONSC 5312. The Crown submits that the reference to principles of stare decisis show that it is open to other trial courts to choose whether or not to abide by a prior s.52 declaration subject to the "clearly wrong" stare decisis standard.

[13] In Scarlett, the court determined that a sentence of three years was appropriate whether or not there was a mandatory minimum. The court explained the effect of the prior declaration of invalidity in relation to the minimum sentence at paragraphs 33 – 42. The declaration in the prior case rendered the minimum sentence provision "void and of no effect not only in that case, but in all future cases." "The declaration applies not merely to the parties immediately before the court, but to the whole world." – para 36. Justice Strathy noted at paragraph 42 that in R v Ferguson 2008 SCC 6, Chief Justice McLachlin "expressly rejected the notion that, after a declaration of invalidity in one case, the courts should continue to consider the issue on a case-by-case basis."

[14] The Scarlett decision set out the unique nature of the s.52 remedy and its immediate and binding effect on all other trial courts. The court then added that principles of comity would also lead to the same result. This application is based on those added comments. The Crown submits that they show a s.52 declaration is a ruling on a point of law like any other and is not binding upon courts of co-ordinate jurisdiction. The recent Superior Court decisions referred to above appear to differ on this issue.

[15] If the Crown is right then the constitutional remedy of a declaration under s. 52 of the Charter loses much of its effect. Without appealing a declaration the Crown could continue to challenge that decision in subsequent cases. Continued review subject only to the principles of comity effectively removes the important distinction set by the Supreme Court in Lloyd between a declaration by a Superior Court and a finding of unconstitutionality in a criminal trial by a provincial court judge which is binding only upon the parties in that case.

[16] In my view, a s.52 declaration is not just another legal ruling. By its terms it renders laws inconsistent with the Constitution "of no force and effect." That's why the remedy has been described as a "blunt tool" (Ferguson at para 38) and courts have suspended declarations for limited periods where necessary in the public interest.

[17] Courts can and do disagree about the interpretation of certain laws, but until the disagreement is resolved by an appellate court the law remains in effect. Conflict regarding a s.52 declaration of invalidity is different. To permit conflicting decisions about the constitutionality of a law after that law has been declared of no force and effect would leave the community uncertain as to whether they are bound by that law. This violates a fundamental tenet of the rule of law identified by the Supreme Court of Canada in this context in Ferguson at para 72 – the right of citizens to know what the law is in advance and govern their conduct accordingly.

[18] The potential for conflicting decisions on this point is very real. The Crown did not appeal the declaration in Badali. (See the discussion on this point in R v JLM at paras 57 and 58) The challenge by the Crown to the legal status of the declarations in Badali and Lalonde is being brought not just in this case but in multiple cases in this courthouse.

Court of Co-Ordinate Jurisdiction

[19] In the alternative, if a declaration binds other courts of co-ordinate jurisdiction only on the basis of comity, it's still not plain that this court has jurisdiction to revisit the issue. The Crown submits that legal rulings from the Superior Court sitting as a trial court are not binding on other trial courts subject to the principles of stare decisis. That statement is generally correct, however the rulings in Badali and Lalonde are not typical legal rulings. They are s.52 constitutional declarations by a court of inherent jurisdiction. A provincial court has no power to issue such a declaration – Lloyd at para 15 and I find is not a court of co-ordinate jurisdiction where the Superior Court has exercised that special authority.

Conclusion

[20] I find that the declaration issued by Justice Glass in Badali pursuant to s.52 removes the mandatory minimum sentence provisions at issue as unconstitutional. That declaration applies to all cases and it is not open to this court to revisit the issue. With great respect to the very learned Justices who have referred to principles of comity in this context, I find reference to those principles is unnecessary given the unique nature of the s.52 constitutional remedy.

[21] In my view this interpretation is consistent with the express terms of s.52 of the Charter, consistent with the Supreme Court's instruction with respect to the effect of that remedy in Ferguson and other cases, and consistent with a fundamental principle of the rule of law – that citizens are entitled to know with certainty what laws are in effect at a given time.

[22] The Crown's application is dismissed.

December 6, 2017.

Hon. Joseph F. Kenkel