R. v. Roach, 2009 ONCA 156

CITATION: R. v. Roach, 2009 ONCA 156

DATE: 20090220

DOCKET: M37273-C48106

COURT OF APPEAL FOR ONTARIO

Doherty, Cronk and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Roach

Appellant

Counsel:

Jennifer A.Y. Trehearne, for the appellant

Christine Bartlett-Hughes and Grace Choi, for the respondent

Read: January 30, 2009

A motion in writing for a determination of the scope of a sentence appeal on an appeal from the conviction entered by Justice Bonnie L. Croll of the Superior Court of Justice dated March 30, 2007 and the sentence imposed on April 17, 2007.

Reasons for Decision

Doherty J.A.:

[1] The appellant was convicted of numerous prostitution-related offences. The convictions included one for the offence created by s. 212(1) (2.1) of the Criminal Code. That offence is directed at persons who live off the avails of prostitutes under eighteen years of age and who use violence or threats of violence in relation to those prostitutes. Counsel for the appellant aptly describes the offence as “aggravated living off the avails of a person under eighteen”. Section 212(1)(2.1) provides for a mandatory minimum sentence of five years in the penitentiary.

[2] The trial judge determined that the appropriate total sentence was five years. She gave the appellant eighteen months’ credit for his pre-trial incarceration resulting in a sentence of three and a half years. In her reasons, the trial judge indicated that but for the mandatory minimum sentence of five years, she would have imposed a shorter sentence.

[3] As part of the appellant’s sentence appeal, he challenges the constitutionality of the five-year mandatory minimum penalty imposed by s. 212(1)(2.1). The appellant submits that the mandatory minimum sentence constitutes cruel and unusual punishment, violates s. 12 of the Charter and is rendered inoperative by s. 52 of the Constitution Act, 1982.

[4] The constitutionality of s. 212(1)(2.1) was not challenged at trial. Counsel at trial attempted to avoid the mandatory minimum by arguing that the Kienapple principle should be applied to stay the conviction entered against the appellant on the s. 212(1)(2.1) charge. The trial judge rejected this argument and it is not renewed on appeal.

[5] After counsel for the appellant had filed her factum in which she raises the constitutional question, Crown counsel requested a case management meeting. She submitted that the appellant should not be allowed to raise the constitutionality of s. 212(1)(2.1) for the first time on appeal. Counsel agreed that the panel scheduled to hear the appeal in May 2009 should decide this preliminary issue based on written submissions. We have received and considered those submissions.

[6] Generally speaking, appeal courts will not entertain arguments not made at trial: Kaiman v. Graham, 2009 ONCA 77, [2009] O.J. No. 324 at paras. 18-19 (C.A.). That general rule applies to constitutional arguments raised for the first time on appeal regardless of whether the arguments invoke the remedial powers of s. 24 of the Charter or the nullifying power in s. 52(1) of the Constitution Act, 1982: e.g. see R. v. L.G. (2007), 2007 ONCA 654, 228 C.C.C. (3d) 194 at para. 43 (Ont. C.A.); R. v. Seo (1986), 1986 CanLII 109 (ON CA), 25 C.C.C. (3d) 385 at 394 (Ont. C.A.).

[7] An appellate court does, however, have the discretion to permit new arguments, including Charter arguments. In exercising that discretion, the appellate court must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed on appeal even though it was not raised at trial. An appellate court will be most inclined to exercise its discretion in favour of hearing a new argument where that new argument can be fully addressed and determined based on the trial record: e.g. see R. v. Sweeney (2000), 2000 CanLII 16878 (ON CA), 148 C.C.C. (3d) 247 at paras. 34-40 (Ont. C.A.). More rarely, an appellate court will hear a new argument based on an evidentiary record laid out for the first time in the court of appeal: e.g. R. v. Seo, supra.

[8] In my view, the more numerous and contentious the evidentiary disputes generated by the material filed on appeal in respect of the issue raised for the first time on appeal, the less likely it is that the appellate court will exercise its discretion in favour of considering the merits of the new argument. While appeal courts do resolve evidentiary disputes from time to time in the course of deciding appeals, appellate procedures are not designed for that purpose. The appellate forum and its procedures are not adapted to the weighing of evidence and the finding of facts. Appeal courts review decisions made at trial. The appeal process is premised on the issues under appeal having been vetted in the trial court and subjected to the reasoned analysis of the trial court. If a new argument put forward on appeal can only be effectively and fairly resolved by conducting what amounts to the trial of an issue or several issues in the appellate court, the appellate court should, absent exceptional circumstances where the interests of justice require otherwise, decline to resolve the new issue raised on appeal.

[9] The nature and number of issues that this court would have to address if it considered the merits of the constitutional argument raised by the appellant become apparent upon a review of the Supreme Court of Canada’s s. 12 jurisprudence. That jurisprudence reveals a somewhat complex two-layered analysis: see R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; R. v. Ferguson (2008), 2008 SCC 6, 228 C.C.C. (3d) 385 (S.C.C.). The cases and the Crown’s written submissions indicate that the issues that will have to be addressed in the constitutional argument include:

• the harm caused by the offence created by s. 212(1)(2.1);

• the effect of the criminalized conduct on the individual victims and the broader community;

• the extent to which the harm done by the prohibited conduct impacts disproportionately on discrete and particularly vulnerable categories of victims;

• the problems associated with the effective prevention and detection of the criminal activity involved in offences under s. 212(1)(2.1);

• the value as a deterrent of mandatory minimum sentences; and

• the legislative intent and purpose of the provision.

[10] Some of the material that the Crown indicates it will file will come from unimpeachable sources and will refer to legislative facts that can be effectively assessed within the context of an appeal.[^1] It is, however, inevitable that some of the material filed by the Crown will contain opinions and factual analysis that will be contentious. It is highly likely that the appellant will have to cross-examine on some of the material put forward by the Crown. It is equally likely that the appellant will want to prepare responding material. Having regard to what the Crown anticipates will be its defence of the constitutionality of the provision, I anticipate a full blown evidentiary battle in respect of at least some of the issues that are central to the appellant’s constitutional challenge.

[11] This court is not the appropriate forum in which to join that battle. I say that for two reasons. First, as indicated above, within the criminal justice system, the trial court is the acknowledged forum in which to test and assess competing evidentiary claims. Addressing those issues in the appellate court without the benefit of the trial court’s assessment is not the ideal recipe for sound decision-making.

[12] The second reason I would decline to hear the constitutional argument is a more practical one grounded in the probable chronology of this appeal. The appellant received a three and a half year sentence in April 2007. His mandatory release date occurs when he has served two-thirds of his sentence. The appellant will have served two-thirds of his sentence (twenty-eight months) in August of this year. Were the court to allow the appellant to raise this constitutional issue, the preparation of the Crown’s responding material, the probable reply material from the appellant, and probable cross-examination by both parties would take the preparation of this appeal well beyond August of this year. My experience suggests that this appeal would not be ready for oral argument until well into the fall of 2009. If the appeal were to follow what I think is its probable course if the court allowed the constitutional issue to proceed, the appellant will be released well before the appeal is heard. By then, the constitutional question will be of only intellectual interest to him.

[13] The constitutional issue raised by the appellant is an important one. It is, however, an issue that will arise in the normal course. Anyone convicted under the provision can raise the constitutional argument at trial and, if unsuccessful, carry the issue to the court of appeal where the merits can be decided on a full trial record. There is no reason to think that this issue will allude appellate scrutiny if it is not considered in this case.

[14] I would direct that the appellant cannot raise the constitutionality of the mandatory minimum punishment in s. 212(1)(2.1) on his sentence appeal. His conviction appeal and the remainder of his sentence appeal should proceed as scheduled on May 4th.

RELEASED: “DD” “FEB 19 2009”

“Doherty J.A.”

“I agree E.A. Cronk J.A.”

“I agree Robert P. Armstrong J.A.”

[^1]: In the appellant’s factum on the merits, counsel has referred to the House of Commons Debates and the Debates of the Senate Standing Committee on Legal Constitutional Affairs.