Court File and Parties

Court File No.: Central East - Newmarket 15-02928, 13-02634

Date: 2017-02-06

Ontario Court of Justice

Between:

Her Majesty the Queen Respondent

— And —

Diana Veljanovski Applicant

Before: Justice P.N. Bourque

Counsel:

• D. Moull, for the Crown
• A. Maini/D. Derstine, for the defendant

Constitutional Challenge Ruling

Released on February 6, 2017

Overview

[1] The defendant was found guilty by me of defrauding the Ontario government social assistance plan of some $18,636.00 over a period of some three years (March 26, 2009 to April 10, 2011).

[2] The defendant has also pled guilty to the further offence of defrauding Suzana Markowski (Visa card) in the amount of $7,944.75. The defendant committed this offence while awaiting trial on the offence of defrauding the social assistance plan.

[3] The amendments to the Criminal Code in 2012 (Bill C-10, Safe Streets and Communities Act), made the imposition of a Conditional Sentence of Imprisonment unavailable for persons found guilty of any offences with a maximum term of imprisonment of 14 years or life. When proceeding by indictment, the maximum term of imprisonment for fraud over $5,000 (section 380(1)(a)) is 14 years and thus this sentencing option is unavailable for this offence and this offender.

[4] The defendant argues that pursuant to sections 12 and 7 of the Canadian Charter of Rights and Freedoms, the ending of the sentencing option in these circumstances or in the circumstances as set out in a "reasonable hypothetical", should lead me to find that the taking away of such a sentencing constitutes "cruel and unusual punishment", and ultimately a breach of these Charter rights.

[5] Section 12 of the Charter states:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[6] Section 7 of the Charter states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[7] I point out at the beginning of this analysis, that this case does not involve a "mandatory minimum". There is no minimum period of incarceration, and the sentencing options of a fine or a suspended sentence for this offence is still available. I point this out because while the general principles as set out in R. v. Nur, 2015 SCC 15, in setting out the test for infringement of a section 12 breach are applicable, that case was a mandatory minimum case and the language of "mandatory minimums" is spread throughout.

[8] I also point out that the provisions which can be inserted into a probation order are very extensive and wide and can include virtual house arrest scenarios which bear a striking resemblance to a conditional sentence of imprisonment. I agree, however, that it does not have the same degree of denunciation and deterrence, and enforcement mechanisms are less.

Does The Removal of the Conditional Sentence Option Offend Section 12 of the Charter for this Offence?

[9] The Court must first determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code, and then must ask whether the lack of a conditional sentence requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. In the first case the issue is whether the sentence is whether the provision results in a "grossly disproportionate" sentence on the individual before the court. If the answer is no, the second question is whether the provision's reasonable foreseeable applications (the hypotheticals) will impose grossly disproportionate sentences on others.

[10] Part of the analysis involves an interpretation of the purpose of the conditional sentencing regime. In three decisions by Superior Courts (R. v. Perry, 2013 QCCA 212; R. v. Neary, 2016 SKQB 218; R. v. Anderson, 2016 ONSC 7501), after reviewing the legislative record, all the cases come to similar conclusions that It is clear that Parliament's intent was to emphasize the objectives of denunciation and deterrence for serious crimes. The defendant, in her submissions, emphasizes the purpose of "public safety and security". The legislative record however shows that serious crimes were meant to include property crimes and not just violent offences. ("this Government is addressing the concerns of Canadians who no longer want to see conditional sentence used for serious crimes, whether they are violent crimes or property crimes" House of Commons Debates, 41st Parl., 1st Sess, No 17 (21 September 2011) at p 1750-1755).

[11] In our case, this is perhaps illustrated as the defendant committed the second Fraud while awaiting trial on the first offence.

[12] Is this sentence disproportionate or excessive? In R. v. Smith, [1987] 1 SCR 1045, the court held that in order to meet the gross disproportionality standard, the impugned penalty must be so harsh or excessive that it "outrages standards of decency". It must be more than "merely excessive".

[13] The next step is to consider whether the lack of the conditional sentence option constitutes cruel and unusual punishment for the specific offender being sentenced. I consider the gravity of the offence generally, the personal characteristics of the offender and the circumstances of the offence, the actual effect of the punishment on the offender and the penological goals and sentencing principles underlying the sentence.

[14] The defence concentrates on the specific mental health issues of this offender. Filed is a letter from Dr. R. Karkar dated Sept 15, 2015. It is very short and contains little background information or analysis. He describes her depressive mood and anxiety, poor sleep and poor appetite, arising largely from issues around this sentencing. It relates that she has attempted suicide some 2 years before the report. It diagnoses Major Depressive disorder, obsession compulsive disorder and current GAS 35. The treatment consisted of medication. It opines at the end that "with her illness jail is not the best situation". It does not describe any exacerbations of symptoms as a result of incarceration.

[15] Dr. Danlo-de-Jesus in a two-sentence report, indicates a diagnosis of bipolar disorder type II. It gives no details or prognosis. It gives no opinion as to the effects of incarceration upon her mental health.

[16] Ultimately, I do not think I can come to any reliable conclusions as to the effect of incarceration on this person. I am, of course aware, that she wishes to avoid being sent to jail. I accept that her psychiatrist does not recommend it. As I have already said, it gives no information as to any specific negative effects it would have upon her. The document from the John Howard Society entitled "Unlocking Change: Decriminalizing Mental Health Issues in Ontario", (Tab 6 of Exhibit #1) is a general paper dealing with all aspects of Mental Health and the criminal justice system, including criminalizing mental health issues and impact of incarceration on mental health. I note at the outset it has a wide definition of mental health. Under the heading of "Impact of Incarceration on Mental Health", it talks about the lack of suitable treatment facilities, and segregation. While I accept all of that information, I do not have any specific information to relate these general issues to this (or any of the hypothetical) individual(s). Other than medication and counselling, I do not know if there is any extensive therapy required for this individual. Likewise, I am not aware as to whether any of the conditions described would lead to segregation.

[17] I certainly cannot find that there is any less criminal responsibility for this offender.

[18] In any event, if the mental illness could be described as severe and perhaps severe repercussions from incarceration could be contemplated, then either a very short period of incarceration could be crafted along with a period of probation.

[19] With regard to the hypotheticals ((a), the aboriginal offender, (b) the youthful first offender, (c) a physically disabled offender) they all suffer from the same issue, that is some short or no custody with a period of probation may be appropriate (the hypotheticals are set out in Appendix "A").

[20] In this case, I do not think that the lack of a conditional sentence of imprisonment would be so excessive as to outrage the standards of decency or be grossly disproportionate to what would have been appropriate. The fact that a custodial sentence may be entirely appropriate does not become grossly disproportionate because I am precluded from allowing it to be served in the community.

[21] With regard to the hypotheticals, as I have already said, a period of probation with or without a very minimalist period of incarceration would not be grossly disproportionate in those situations.

Does this Provision Offend Section 7 of the Charter?

[22] The Crown argues that the determination under Section 12 is determinative of the issues in the matter and a separate section 7 analysis is not necessary. As stated in R. v. Perry, 2013 QCCA 212, at par 143 "…within the specific areas contemplated in section 8 to 12, section 7 cannot be used as a way of broadening the meaning of the protected rights. Thus the right to protection against cruel and unusual treatment or sentences set out in section 12 cannot for its part receive a broader interpretation under section 7 that it would under section 12…"

[23] The defence argues that section 7 is important because it stresses the need for a provision not to be "overbroad" or "arbitrary". He argues that simply creating a class of offences which the conditional sentencing regime is unavailable, merely using the maximum sentence, is overbroad and to a certain extent arbitrary. He cites for authority the case of R. v. Safarzadeh-Markhali, 2016 SCC 14.

[24] As an initial matter that was a case dealing with the enhanced credit provisions in the Truth in Sentencing Act and was at least partially decided upon the fact that a sentencing judge would be bound by a decision of a Justice of the Peace, which in itself was not subject to an appeal. In any event, I do not feel that this impugned provision is "overbroad". It uses a yardstick of severity the maximum sentence which is appropriate. A maximum sentence is something that Parliament sees fit to impose and is clearly a statement of how serious Parliament views the impugned conduct. I also disagree that it is unrelated to its purpose. If one accepts that a fraud over $5,000 is a serious offence and in circumstances can deprive a victim of economic security, then it fits within the language of its purpose as pronounced during its introduction in parliament.

[25] I therefore do not find that it offends section 7 of the Charter.

[26] I therefore dismiss the application and will give force and effect to the sentencing regime as it has been promulgated by Parliament and by directions of the appellate courts.

Signed: "Justice P.N. Bourque"

Released: February 6, 2017

Appendix "A"

(a) An Aboriginal Offender

The offender is aboriginal. His grandparents attended residential school and he battles alcoholism and addiction issues. One night while he was under the influence of alcohol and drugs, the offender sets fire to his neighbour's shed, contrary to section 434 of the Code. No defences apply. The offender is extremely remorseful. He pleads guilty to the offence and has already begun building his neighbour a new shed (the offender is a carpenter by trade). However, because the offence carries a maximum term of imprisonment of fourteen years, the offender is ineligible for a conditional sentence. Absent s. 742.1(c), the fit and appropriate sentence for this offence and this offender is a conditional sentence. This is particularly so given that section 718.2(e) of the Code specifically mandates that sentencing judges consider all available sanctions other than imprisonment especially in the case of aboriginal offenders.

(b) A Youthful First Offender

The offender is a youthful first offender. She has never been charged with an offence, let alone been to jail. She arranges to meet someone selling a cell phone over the Internet. When she meets the person, she threatens the person with physical harm and snatches the phone. She flees without paying. She is eventually located and charged with robbery contrary to section 344(1)(b) of the Code and convicted after trial. The offence carries a maximum of life. Despite the fact that the principal of restraint applies to her by virtue of her age and her status as a first offender, she remains ineligible for a conditional sentence.

(c) A Physically Disabled Offender

And finally, the offender is physically disabled. He finds himself in a desperate financial situation and cashes a fraudulent cheque. He is charged with fraud over five thousand dollars contrary to section 380(1) of the Code and pleads guilty. The offence carried a maximum sentence of fourteen years. His physical disability makes it difficult for him to remain in small enclosures for prolonged periods of time. His disability requires that he take frequent walks. The failure to do so results in physical pain. Despite this, he is unable to receive a conditional sentence and is forced to serve his sentence in custody.