Court File and Parties
Court File No.: 8397 Date: 2017/06/02
Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent And: O’Neil Augustus Harriott, Applicant
Counsel: Scott Wheildon, for the Respondent Scott Reid, for the Applicant Lavinia Latham and Danardo Jones, for the Intervenor
Heard: May 29, 30, 2017
Reasons for Judgment
Justice Skarica
Overview
[1] The accused, O’Neil Harriott (Harriott), was acquitted by a jury on three counts of trafficking in cocaine (counts 1 -3), convicted of one count of trafficking in cocaine (count 5) and convicted of one count of weapons trafficking (count 4). The counts Harriott was acquitted of involved actual sales of cocaine to an undercover officer. The only possible defence was duress, which the jury accepted for those three counts.
[2] The accused, Harriott, was convicted of trafficking in a handgun and one count of trafficking in cocaine. Both convictions involved offers to traffic, and there was no exchange of money, cocaine or weapons on the offences the accused was convicted of. The accused raised a defence of duress for those offences as well, but the jury rejected the duress defence for those two offences.
[3] Ironically, even though no actual exchange of items took place, the most serious charge appears to be the weapons trafficking charge, which contains a statutory mandatory minimum sentence of three years.
[4] The defence brings a constitutional challenge pursuant to section 52(1) of the Constitution Act, 1982 that section 99(2)(a) of the Criminal Code violates sections 15, 7 and 12 of the Charter, and cannot be saved by section 1 of the Charter.
Issues
[5] The issues to be determined are:
- Is the three year statutory minimum mandatory sentence imposed by the Criminal Code weapons trafficking provision in section 99(2)(a) constitutionally valid?
- What is the appropriate sentence in the unique circumstances of this case?
Facts
[6] As indicated, the jury found the accused not guilty on the basis of duress on counts 1 through 3, but rejected the defence of duress on counts 4 and 5. Given that the defence of duress was advanced on all counts, it is not clear on what exact facts the jury based their verdicts on.
[7] Where the basis of the jury’s verdict is unclear, the correct principle is that the sentencing judge should make his or her own independent determination of the facts, consistent with the jury’s verdict. See R. v. Roncaioli, 2011 ONCA 378; [2011] O.J. No. 2167 (C.A.) at para. 59.
[8] Regarding count 1, (trafficking in cocaine), on March 22, 2013, the accused sold 2.67 grams of cocaine to an undercover officer, Constable Tamayo, for approximately $250.
[9] Regarding count 2, (trafficking in cocaine), on April 2, 2013, the accused sold 7.9 grams of cocaine to Constable Tamayo in exchange for a $500 payment.
[10] Regarding count 3, (trafficking in cocaine), the police had obtained a court authorization to intercept and record conversations between the accused and the undercover officer, Constable Tamayo. On April 15, 2013, a transaction occurred that was audio and videotaped, and the accused sold 7.25 grams of cocaine to the undercover officer for $500.
[11] Regarding count 4, (offer to transfer a handgun), during the count 3 drug transaction on April 15, 2013, the officer, asked the accused if the accused could sell him a machine (handgun). The accused indicated he could get a handgun for the officer. From April 15, 2013 to May 2, 2013 there are a number of conversations between the accused and officer where the officer repeatedly asks about the handgun and the accused assures the officer he can get a handgun for the officer. On April 20, 2013, the officer asked for a picture of the handgun. In cross-examination, Constable Tamayo indicated that he was never shown a firearm, was never provided a picture despite his requests, and that from April 15, 2013 to May 2, 2013, the officer tried to procure a handgun but never obtained one. After May 2, 2013, there were no more conversations about obtaining a handgun.
[12] Regarding count 5, (trafficking in cocaine), Constable Tamayo, on May 13, 2013, asked the accused if the officer could buy 2 ounces of cocaine. The accused said that he could do it today and would travel to London immediately to sell it to Constable Tamayo, but the officer said he needed to get the money and wanted to do it the next day. The second call on May 13, 2013, involved the officer phoning to arrange the purchase of cocaine for the next day. The accused said he could sell 1 ounce of cocaine for $2,000. The officer says he wanted to do 2 ounces for sure and asked if he could buy 4 ounces tomorrow. The accused said he wanted to do the transaction right now but the officer said he couldn’t because he was with his girlfriend. The truth was that the officer did not have the money in hand at that time. A man named Bones contacted the officer shortly after this interaction, and the deal fell apart. The undercover sting operation ended at that time as Officer Tamayo’s safety could no longer be assured. The accused was arrested shortly thereafter.
[13] The man named Bones was identified as Keith Pascoe (Bones). Officer Tamayo testified that Bones had a lengthy criminal record that included convictions for possession of weapons, assault, mischief, harassing phone calls, breaches of court orders, possession of heroin for the purpose of trafficking. There were numerous withdrawals of serious criminal offences. On October 19, 2015 Bones received a sentence of 4 years and 8 months. There can be no doubt that Bones is a violent drug dealer who threatens people and has access to weapons. Officer Tamayo testified that Bones was trafficking in cocaine and heroin in 2013 while he was on bail for heroin trafficking, and that he did so until Bones’ conviction in 2015.
[14] Officer Tamayo indicated in cross-examination that top level drug dealers get lower level drug dealers and drug addicts to do their dirty work for them. They give future addicts free drugs to get them addicted. Once addicted, these addicts are told that there are debts owing for these drugs, and that the addicts now have to work it off if they do not have the money. If the addicts do not agree, they and their family and/or friends are threatened.
[15] Officer Tamayo testified that he is familiar with the Jamaican drug culture. Jamaican gangs provide free drugs to a future addict, and once the addict is addicted, they are told they owe a debt that must be paid off. If the addict does not have the money, he is used to transport drugs and deliver money to the drug trafficker. If the addict refuses to co-operate, violence is used and/or threatened against the addict, his family and/or friends. The level of violence can extend up to murder. In Jamaica, the police are corrupt and often work hand in hand with the drug traffickers.
[16] The accused testified. He indicated that he was born in Jamaica and is 38 years old. He cannot read and worked as a fisherman in Jamaica. There are plenty of gangs in Jamaica who kill people and/or their families for cocaine. The police are very corrupt, sometimes kill innocent people, and are connected to the drug gangs. In 2009, the accused left Jamaica to better his life in Canada.
[17] Regarding Bones, the accused met him in 2013. The accused told Bones that Harriott did not have a job and had lost contact with his children. Bones gave weed and crack cocaine to the accused. At first, Bones said the drugs were free, but then said the accused owed Bones $5,000 for the drugs. The accused, Harriott, did not have the money and had no way to get it. Bones was angry and knew where Harriott lived and knew where Harriott’s family in Jamaica lived. Bones told Harriott that he would kill him and put his body in a lake where it would never be found. Harriott was scared for himself and his family, and was aware that drug dealers could get to him or his family. Harriott testified that he has seen this happen.
[18] Bones had a knife on him every day, which he threatened Harriott with. He told Harriott that he would cut him to pieces. Bones told Harriott that he owned him and could do anything he wants.
[19] Harriott had become addicted to drugs, and agreed to deliver crack cocaine for Bones and return the money to Bones. Harriott agreed to traffic drugs for Bones because he believed Bones’ threats that Bones would kill Harriott and/or his family. Harriott would deliver the drugs and return all the money to Bones. Harriott, due to his addiction, would break off some cocaine and use it, and then deliver the rest. Harriott owed Bones and was paying off his debt. Harriott did not want to traffic in drugs but did it to protect his family. Harriott did not trust the Canadian police due to his experiences in Jamaica, where he knew the police are corrupt and kill innocent people.
[20] Regarding count 4, (the offer to sell a handgun count), the accused explained that he does not deal with guns. The accused indicated that when he delivered the drugs on the video dated April 15, 2013, the officer asked about getting a machine and he understood the officer wanted to buy a handgun. The accused did not want the officer to know he did not know anyone with a gun. The officer was pressuring Harriott and Harriott did not want the officer to think Harriott was stupid. He also worried that the officer would look somewhere else to get cocaine. Harriott knew Bones would be mad if Harriott was letting customers go elsewhere for cocaine.
[21] The accused testified that he did not have a gun and neither did Bones. No one told Harriott they had a gun to sell. Harriott never intended to get a gun to sell to the officer. Harriott had no gun and knew no one who had one. Accordingly, Harriott was unable to provide photos to the officer. No gun or firearm was ever located in the police investigation.
[22] Regarding count 5, (traffic in cocaine), the accused testified that he had never seen 2 ounces of cocaine and was not serious in agreeing to provide 2 ounces of cocaine. However, on May 13-14, 2013 he told Constable Tamayo he could get 2 ounces of cocaine and wanted Constable Tamayo to believe he could get it. There was talk in the second May 13 conversation about 4 ounces of cocaine. Harriott never saw 4 ounces of cocaine. The bottom line was that Harriott’s plan was to get the money up front from the officer and then pay off Bones with the approximate $5,000 that he would get from the officer. Basically, Harriott was going to do a “drug rip off” of the officer.
[23] The jury acquitted the accused of the first three drug trafficking charges where there had been an actual exchange of money and drugs. I conclude that the jury believed that the accused (or at least had a reasonable doubt) was drug trafficking due to his fear from threats of violence against him and/or his family by Bones. In short, the jury acquitted the accused of the first three counts of drug trafficking because they accepted the accused’s defence of duress.
[24] The facts underpinning the accused’s duress were still operating at the time of the count 4 and 5 weapons and drug trafficking charges, where there was no exchange of money and no drugs and/or handguns were provided to the officer. Yet the jury convicted the accused of counts 4 and 5. I find that the jury must have found that the offers to sell a handgun and 2 ounces of cocaine were not done at the behest of Bones, and were initiated by Harriott for his own purposes (i.e. not losing a customer and pursuant to a plan to do a drug rip off in order to pay off Bones). Accordingly, regarding counts 4 and 5, the Crown proved beyond a reasonable doubt that Bones’ threats did not cause Harriott to make offers to transfer a firearm and provide 2 ounces of cocaine. Given the evidence before me that Bones was the sole source of Harriott’s trafficking, I find that the offers to sell a handgun (which Bones did not have and Harriott had no access to any guns) and 2 ounces of cocaine (Bones had in counts 1 through 3 provided smaller amounts of about a quarter ounce to Harriott) were genuine but hollow offers that Harriott had no intention of following through on.
[25] Accordingly, the accused is to be sentenced on a factual scenario that involves offers to sell a handgun and 2 ounces of cocaine, both of which the accused had no intention of ever providing and was unable to provide. However, the accused intended that the officer take the offers to sell a handgun and 2 ounces of cocaine as genuine and serious offers. The accused was operating under threats of violence (short of the defence of duress) from a dangerous and violent drug trafficker, and his motive was to keep the officer as a drug customer with the ultimate intention of ripping the officer off for $5,000 in order to pay off Bones and escape from Bones’ control.
[26] The next question to be addressed is the constitutional validity of the three year mandatory minimum sentence required by section 99(2)(a) of the Criminal Code regarding count 4.
Law
Section 12 of the Charter – Cruel and Unusual Punishment
[27] Section 12 of the Canadian Charter of Rights and Freedoms indicates, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
[28] A sentence will be cruel and unusual only if it is grossly disproportionate in the context of the offence, and the offender, having regard to a number of sentencing-related factors. This test sets a high bar and is aimed at punishments that are more than merely excessive. Justice McLachlin in the leading case of R. v. Nur, 2015 SCC 15, defines the test as follows at para. 39:
39 This Court has set a high bar for what constitutes "cruel and unusual ... punishment" under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he then was) explained at p. 1072 that the test of gross disproportionality "is aimed at punishments that are more than merely excessive". He added, "[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation". A prescribed sentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionate impact on others, rendering the law unconstitutional.
[29] Pursuant to Nur [SCC] at para. 46, a challenge to a mandatory minimum sentence on the ground that it constitutes cruel and unusual punishment under section 12 of the Charter involves two steps:
- The court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court may consider not only the offender’s situation but consider other reasonably foreseeable situations where the impugned law may apply. The focus must be on “reasonable hypothetical circumstances as opposed to far fetched or marginally imaginable cases.” See Nur [SCC] at paras. 46, 54, 58, 65, 77.
- Then the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with section 12 and will fall unless justified under section 1 of the Charter. See Nur [SCC] at para. 46.
Step 1 – Determination of a Proportionate Sentence
[30] In determining the appropriate sentence, Justice McLachlin in Nur [SCC] outlines the factors to be considered at paras. 40-46:
40 In determining an appropriate sentence for purposes of the comparison demanded by this analysis, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which instructs the sentencing judge as follows:
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
41 The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2 (c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).
42 In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
43 It is no surprise, in view of the constraints on sentencing, that imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 80. "Only if this is so can the public be satisfied that the offender 'deserved' the punishment he received and feel a confidence in the fairness and rationality of the system" (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533, per Wilson J.). As LeBel J. explained in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433:
- Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system... . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [para. 37]
44 Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.
45 General deterrence -- using sentencing to send a message to discourage others from offending -- is relevant. But it cannot, without more, sanitize a sentence against gross disproportionality: "General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual" (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 45, per Gonthier J.). Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.
46 To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.
[31] Justice Doherty in R. v. Nur, 2013 ONCA 677, aff’d 2015 SCC 15, outlines the factors that underline the gross disproportionality analysis at paras. 78, 79:
78 A number of factors may inform the gross disproportionality analysis, both as it applies to the particular accused and to reasonable hypotheticals: see Smith, at p. 1073; Goltz, at paras. 25-27; and Morrisey, at paras. 27-28. The factors identified in the case law are:
- the gravity of the offence;
- the personal characteristics of the offender;
- the particular circumstances of the case;
- the actual effect of the punishment on the individual;
- the penological goals and sentencing principles reflected in the challenged minimum;
- the existence of valid effective alternatives to the mandatory minimum; and
- a comparison of punishments imposed for other similar crimes.
79 There is no formula to be applied in weighing and assessing the various factors in any given case: R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at para. 75. Several of the factors are self-explanatory; however, the gravity of the offence, the actual effect of the punishment on the individual, and the impact of penological goals and sentencing principles require further comment.
Appropriate Sentence – The Accused Harriott
[32] Regarding the accused’s particular circumstances, Harriott was 34 years of age at the time of the offences. He has one conviction for failing to comply with a recognizance in March of 2012, and successfully completed a one year probation term before committing these offences. He has been on a form of house arrest from June of 2013 until his convictions in November of 2016, and he has not violated his bail. His work record is spotty. He emigrated from Jamaica in 2009 in order to pursue a better life in Canada. He has no history of violence or using/possessing weapons. As I indicated in my summary of the facts in this case, the accused made a hollow offer to sell a handgun without any intent to in fact sell one. The officer initiated the discussion and pressured the accused to make the offer to sell a handgun. No handgun was ever produced and I am satisfied on the evidence that the accused had no access to a handgun and no means to obtain one. The accused at the time was under the control of a dangerous and violent drug trafficker.
[33] Sentences imposed for other or similar crimes in the same jurisdiction may be considered. See R. v. Tran, 2017 ONSC 651 at para. 38.
[34] In R. v. Christopher Lewis, an unreported decision of Justice Bellefontaine of the Ontario Court of Justice, Central East Region, dated July 6, 2012, the accused offered to sell a handgun to an undercover officer but the accused had no access to a handgun and never intended to carry through with the offer to transfer a firearm. These facts are analogous to the fact situation that I am dealing with. Justice Bellefontaine held, at page 6, that the hollow offer that formed the basis of that charge “has been seen to be a less serious offence than the actual possession of a firearm.”
[35] Unlike Harriott, Christopher Lewis was 20 years of age and had a very significant record that included violence and Lewis was labelled by the court as a violent recidivist. Justice Bellefontaine concluded on the facts that Mr. Lewis’ criminal culpability was at the low end of the spectrum of offences, but given the significant criminal antecedents, the court would impose a one year sentence consecutive to the drug offences. This one year sentence was well below the three year mandatory minimum. After considering a hypothetical of a youth with no record making the same type of hollow offer, Justice Bellefontaine held that the mandatory three year minimum in section 99 violated section 12 of the Charter and was not saved by a section 1 of the Charter analysis. Justice Bellefontaine sentenced the accused to one year consecutive on the section 99 charge for a total sentence of three years.
[36] If the Lewis sentence for a hollow offer of a gun sale by a criminal recidivist was worth one year consecutive to drug trafficking charges, in my opinion, the hollow offer made by Harriott, who has a minimal criminal record, should be worth less than a year. It seems to me that a 3 to 6 month sentence would be the appropriate range of sentence for Harriott for his hollow offer to sell a gun, which he had no intention of ever selling and had no access to. If a three year sentence is cruel and unusual punishment for Mr. Lewis’ circumstances due to the fact that a one year sentence is appropriate, then it follows that a three year sentence is cruel and unusual punishment where the appropriate sentence is in a range of 3 – 6 months.
Appropriate Sentence – Reasonable Hypotheticals
[37] In R. v. Hussain, 2015 ONSC 7115, my colleague Justice Edwards considered the constitutional validity of the three year mandatory minimum in section 99(2) of the Criminal Code. I agree with the following analysis as outlined in paras. 96 – 106:
Analysis Re Section 99 (2) Mandatory Minimum
96 The Crown in its written and oral submissions, in my view, correctly calls in question the validity of the hypotheticals postulated by the defence. That said, the Supreme Court in Nur cautioned that: "we need not focus on a particular hypothetical".
97 The Supreme Court then went on to emphasize that s. 95 (1) foreseeably catches licensing offences which involve little or no moral fault and little to no danger to the public.
98 While an offence under s. 99 (1) incorporates a mens rea component not found in a s. 95, in my view s. 99 casts a net broad enough that it, like s. 95, can capture conduct that involves little to no moral fault and little to no danger to the public.
99 While I agree the hypotheticals advanced by Mr. Hussain are of marginal assistance to the court, for the reasons canvassed in the Crown's factum let me suggest a hypothetical that demonstrates how s. 99 may cast a net wide enough to attract a conviction where the offender cannot be said to have the same degree of moral blameworthiness as Mr. Hussain.
100 Smith is an experienced hunter. He knows that that his brother is coming to Timmins for the first time in decades. They used to hunt together with their father when they were young and Smith knows that his brother, Jones, is a responsible user of a firearm. He equally knows that Jones does not have a Possession and Acquisition Licence or PAL required by the Firearms Act. Section 33 of the Firearms Act allows someone to lend a firearm to another only if the person has reasonable grounds to believe that the borrower holds a licence authorizing the borrower to possess firearms.
101 Smith and Jones have the misfortune to run into an old friend, Henderson, while they were out hunting. Smith and Jones had a falling out with Henderson when they were in high school. Henderson is now employed with the OPP. He decides to lay a charge against Smith under s. 99 (1) when he determines that Jones does not have a PAL. It is conceded that Smith knowingly transferred the gun to Jones, and that Jones didn't have a PAL.
102 The aforesaid example, while demonstrating that Smith had the necessary mens rea, in that he transferred the gun to his brother knowing his brother didn't have the necessary licence, equally - in my view, demonstrates that a three year sentence would be grossly disproportionate to the true criminal offender that s. 99 is designed to catch. In my view, the aforesaid hypothetical demonstrates how the net that it casts can catch not only the true criminal offender but also the offender who in essence has breached licensing requirements of the Firearms Act, and which also involves little moral culpability and little danger to the public.
103 In my view, the following comments of McLachlin C.J. in Nur equally apply to my analysis of s. 99 (1) and (2): Section 95 (1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of 3 years or more, but conduct at the far end of the range may not...At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a 3 year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code. (See: Nur, para. 82)
104 In my hypothetical, Smith may have a higher degree of moral blameworthiness because he knew lending his gun to his brother who had no PAL was wrong. But one is hard pressed to see such an example warranting a three year sentence when the usual sentencing provisions are applied to Smith as mandated by the Code.
105 In coming to the conclusion that s. 99 (2), which imposes a three year minimum mandatory sentence is unconstitutional, I have also considered the recent decision of Radley Walters J. in Shobway. In that regard I agree with his closing comments, where at para. 22 he states: ...I further agree that a 3 year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing as set out in Section 718 of the Criminal Code. I conclude that Section 99(2)(a) breaches Section 12 of the Charter.
106 Mr. Hussain may not fall into the same category as Smith in the hypothetical that I have postulated but it demonstrates why someone who is otherwise a law abiding citizen, who has otherwise committed a fairly benign offence by knowingly lending or transferring his gun to his brother who is not properly licenced, should nonetheless not receive a three year sentence that would normally be associated with fairly serious criminal conduct. I am therefore ruling that s. 99(2) of the Criminal Code breaches s. 12 of the Charter, and is of no force or effect in so far as it imposes a mandatory minimum sentence of three years.
[38] It is to be noted that Justice Edwards is an Ontario Superior Court justice, and is my colleague at the same level of court. The principles of stare decisis suggest that I should follow a previous decision of the same level of court unless specific situations exist. Given that Justice Edwards provided a detailed analysis applying the law as I understand it, there is no good reason for me not to follow the Hussain decision. I recently outlined the relevant principles of stare decisis in R. v. Barreira, 2017 ONSC 2478 at paras. 23-24:
23 In Holmes v. Jarrett (1993), 68 O.R. (3d) 667, [1993] I.L.R. 1-2949 (Ont. Gen. Div.), at pp. 12-15, Granger J. outlined the principle of stare decisis that judges of the Ontario Superior Court of Justice generally adhere to: [The conformity] view suggests that Judges ought to follow previous decisions of their colleagues unless certain specific situations exist. In Re Hansard Spruce Mills Ltd., [1954] 4 DLR 590, 13 WWR (N.S.) 285, Wilson J. stated at p. 286: But, as I said in the Cairney case, I think the power or rather the proper discretionary duty, of a trial judge is more limited. The Court of Appeal, by overriding itself in Bell v. Klein, [1954] B.C.J. No. 152 has settled the law. But I have no power to override a brother judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same court and therefore of the same legal weight. That is the state of affairs which cannot develop in the Court of Appeal. Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another judge of this court if: a) Subsequent decisions have affected the validity of the impugned judgment; b) It is demonstrated that some binding authority in case law or some relevant statute was not considered; c) The Judgment was unconsidered, a nisi prius judgment given in circumstances familiar with all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority. If none of these situations exists, I think a trial judge should follow the decisions of his brother judges. In R. v. Northern Electric Co. Ltd. et al., [1955] 3 DLR 449 (Ont. H.C.) McRuer, C.J. H.C. stated at p. 466: Having regard to all the rights of appeal that now exist in Ontario, I think Hogg J. stated the right common law principle to be applied in his judgment in R. ex rel. McWilliam v. Morris, [1942] O.W.N. 447 where he said: "The doctrine of stare decisis is one long recognized as a principle of our law. Sir Frederick Pollock says, in his First Book of Jurisprudence, 6th ed., p. 321: 'The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and, though not absolutely binding on courts of co-ordinate authority nor on that court itself will be followed in the absence of strong reasons to the contrary'". I think that "strong reason to the contrary" does not mean a strong argumentative reason appealing to the particular Judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think "strong reason to the contrary" is to be construed according to the flexibility of the mind of the particular Judge. According to Chief Justice McRuer and Justice Wilson, the decisions of Judges of coordinate courts are persuasive and should be given considerable weight unless there are very cogent reasons to depart from such decision. Between [the authoritative view and conformity view] lies the proposition as put forward by Justice Wilson and Chief Justice McRuer that Judges ought to feel bound to follow previous decisions of their colleagues, unless certain factors exist to persuade them to decide the case differently. In my opinion, that as it now takes approximately 30 months for the Court of Appeal to review a decision, it is imperative that as much certainty be brought to the law as possible until the Court of Appeal rules on a point and this can be best achieved by following the approach as set out by Chief Justice McRuer. Accordingly, I must follow the Judgments of Rutherford J. and Chadwick J. in Despotopoulos and Torrance unless there is some indication that their decisions were given without consideration of the appropriate statute or that they failed to consider some relevant caselaw. [emphasis added]
24 The Alberta Court of Appeal, in a timely judgment earlier this year, in Imperial Oil v. Flatiron Constructors Canada Ltd., 2017 ABCA 102, confirmed the Holmes v. Jarrett principle at para. 43: Even if Queen's Bench trial judges are not bound by each other, which is a dubious proposition in this context, a legion of cases discuss the general practice that decisions of an ordinary superior court though not absolutely binding on courts of coordinate authority nor on that court itself, will be followed in the absence of strong reasons to the contrary. In Holmes v Jarrett (1993), 68 OR (3d) 667, to cite one example, it is said that the "authoritative view requires judges to follow all previous decisions of their colleagues, allowing the Court of Appeal to correct any error if necessary." It was unreasonable for the chambers judge to categorically conclude that a subsequent judge deciding the appellants' damages will not feel compelled to follow the judgment of a colleague earlier given.
[39] In addition to the Hussain and Lewis decisions, a number of courts have considered a variety of reasonable hypotheticals and all have concluded that the mandatory minimum sentence of three years prescribed by section 99(2)(a) violates section 12 of the Charter, and that the three year mandatory minimum is not constitutionally valid. See R. v. Shobway, 2015 ONCJ 457 at paras. 21, 22, R. v. Friesen, 2015 ABQB 717 at paras. 33 - 37 and R. v. Trepanier, 2016 NBPC 2, 2016 NBPC 02 at paras. 27 – 29.
Step 2 – Does the Mandatory Minimum Sentence Impose a Sentence That Is Grossly Disproportionate to the Fit and Proportionate Sentence?
[40] Regarding Harriott’s personal circumstances, the fit and appropriate sentence for the handgun trafficking charge is 3 – 6 months for reasons that I have already outlined. The mandatory minimum sentence of three years is grossly disproportionate to the fit sentence as the mandatory minimum is anywhere from 6 to 12 times higher than the fit sentence that is appropriate in the circumstances of this case.
[41] Further, as indicated in Hussain and the other authorities cited, reasonable hypotheticals establish that section 99 casts a net that not only captures the true criminal offender, but also the offender who in essence has breached the licencing requirements of the Firearms Act, and who has little moral culpability and exhibits little danger to the public. See for example, Hussain at paras. 102 – 106. For these individuals, the mandatory minimum of three years incarceration requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence.
[42] In the result, the three year minimum mandatory sentence prescribed by section 99(2)(a) is inconsistent with section 12 of the Charter, and will fall unless it can be justified by section 1 of the Charter.
Is the Infringement Justified Under Section 1 of the Charter?
[43] Justice Doherty in Nur [ONCA] suggests that section 1 cannot shelter a cruel and unusual punishment. Justice Doherty indicates at paras.177 – 181:
The Application of Section 1 to the Section 12 Breach
177 All rights and freedoms guaranteed by the Charter are subject to the limitation in s. 1:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
178 The format of the s. 1 analysis is well known: e.g. see Smickle (reasons of Molloy J.), at paras. 97-123. I do not propose to go through the steps of that analysis. Given the very high bar set for a finding that a sentence constitutes cruel and unusual punishment, I find it very difficult to imagine how a sentence that clears that high bar could ever qualify as a reasonable limit demonstrably justified in a free and democratic society.
179 In essence, s. 1 permits what would otherwise be infringements of individual constitutional rights where the societal benefits flowing from the state action that infringes individual rights can "demonstrably" justify that infringement. In my view, the basic quid pro quo underlying s. 1 does not exist where the state imposes punishment that is "so excessive as to outrage standards of decency" and so disproportionate as to be "abhorrent or intolerable" to Canadians: Ferguson, at para. 14. What possible societal benefit could render such punishment "demonstrably justified in a free and democratic society?"
180 No system of criminal justice that would resort to punishments that "outrage standards of decency" in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry. Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system.
181 If an argument can be made that could justify sheltering a sentence that amounted to cruel and unusual punishment under s. 1, I have not heard it. The mandatory minimum penalty of three years imposed under s. 95(2)(a) cannot be saved by s. 1.
[44] I also agree with the comments of Justice Ouellette in Friesen at paras. 37, 38:
37 I see no difference in the application of s. 1 of the Charter to s. 99, or 95 of the Criminal Code. Therefore. I adopt, in its entirety, the reasons of the Supreme Court of Canada in R v Nur. Both ss 95 and 99 have the same purpose which is targeting the issues of gang violence, street violence and illegal activity. Therefore, similar to the analysis of s.95 by the Supreme Court of Canada in Nur, s. 99 does not survive the scrutiny under section 1 and is consequently unconstitutional.
38 Therefore, I declare s. 99 of no force and effect pursuant to s. 52 of the Constitutional Act.
[45] Accordingly, I declare that section 99(2)(a) to be of no force and effect pursuant to section 52 of the Constitution Act, 1982.
[46] Given my decision above, there is no need to consider the defence application under sections 7 and 15 of the Charter.
Issue 2 – What Is the Appropriate and Fit Sentence of the Accused for His Convictions for Count 4 (Offer to Sell a Handgun) and Count 5 (Offer to Sell 2 Ounces of Cocaine)
[47] For reasons provided, the appropriate sentence on the count 4 weapons trafficking charge is 3 – 6 months consecutive to the count 5 cocaine trafficking sentence.
[48] Regarding the count 5 cocaine trafficking count, the accused offered to sell 2 ounces of cocaine in the hope of doing an approximate $5,000 drug rip off of the undercover officer. Trafficking in cocaine is a serious matter and combined with a drug rip off, the potential for violence is increased. The courts have long been aware of the relationship between drug trafficking and violence. See for example, R. v. Goulet, [1995] O.J. No. 340 (C.A.) at para. 4. This is an aggravating factor.
[49] Mitigating factors in favour of the accused are that the accused has a limited record, the accused was under the control of a violent drug trafficker, no drugs were sold and the accused has a variety of children to support. The accused has served approximately 8 months in custody, which gives him a credit of 12 months of time served on a 1.5 to 1 basis.
[50] Further, the accused has spent approximately 3.5 years on a form of house arrest. This is a mitigating factor, but I heard little on exactly how this impacted the accused. Pursuant to R. v. Downes, [2006] O.J. No. 555 (C.A.) at para. 37, I will give the accused an extra 3 months pre-sentence credit for his house arrest bail conditions for a total credit of 15 months time served.
[51] For lower quantities of cocaine trafficking, the range of sentence is from 6 months to 2 years less a day. See, for example, R. v. Woodcock [2002] O.J. No. 4927 (C.A.) at para. 15. In Goulet, the accused was in possession of 54.5 grams of cocaine and received a 3 year sentence.
[52] In the instant case, the accused offered to traffic in 2 ounces or 56 grams of cocaine. He had no intention of delivering the 2 ounces but was prepared to do a drug rip off. Factoring all the mitigating and aggravating factors, a range of 18 months to 2 years less a day is the appropriate sentence.
[53] Accordingly, the range of sentence is 18 months to 24 months less a day on count 5, and 3 to 6 months consecutive on count 4. The range of sentence on both counts is accordingly 21 months to 30 months minus a credit of 15 months pre-trial custody.
[54] The accused has been out of trouble since 2013. There is hope for his rehabilitation. If he gets a further sentence of 6 months or more, he will lose all rights to appeal his deportation and may never see his children again. Accordingly, given the totality and other principles as outlined in section 718 of the Criminal Code, I choose to sentence the accused to the lower end of the range – that is 21 months less a day. Given the accused has served the equivalent of 15 months, the accused is sentenced to a further period of incarceration of a total of 6 months less a day. The accused will be sentenced to a suspended sentence on count 5 (given the 15 months pre-sentence credit) and 6 months less a day consecutive on count 4. In addition, the accused will be placed on three years’ probation on count 5, and will be required to report regularly to a probation officer. He will abstain absolutely from non-medically prescribed drugs, and will take whatever drug treatment programs are recommended by the probation officer.
[55] In addition, the accused will forthwith supply a sample of his DNA and will be prohibited from possessing any weapons for life, as outlined in section 109 of the Criminal Code.
[56] I wish to note that many of the cases I relied upon were provided by the Crown, Scott Wheildon. A number of those cases contradicted the position that Mr. Wheildon argued in court. This honorable approach undertaken by Mr. Wheildon is in the highest tradition of the Crown and exemplifies the notion that the Crown does not win or lose but must act as a Minister of Justice. Mr. Wheildon has conducted himself in a most exemplary fashion and I wish to commend him for it.
Justice Skarica Released: June 2, 2017