Court File and Parties

Court File No.: 11/11374

Dated: May 16, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Joel Dennis Bondy

Before: Justice Gregory A. Campbell

Counsel:

• L. Defoe, for the Crown
• K. Munroe, for the Accused

CAMPBELL J.:

RULING

1: BACKGROUND

[1] The accused has brought an application to declare the summary conviction provisions of s. 151 and s. 152, contrary to s. 11(f) of the Canadian Charter of Rights and Freedoms and therefore of no force or effect pursuant to s. 52(1) of the Charter.

[2] The application was served on the Attorney General for Ontario and Canada on October 26, 2012. The provincial Attorney General was represented by the local Crown Attorney. I was informed that no response was received from the federal government and as a result no one appeared on its behalf.

[3] Concurrent with the delivery of the Notice of Application, Mr. Bondy filed a re-election pursuant to s. 561(2) and (4) to be tried by a court composed of judge and jury in the Superior Court of Justice.

2: ALLEGATIONS AT ISSUE

[4] Notwithstanding submissions from defence counsel that a factual background was unnecessary for the purposes of this application, I indicated that I required some evidence to rely upon in support of the proceeding. For the purpose of the constitutional challenge both parties agreed that notwithstanding pleas having been entered of not guilty, the crown could adduce evidence to support its case which was read into the record, on consent.

[5] Mr. Bondy was a helper and eventually became a coach at a local gymnastics club. At a time when he was 20 years of age and for a period of approximately four months, Mr. Bondy developed a relationship with C.S., a 15 year old girl, who had been volunteering her time at the same gymnastics club. It is alleged the accused developed a close relationship with this complainant and attended her high school where the two of them would get together during lunch period and kiss. The accused is also alleged to have sent the 15 year old a text message requesting sex. In addition, a second and similar boyfriend/girlfriend type of relationship developed subsequently with a separate 15 year old complainant at the gymnastics club at a time when the accused was 21. It is alleged that the accused likewise attended the complainant's high school from time to time over the period of one month and during her lunch hour they would kiss and he would touch her breasts. The Crown would lead evidence to indicate the accused unzipped his pants, pulled out his penis and asked the accused to perform oral sex and that on one occasion; the accused brought the 15 year old complainant to his residence and to his bedroom where he asked her to perform oral sex on him.

[6] The foregoing facts support the allegation of sexual interference in count three, contrary to s. 151 (b) of the Criminal Code of Canada and the two allegations of invitation to sexual touching, contrary to s. 152 (b) of the Criminal Code of Canada. The crown elected to proceed summarily. At the time, when the offences are alleged to have been committed, the Criminal Code provided for a mandatory minimum sentence upon conviction of 14 days in jail. These same minimum mandatory sentences were recently increased pursuant to Bill C-10, effective August 9, 2012, to 90 days respectively.

3: POSITION OF THE APPLICANT

[7] The applicant submits that because the charges of sexual interference and invitation to sexual touching under sections 151 (b) and 152 (b) each invoke mandatory minimum jail sentences of 14 days on summary conviction, the accused is guaranteed the right to be tried by a jury because they are serious offences with severe punishments attached to them and as such, fall within the framework of s. 11(f) of the Charter.

4: RELEVANT STATUTORY PROVISIONS

[8] Rather than set out the text of s. 151 (b), 152 (b) and 561(2) and (4) of the Criminal Code of Canada, and s. 11(f) and 52(1) of the Canadian Charter of Rights and Freedoms, the sections have been reproduced as Schedule 1 to these reasons as relevant legislative provisions under consideration in this decision.

5: ISSUE

[9] The broad issue to be determined is whether the mandatory minimum sentence of 14 days upon conviction following a summary offence prosecution before a Provincial Court Judge violates Mr. Bondy's right to be tried by a judge and jury. Section 11 (f) guarantees an individual to the benefit of a jury trial "where the maximum punishment for the offence is imprisonment for five years or a more severe punishment." The two sections at issue do not have a maximum of punishment of imprisonment for five years. I must therefore determine whether the minimum mandatory jail sentence of 14 days represents "a more severe punishment" within the meaning of s. 11 (f).

6: ANALYSIS

[10] It was submitted by the applicant that a mandatory minimum jail sentence is "a more severe punishment" within the meaning of s. 11(f) of the Charter because jail is the only sanction available to the court. The applicant contrasts this against a variety of options available to the court for sentences where the maximum punishment for the offence is imprisonment for five years, but there is no minimum mandatory jail sentence. Offences that have a maximum prison term of five years include:

• neglect or improper interference with dead body, s. 182
• destroy travel document, s. 279.03
• abduction of person under 16 years, s. 280
• libel, s. 300
• take drift timber, s. 339(1)
• possession of stolen minerals, s. 394.1
• secret commissions, s. 426
• arson by negligence, s. 436

[11] What's noteworthy is that a person charged with any of the foregoing offences has the right to be tried by a judge and jury and the judge has discretion on sentencing. The sentencing judge, following conviction, would have to give appropriate consideration to the various purposes and principles of sentencing, including the objectives set forth in s. 718 of the Code, and considerations as to proportionality having regard to the gravity of the offence and the degree of responsibility provided for in s. 718.1 of the Code together with any necessary consideration arising from aggravating or mitigating factors. The sentencing judge would have options ranging from a discharge, suspended sentence, fine and jail.

[12] The applicant argued that historically a conviction for offences that resulted in a maximum punishment of imprisonment for five years rarely, if ever, resulted in a jail sentence. As such, a person convicted of such an offence would have available all the usual considerations as to sentencing from discharge to incarceration that would be determined based on the various purposes and principles and objectives of sentencing. By contrast, ss. 151 and 152 provide the prosecution and thereby the state with unfettered discretion not only in regard to whether to prosecute or how to prosecute but in essence the state determines the result of the sentence, following conviction.

[13] I was informed by counsel that at the time when amendments to the draft of what has become s. 11 of the Charter was being considered by a Special Joint Committee of the Senate and House of Commons on the Constitution of Canada in 1980-1981, there were five offences that included minimum mandatory sentences. All of them were for second offences and were predicated on a prior conviction for the same crime. Three were driving offences; namely, impaired, exceed and refuse. The other two were gambling offences; namely, betting, bookmaking and placing bets for others. It was argued by the applicant that these sections did not trigger the right to a trial by jury because the minimum jail provision did not automatically apply on conviction. Rather, the minimum mandatory sentences were an enhancement as part of a sentence that would not only follow a conviction but also after proof of a related prior conviction.

[14] The foregoing requires some historical analysis and reflection in the context of constitutional interpretation.

7: HISTORICAL ANALYSIS

[15] The right to a trial by jury was enacted pursuant to historical common law principles that can be traced back to the Magna Carta. The right to due process, which included the recognition that no one would be imprisoned or condemned unless by lawful judgment of his peers, was found within arguably the greatest constitutional document of all time as it recognized the need to protect the freedom of the individual against the arbitrary authority of the state.

[16] The right to a jury trial has existed for both civil and criminal law in common law jurisdictions, including Canada and the United States, for centuries. Its importance in civil law has from time to time been the subject of debate. By contrast, its importance in criminal law has always remained constant, especially where accused persons have been charged with serious criminal offences. The significance of its use and purpose was recognized during sessions of the Special Joint Committee of the Senate and House of Commons assembled in 1980 and 1981 to consider a Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada, dated October 2, 1980. On November 13, 1980 Member of Parliament Robinson raised a concern about the draft document with the Minister of Justice and Attorney General of Canada. The member raised what he described as a very serious omission in the area of legal rights indicating that the draft failed to afford Canadians the right to be tried by a jury of their peers if charged with a serious offence.

[17] After first pointing out that the United Nation's Covenant on Civil and Political Rights did not mention a right to trial by jury, the Minister of Justice and Attorney General of Canada acknowledged the right to a jury trial was well established in Canadian law and concluded that if the committee wanted to include such a provision then appropriate language would have to be considered.

[18] One month later, on December 11, 1980, the committee met again to discuss the right to trial by jury and heard that day from Professor Sussman. It was his opinion that the general language of the Charter would, in a historical sense, conclude the right to a trial by jury was protected and that same would be safeguarded by the courts arising from the general character and spirit of the document which he anticipated would be interpreted with flexibility over the course of time. On January 12, 1981 a new subparagraph (f) was included under s. 11 of the draft proposal. It provided for the first time a constitutional right to trial by jury.

[19] Minutes of the proceedings of the special joint committee of the Senate and the House that day reveal that it was the strong representation by Minister Robinson to guarantee a right to a trial by jury in serious criminal matters which led to the proposed amendment to the draft which now included the following subparagraph:

"Except in the case of an offence under military law tried before a military tribunal, anyone charged with an offence has the right to the benefit of trial by jury where the maximum punishment for the offence of which the person has been charged is imprisonment for five years or a more severe punishment."

A careful reading of the first draft will reveal that the language never really changed but for the fact the preamble to the section as it now reads, "anyone charged with an offence has the right" was included within the draft text I suppose for context.

[20] The discussions that followed the introduction of this provision during these special joint committee meetings was relied on heavily by the applicant in support of his argument that a jury trial should be available to an accused person if there is a very real and imminent prospect of incarceration following conviction.

[21] After the draft amendment was introduced by the Minister of Justice and Attorney General of Canada on January 12, 1981, the committee met again on the 28th instant. Minister Robinson moved this time for a sub-amendment to strike out the words "five years" and substitute "two years" thereby entitling a person charged with an offence to the benefit of a jury trial where the maximum punishment for the offence is imprisonment "for two years or a more severe punishment."

[22] The Honourable Eugene Ewaschuk, General Counsel for Criminal and Constitutional Law, attended the meeting of the Special Joint Committee of the Senate and House and was asked about the proposed sub-amendment from five years to two years. The governments General Counsel had the following to say:

"If you start viewing the indictable offences in the Criminal Code as a Jacob's Ladder and go from the top of the ladder, then you have life imprisonment, then 14 years, ten years, five years – and the most minimal type of indictable trial is the two year trial.

So, obviously, having practised in the courts, you know people do not go to jail automatically for two years for a two year offence. Breaking and entering a dwelling house is a life offence, and most young offenders almost invariably get probation for that.

It is the rare case where you go to jail for this type of minimal offence.

In section 483 of the Criminal Code we have a bunch of offences, some of which are theft, possession, false pretences, fraud under $200, where the crown goes by indictment and there is no jury trial and the top end is two years.

There are other offences – and I have a list here; keeping a common gaming house, betting house, various types of bookmaking, lotteries, games of chance, betting for a consideration, driving while suspended where the crown goes by indictment, fraud in relation to fares – those offences, then, traditionally there has been no right of jury trial and the right to jury trial would be allowed for all those two year offences.

Our concern was not to overly inconvenience the courts. Jury trials are much slower, and civilians have to be brought in and they have to sit, and panels have to be selected.

A decision was made that it was reasonable for five years, that, given the fact that people, as we have said, do not go to jail that often for two year offences, that there you have more discharges than fines, that it really was not required in that type of case."

[23] Based at least in part from the foregoing, the applicant has argued that the offences at issue which carry mandatory minimum jail sentences fall within the meaning of "a more severe punishment" under s. 11(f) of the Charter because jail is the only sentence available and the sentencing court is precluded from giving consideration to Part XXIII of the Code which addresses the various purposes and principles of sentencing and it invites the court to consider the nature of the offence, the circumstances surrounding its commission and the offender among other factors.

[24] Essentially, the applicant argued that if appropriate consideration is given to interpreting the Charter in accordance with the principles discussed by the Supreme Court of Canada in Hunter v. Southam Inc. (1984), 14 C.C.C.(3d) 97 (S.C.C.) p. 104, for example, that the Constitution must be reviewed and considered as being "...capable of growth and development over time to meet new social, political and historical realities often unimaginable by its framers.", then I ought to come to the conclusion that Mr. Bondy is indeed facing a serious offence and ought to have the benefit of a jury trial. Professor Sussman, it was argued, was mindful of this general approach to interpreting the Constitution when he addressed the Committee in December of 1980 and indicated there was room in the interpretation of the general language of the Charter to conclude the right of a jury as historically protected, even though it was not at that point specifically mentioned in the draft document.

[25] The question arising from all of this of course is whether the imposition of the mandatory minimum jail sentence of 14 days following conviction equates to "a more severe punishment" as contemplated within the meaning of s. 11(f).

[26] As I indicated previously, mandatory minimum sentences have not become novel since patriation of the Constitution in 1982. Notwithstanding counsel's submission that they were essentially part of the sentencing process, they nevertheless existed in regard to impaired driving, exceeding a breathalyzer and refusing to provide a sample of breath no doubt because they were important public policy considerations associated with an ongoing concern for the carnage on our highways. Drinking and driving have remained a societal concern which Parliament continues to address with amendments and new legislation including, but not being limited to, increasing mandatory minimum sentences. In the same way, Parliament has demonstrated an increasing concern about the lack of consistency in sentencing.

[27] Most recently, for example, during the debates of the Senate in regard to parts of Bill C-10, now the law of the land, there were proposed amendments to the Criminal Code addressing child sexual offences and conditional sentences of imprisonment among other things. Representatives of the government addressed the issue of mandatory sentencing as being not a novel approach but one that has been historically exercised in Canada for a great many years all with the view toward achieving consistency in sentencing in regard to matters of particular concern, which have included in recent years addressing child sexual offences, the same of which is at issue here in this proceeding.

[28] Much emphasis has been placed by the applicant on the words "or a more severe punishment" essentially the phrase as being synonymous with the loss of liberty by incarceration. That is to say, if in fact upon conviction you will go to jail, regardless of the duration of time, a jury trial is in order as it is necessary to safeguard citizens from the tyranny of government.

[29] I cannot say, from reviewing all the materials and carefully considering the submissions, that there isn't a certain attraction to the applicant's argument. After all, the jury serves to protect the freedom of people from arbitrary conduct of the state and despotism. However, notwithstanding the Charter and in particular s. 11(f) being part of a constitutional document, I cannot help but think from having reviewed the minutes of proceedings and evidence of the special joint committee of the Senate and House of Commons referred to above that the words "maximum punishment for the offence is imprisonment for five years or a more severe punishment" must be also be considered in their grammatical and ordinary sense.

[30] To my mind, the coordinating conjunction "or" in front of the words a more severe punishment suggests to me an effort was made at refinement of the first clause "maximum punishment for the offence is imprisonment for five years" and not intended as an alternative.

[31] In R. v. Lee, [1989] 2 S.C.R. 1384, the appellant was charged with an offence carrying a maximum punishment of life imprisonment. He elected trial by judge and jury. Counsel was removed from record before the case was called to trial and had lost contact with the accused. No one appeared on set dates for the selection of the jury and commencement of the trial. The appellant was later arrested and with the benefit of new counsel addressed whether his client was still entitled to a jury trial. The court considered the constitutionality of s. 526.1 of the Criminal Code of Canada against s. 11(f) of the Canadian Charter of Rights and Freedoms. Section 526.1 provided that where an accused elected to be tried by judge and jury but failed to appear for his trial and had not re-elected, he would not be tried by a court composed of judge and jury in the absence of satisfying the court with a legitimate excuse for his failure to appear. The trial judge refused to accept the appellant's excuse, ruling that he was no longer entitled to a jury trial.

[32] Justice Wilson's dissenting reasons were accepted by the majority in her analysis of s. 11(f) of the Charter. At paragraph 31 of that decision, the court stated:

"In my opinion, the language of s. 11 (f) is clear and unambiguous. The only qualifications on the right to the benefit of a jury trial under this section are that the maximum punishment for the offence be five years imprisonment or a more severe punishment and that it not be available in the case of an offence under military law tried before a military tribunal. The maximum punishment for the offence charged against the appellant is life imprisonment. He is accordingly one of the individuals intended to be protected by the s. 11 (f) guarantee."

[33] Sections 151 (b) and 152 (b) of the Criminal Code of Canada both provide that a person found guilty of the offence punishable on summary conviction is liable to imprisonment for a term "not exceeding 18 months." Notwithstanding the court in R. v. Lee, supra, indicating that s. 11(f) of the Charter is designed to protect the interests of those charged with criminal offences, and the restriction on access to the jury trial was only in limited circumstances, the court nevertheless made it clear there were certain qualifications on the right to the benefit of a jury trial and, although limited, they were clearly recognizable and "unambiguous." To this end the accused was entitled to that benefit because he was liable to life imprisonment or a period of time greater than five years. Here, subsections 151 and 152 provide for maximum sentences not exceeding 18 months.

[34] The applicant argued further that it is noteworthy the language used in s. 11(f) did not read "five years or more."

[35] In Re Janes, [1985] O.J. No. 594, Justice Hollingsworth considered a request for an order directing the provincial court judge in the Judicial District of York to proceed with preliminary inquiries on charges that the accused drove his motor vehicle while his ability was impaired by alcohol and failed or refused to comply with a breath demand. The accused took exception with the fact the crown could elect to proceed by summary conviction or by way of indictment and in either case the same penalty would be imposed on conviction. The crown elected to proceed summarily but the accused argued, among other things, that his right to the benefit of a trial by jury had been infringed contrary to s. 11(f) of the Charter. In considering the argument, Justice Hollingsworth stated the following:

"It will be noted, however, that the Charter takes care of the jury issue and that under the Charter, no person has a right to a jury unless the penalty of conviction is for five years or more."

[36] I appreciate counsels submission in light of Hunter (supra) that the Constitution should been seen as a purposeful document with a view toward the future that is capable of growth and development over time to meet new social, political and historical realities and to that end, I am invited to conclude the drafters used the words "or more severe punishment" with this specific intention in mind for future growth and development. In the circumstances of this case it appears to me that the words "or more severe punishment" was an effort to clarify or as I indicated earlier refine the first clause to make a jury trial available for, to quote the members of the house "serious offences" or "serious criminal matters."

[37] It is interesting to note, that since that time, amendments to the Code in respect to organized crime and law enforcement which arose originally in the form of Bill C-24 has included a definition of "serious offence" which is incorporated by reference under the definitions section, being s. 2 of the Act. Section 2 defines "serious offence" as having the same meaning as in ss. 467.1(1) of the Code which deals with criminal organizations and defines "serious offence" as an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation. The language used is consistent with the interpretation given to s. 11(f) by Justice Hollingsworth in Janes (Re) in 1985 and no different from the interpretation given by the Supreme Court of Canada in R. v. Lee, supra. Again, it was "serious offences" and "serious criminal matters" that the drafters were focusing on when they introduced s. 11 (f) to the draft document which found its way into the Charter without any further changes.

[38] In and as part of the thrust of the applicant's argument for interpreting the words "or more severe punishment" in a broad sense to include mandatory minimum jail sentences, is his reference to the increasing trend or use of mandatory minimum sentences. To this end, the applicant argued there has been an erosion of or departure from the general principles on sentencing. These sections of the Code that are under consideration in this application were first introduced with minimum mandatory sentences in 2005 and provided for 14 days jail for summary conviction and 45 days jail if the crown elected to proceed by indictment. In August 2012, those minimum mandatory sentences were increased to 90 days for summary elected offences and one year if by indictment.

[39] There can be no doubt that mandatory minimum sentences have been part of the Canadian justice system for some time and their use has been increasing. Senate debates in 2011, in regard to the Safe Streets and Communities Bill, pointed out that one of the reasons for mandatory minimum sentences was because of a lack of consistency in sentencing. In particular, reference was made to the decision of R v. Arcand, a decision of the Alberta Court of Appeal which addressed the lack of consistency in sentencing and the need for the courts to develop a more uniformed approach on sentencing. It seems to me what Parliament has done with mandatory minimum sentences is turned their mind to at least some of the purposes and principles of sentencing. These include not only denunciation and deterrence but also consideration for aggravating circumstances that include circumstances not dissimilar from the charges at issue here. In particular, s. 718.2 of the Code identifies circumstances that are deemed to be aggravating by statute and includes evidence that an offender abused a person under the age of 18 years.

[40] Counsel pointed to distinguishing features associated with mandatory minimum sentences existing at or around the time when the Constitution was repatriated and argued none of those sections triggered a right to a trial by jury because the minimum jail provisions did not automatically apply on conviction but rather were the consequence of the sentencing process. That is, they applied only after conviction and after proof of an additional fact, namely, a related prior conviction. He buttressed this argument by referencing the Supreme Court of Canada decision in Lyons v. The Queen (1987), 37 C.C.C.(3d) 1, holding that an offender was not entitled to a jury trial on a dangerous offender application because the proceeding arose only after conviction and was part of the sentencing process.

[41] While I do not quarrel with any of these distinctions, to my mind they serve little importance other than to indicate firstly, there were fewer mandatory minimum sentences 30 years ago and secondly, there is reason why they would not invoke entitlement to a jury trial. But they do little to help me gain a better understanding about what the drafters intended by the qualification of the right to the benefit of a jury trial where the maximum punishment for the offence is five years imprisonment or a more severe punishment. To my mind, the words "or a more severe punishment" arose from the discussion about serious criminal matters and serious offences. These were intended to be offences that would place an individual at greater risk of imprisonment for a considerable period of time.

[42] Support for this is found in Mr. Ewaschuk's analysis where he reviewed and explained "indictable offences" in the Criminal Code as a Jacob's Ladder moving from life imprisonment, then 14 years, ten years, five years – and the most minimal type of "indictable trial" is the two year trial. Moreover, notwithstanding the Department of Justice's General Counsel for Criminal and Constitutional Law's representation that the likelihood of going to jail automatically for offences having a maximum two years sentence was unlikely, he did not indicate, based on his experience, that it did not occur. He simply indicated it was rare and it did not happen often. So, the discussion was in regard to having jury trials for indictable offences where the maximum punishment upon conviction was for a period of less than five years and the unlikelihood of imprisonment. There was no discussion about summary prosecution, which then and now included imprisonment for a term not exceeding six months being a period considerably longer than the 14 days at issue in sections 151 and 152.

8: CONCLUSION

[43] From all the foregoing, it is apparent to me the drafters were concerned that individuals who were facing the potential for severe punishment following conviction for indictable offences where the prospect of jail could be for a term of imprisonment for a period of five years or greater would have the benefit to be tried by a judge and jury if they so desired.

[44] For all the foregoing reasons, the application is dismissed.

Released Orally: May 16, 2013