Ontario Court of Justice

Date: 2017-09-29

Court File No.: Brampton 3111 998 15 9385

Between:

Her Majesty the Queen

— AND —

Patrick Williams

Before: Justice G.P. Renwick

Heard on: 15, 16 August 2017

Reasons for Judgment released on: 29 September 2017

Counsel:

S. Thompson — counsel for the Crown

D.C. Santoro — counsel for the defendant, Patrick Williams

Application for Judicial Exception

RENWICK J.:

1. INTRODUCTION

[1] Patrick Williams has pleaded guilty to importing 14 kilograms of hashish, a Schedule II substance, contrary to section 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"). Pursuant to s. 6(3)(a) of the CDSA, this is an indictable offence, which carries a maximum sentence of life imprisonment.

[2] At the start of his sentencing hearing, the Applicant sought relief from the operation of two sentencing provisions which preclude him from possibly receiving a conditional sentence of imprisonment: s. 6(3)(a) of the CDSA and the conditional sentence delimitations within s. 742.1(c) of the Criminal Code, R.S.C. 1985, c. C-46 ("Code").

[3] The Applicant challenges these two provisions on the basis that they are arbitrary and overbroad, and therefore contrary to s. 7 of the Charter. Further, and in the alternative, it is alleged that the life maximum sentence for this importation offence is arbitrary, overbroad, and grossly disproportionate, and consequently in violation of both sections 7 and 12 of the Charter, respectively.

[4] The Respondent submits that the prohibitions against the imposition of a conditional sentence do not attract constitutional scrutiny because although a sentencing option has been removed from consideration, an appropriate and fit sentence can still be imposed. The effect of these legislative provisions, argues the prosecutor, is neither arbitrary nor overbroad because each is tied to the purpose of deterring people from importing controlled substances and protecting the health and safety of Canadians. Lastly, it is contended that the possibility of life imprisonment for importing a Schedule II substance does not meet the high threshold for gross disproportionality under s. 12 of the Charter to warrant a remedy.

[5] My analysis will consider each of the impugned legislative provisions, how ss. 7 and 12 of the Charter are engaged, and if these sentencing laws are unconstitutional. Of necessity there will be some overlap in the discussion because I will consider s. 6(3)(a) of the CDSA and s. 742.1(c) of the Code separately, as well as their operation together.

2. ISSUES

[6] There are a number of issues and sub-issues to be considered in the disposition of this Application. They are:

A. Does s. 6(3)(a) of the CDSA contravene the Charter;

i. Is s. 6(3)(a) arbitrary;

ii. Is s. 6(3)(a) overbroad;

iii. Is s. 6(3)(a) grossly disproportionate; and

iv. If s. 6(3)(a) violates the Charter, is it saved by s. 1;

B. Does s. 742.1(c) of the Code contravene the Charter;

i. Is s. 742.1(c) arbitrary;

ii. Is s. 742.1(c) overbroad; and

iii. If s. 742.1(c) violates the Charter, is it saved by s. 1; and

C. Does the combined operation of s. 6(3)(a) of the CDSA and s. 742.1(c) of the Code contravene the Charter:

i. Is the combined effect of these provisions arbitrary, overbroad, or grossly disproportionate; and

ii. If the combined effect of these provisions violates the Charter, are these sentencing provisions saved by s. 1.

For the reasons that follow, I conclude that the possibility of a maximum life imprisonment sentence in s. 6(3)(a) of the CDSA is overbroad, contrary to s. 7 of the Charter, and this provision cannot be saved by s. 1. With respect to the Applicant's secondary position, I do not find that the law is discordant with s. 12 of the Charter, and this alternative argument is dismissed. As well, I do not find that s. 742.1(c) of the Code, in isolation, violates s. 7 of the Charter, however, I conclude that the combined operation of s. 6(3)(a) of the CDSA and s. 742.1(c) impermissibly infringes s. 7 of the Charter in a manner that is not demonstrably justified in a free and democratic society.

3. DISCUSSION

Preliminary Matters

[7] To state the obvious, s. 7 of the Charter is engaged in this case because Mr. Williams faces a sentence of life imprisonment for the importation of a schedule II substance. To be clear, there is no suggestion that the prosecutor is seeking a life sentence for Mr. Williams. In fact, the prosecutor has indicated its intention to seek a penitentiary sentence of imprisonment. In response, the Applicant would like to argue that his crime merits a conditional sentence. In light of his guilty plea and the admitted facts, the Applicant's liberty interests are clearly at stake.

[8] It was clear throughout this hearing that the Applicant attempts to draw a distinction between Schedule I drugs and Schedule II substances. Implicit in the Applicant's argument is that the legislated equivalence of cannabis with opium, heroin, and cocaine reflected by s. 6(3)(a) of the CDSA is arbitrary. Mr. Williams lead no evidence on this Application that there is a significant difference between Schedule I and Schedule II drugs and substances in terms of their psychotropic qualities, the duration of their effects, their harm to health, or their addictive qualities. However, there is much appellate authority for the proposition that cannabis is a "soft" drug and Schedule I substances are "hard" drugs and this distinction is significant in determining the moral blameworthiness which attaches to the importation of various drugs. I accept this distinction.

Generally Courts Must Defer to the Will of Parliament

[9] By way of general observation, I recognize that our constitutional democracy is predicated upon a healthy respect for the distinct roles of each of the Executive, Legislative, and Judicial branches of government by each of the other branches. Our society functions best when each branch of government operates independently of the other branches. It is a given that the Legislative branch is entrusted to enact laws to protect our society and our way of life, while upholding the supreme law, our constitution.

[10] Generally, courts must defer to the will of Parliament unless there is an apparent encroachment on protected rights, at which point courts are required to measure the content of legislation against the guarantees of the constitution. As the Supreme Court of Canada reminds us:

Members of Parliament are elected to make these sorts of decisions, and have access to a broader range of information, more points of view, and a more flexible investigative process than courts do. A "serious and substantial" standard of review would involve the courts in micromanagement of Parliament's agenda. The relevant constitutional control is not micromanagement but the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected…

As part of the judiciary I am keenly mindful of my limited role in considering legislation presumed to conform to our Charter and the deference owed to Parliament to determine the content of our laws.

Section 7 of the Charter is the Appropriate Starting Point

[11] In its written and oral submissions, the Respondent suggested that this Application is most appropriately considered under s. 12 of the Charter. The Respondent clarified in oral submissions that s. 7 provided a residual tool for the analysis, but only in response to the Applicant's allegations that the laws were arbitrary and overbroad.

[12] Respectfully, I reject the proposition that s. 12 of the Charter should be the starting point for this analysis. Firstly, the Application is substantially premised on the s. 7 argument as the preferred lens to fully expose the challenged legislation. It also seems to me that s. 7 of the Charter is a natural starting point because both of the impugned provisions are said to impinge upon the Applicant's s. 7 rights, whereas s. 12 is only alleged to be engaged by the possible life imprisonment penalty under the CDSA.

[13] As well, I accept that arbitrariness, overbreadth, and gross disproportionality are doctrinally distinct constitutional constructs. Despite recognition that there is overlap between them, arbitrariness and overbreadth considerations do not generally fall within the gross disproportionality framework. If anything, the cases suggest that gross disproportionality may be considered within the s. 7 analysis, but as a stand-alone analytical instrument, s. 12 of the Charter does not encompass those unique s. 7 concepts. For these reasons, I will begin the analysis with s. 7 of the Charter.

[14] For the most part, this Application asks whether these sentencing provisions violate s. 7 of the Charter:

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.

[15] The Supreme Court has confirmed that s. 7 of the Charter is concerned with assessing potentially bad laws. Or, put another way, this section of the Charter permits legislation to limit life, liberty and security of the person, "provided it does so in a way that is not contrary to the principles of fundamental justice."

A. (i) Section 6(3)(a) of the CDSA is Not Arbitrary

[16] Arbitrariness describes a situation where there is no connection between the object of a law and its effect. For this reason I must consider the goal of the legislative provision, its effect, and whether there is a connection between them.

[17] The objectives of the CDSA (formerly the Narcotic Control Act, R.S.C. 1986, c. N-1; "NCA") were identified as "health and public safety" by the Supreme Court in Malmo-Levine, supra, and then confirmed by the court in PHS Community Services Society.

[18] The Applicant argues that the object of s. 6(3)(a) of the CDSA, "…is to denote that the offence of importing drugs is one of the utmost seriousness." The Respondent contends that "a more accurate articulation of the purpose of the legislation would be to denote that the offence of importing drugs is serious and to recognize that it can, in some circumstances, be of the utmost seriousness." I prefer and accept the Respondent's formulation as the object of this provision.

[19] By giving this offence of importation the highest possible sanction in criminal law, Parliament has expressed its view that some drug importation can be committed in circumstances of the utmost seriousness. The maximum sentence is not mandatory, it is simply one possible sentence reserved for specific importation offences committed in the worst circumstances by the worst offender.

[20] The Applicant has argued that the possible life maximum sentence for Schedule II drug importation is arbitrary because, "[w]hile such a sentence might be faintly conceivable for a repeat offender importing vast quantities of heroin, a life sentence could not in good conscience be imposed for importing any amount of marijuana, even for the worst offender." Respectfully, I do not have to decide whether the maximum sentence would ever be appropriate for importing cannabis. I have to determine if the effects of this law are commensurate with the law's purpose, either in the Applicant's circumstance or those of the reasonable hypothetical offender.

[21] What is the effect of this provision? I accept the Respondent's submission that the effect of this law is to declare Parliament's abhorrence to some types of drug importation into Canada. I agree that drugs are pernicious, border security is important, and Parliament is entitled to treat some types of drug importation more seriously than others.

[22] Having accepted that cannabis is a "soft" drug and its importation is less morally blameworthy than the importation of Schedule I drugs, I have to consider under a purposive analysis whether there is a rational connection between Parliament's objectives and s. 6(3)(a) of the CDSA. I accept that large scale, commercial drug importers of Schedule II substances should know that in some circumstances a life sentence of imprisonment can be imposed for this level of criminality. I specifically reject the Applicant's argument that a life sentence of imprisonment could never be imposed for marihuana importation. On this basis, I conclude that this provision is not entirely arbitrary, subject to the analysis below.

A. (ii) Section 6(3)(a) of the CDSA is Overbroad

[23] In Bedford, our Supreme Court explained overbreadth at paras. 112 and 117:

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts.

Overbreadth simply allows the court to recognize that the lack of connection arises in a law that goes too far by sweeping conduct into its ambit that bears no relation to its objective. [The underlining is mine.]

[24] Again, it is important to consider the purpose of the law, its effect, and the connection between the two in order to determine whether or not the law overshoots its mark. As the unanimous Supreme Court reminds us in Moriarity:

The overbreadth analysis turns on the relationship between the objective of the law and the effects flowing from the means which the law adopts to achieve it – in other words the relationship between the law's purpose and what it actually does.

…courts should be cautious to articulate the legislative objective in a way that is firmly anchored in the legislative text, considered in its full context, and to avoid statements of purpose that effectively predetermine the outcome of the overbreadth analysis without actually engaging in it.

[25] What are the effects of s. 6(3)(a): are there aspects of its operation that are overbroad? The Respondent submits that the law merely provides a possible sentence, it does not require any particular sentence. The possibility that the maximum sentence could be imposed does not make the law unconstitutional, it makes any inappropriate application of the maximum sentence possibly unconstitutional and subject to reversal upon appeal. On its face, I am attracted to this argument.

[26] Constitutional jurisprudence seeks to consider both declarative and practical effects. By carrying the possibility of the harshest of penal sanctions, s. 6(3)(a) of the CDSA declares Parliament's intention that courts will treat specific types of drug importation extremely seriously. Again, that seems appropriate given the dangers of drug addiction and the ancillary damage to civil society caused by illicit drug importation and trafficking. This is a legitimate legislative goal, and in terms of sending a message, the possibility of a maximum life sentence meets this declarative aim in a rational way.

[27] However, in practical terms, the law seems to equalize serious criminal behaviour with offences that are de minimis. And unfortunately, the equalization of cannabis importation with other more harmful drugs contained in Schedule I seems largely the product of historical consequence rather than legislative intention.

[28] There appears to be no rational connection between Schedule I and Schedule II drug importation despite their inclusion together in s. 6(3)(a) of the CDSA. Contrary to this legislated linkage, courts continue to recognize that drug offences involving Schedule II substances are less morally blameworthy than those committed in relation to Schedule I drugs. Legal literature also suggests that drawing a distinction between Schedule I and II drugs is appropriate based upon different levels of culpability:

…the available penalties for offences under the Controlled Drugs and Substances Act vary depending on the substance involved. Under the Act, controlled substances are organized under a number of Schedules. The available penalty for a given offence differs depending on the Schedule in which the substance is listed, with Schedule I carrying the highest penalties and listing the most dangerous and addictive substances.

In the past, perhaps because substances like marijuana were included in the same Schedule as drugs like heroin and cocaine, courts often distinguished between so-called "soft" and "hard" drugs, for the purpose of sentencing. [The underlining is mine.]

So, despite judicial and academic recognition that Schedule I and II substances and the offenders who import or traffic them are not the same, s. 6(3)(a) imposes an arbitrary equivalence between these drugs and substances.

[29] I accept that the effect of the law is properly characterized by the Applicant:

The offence of importing a Schedule I or II substance is a straight indictable offence punishable by a maximum sentence of life imprisonment. There is no distinction between heroin, cocaine, or marijuana. There is no required minimum quantity to trigger the maximum available sentence, and there need be no intent to traffic for a conviction. Therefore, a person who imports marihuana for personal use is liable to a maximum sentence of life imprisonment, and a conditional sentence is thereby unavailable for that offender.

[30] Granted the Applicant's statement above conflates the effect of s. 6(3)(a) of the CDSA with the combined effect of both s. 6(3)(a) and s. 742.1(c) of the Code when operating together, there is a sense that s. 6(3)(a) is overbroad ("arbitrary in part") given that there are no distinctions made between various "hard" and "soft" drugs, or quantities imported, or whether the drugs are imported for personal use or the purpose of trafficking. These distinctions appear throughout the CDSA, but for this offence, all importation is treated the same. In terms of the maximum sentence, importation of a marihuana cigarette is the same as importation of one tonne of heroin. In this sense, the effect of the law is heavy-handed.

[31] What one also notices when considering s. 6(3) of the CDSA is that Parliament has gone some lengths to distinguish between the importation of substances in Schedules III, IV, V, and VI, and has created hybrid offences with maximum sentences ranging from one year to 10 years depending on which schedule applies. However, for some unknown reason, the differentiation of appropriate penalties for importation of Schedule I and II drugs has not occurred. Given the widespread recognition that there is a difference between crimes committed in relation to "soft" and "hard" drugs, this foreshadows constitutional concerns.

[32] There are several reasonable hypotheticals that reveal the potential of this law to overshoot its mark. Firstly, if a Canadian asks her cousin in Florida to send her two "joints of pot" she is subject to a possible life maximum sentence under this law. If the same person asks her cousin to send her a prohibited firearm with the two joints, her importation under s. 104 of the Code (importation of firearms) could result in either a summary conviction or a maximum 5 year jail sentence, if prosecuted by indictment.

[33] The Respondent argued in oral submissions that this reasonable hypothetical is improper because importation of drugs and firearms are distinct offences under different statutes, addressing different concerns. How different are the offences of the importation of drugs and firearms? Both offences concern public safety, the integrity of our borders, and national security interests. That said, I am not deaf to the Respondent's submission. Perhaps this hypothetical attempts to equate incomparables. Also, I acknowledge that the jurisprudence appears to take an isolated view of the possible effects of a piece of legislation without attempts to measure those effects when compared with other offences within the same or different statutes.

[34] Perhaps a second hypothetical is more reasonable. If a person produces 100 cannabis plants in Canada rather than seeking a couple of marihuana cigarettes from her American relative, she is only liable to a maximum prison sentence of 14 years under s. 7(2)(b) of the CDSA. The variations on this hypothetical are endless. The production laws vary widely under s. 7 of the CDSA. Consider that s. 7(2)(c)(ii) of the CDSA permits a summary conviction and a maximum sentence of 18 months for production of a Schedule III substance, such as Lysergic Acid Diethylamide ("LSD") or Psilocybin ("mushrooms"), regardless of the amount. Again, for some reason, production of a much greater amount of marihuana, or other potentially more addictive or dangerous drugs, is subject to a different (less restrictive) maximum possible sentence than importation, and includes the possibility of summary prosecution. This signals Parliament's intention to distinguish importation as more serious than cultivation offences. One could readily accept that rationale if drug importation laws carried harsher maximum sentences than production laws in a uniform manner.

[35] The lack of symmetry within the importation sections of the CDSA is equally puzzling. Section 6(3)(c) of the CDSA particularizes the importation of barbiturates and benzodiazepines under Schedule IV and provides for a maximum sentence of three years, or a summary conviction with a one year maximum prison sentence, regardless of the amount, or the purpose of the importation. The effect of the distinctions between Schedules II and IV of the CDSA is to suggest that the large-scale commercial importer of Lorazepam (a Schedule IV drug) is less morally blameworthy than someone who crosses the border from Maine (where possession is legal) into Quebec with a "joint of grass" in her backpack for her personal use.

[36] The fact that Parliament has differentiated the maximum sentences for importing substances in Schedules III, IV, V, and VI but has failed to distinguish between cannabis and Schedule I drugs (opium, heroin, or cocaine) suggests an arbitrariness in part within the CDSA.

There is No Way to Read s. 6(3)(a) that is Less Arbitrary in Part

[37] Section 6 of the CDSA reads:

Importing and exporting

6 (1) Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

Possession for the purpose of exporting

(2) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, III, IV, V or VI for the purpose of exporting it from Canada.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if

(i) the offence is committed for the purposes of trafficking,

(ii) the person, while committing the offence, abused a position of trust or authority, or

(iii) the person had access to an area that is restricted to authorized persons and used that access to commit the offence;

(a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years;

(b) if the subject matter of the offence is a substance included in Schedule III, V or VI,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months; and

(c) if the subject matter of the offence is a substance included in Schedule IV,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding three years, or

(ii) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year. S.C. 1996, c. 19, s. 6; S.C. 2012, c. 1, s. 40; S.C. 2017, c. 7, s. 4.

[38] Prior to the recent successful constitutional challenge to the mandatory minimum term of imprisonment for importing a Schedule II substance, part of s. 6(3)(a) of the CDSA required that the importation was proven to be for the purpose of trafficking. In oral submissions the Applicant acknowledged that a similar requirement for the imposition of a life sentence would render s. 6(3)(a) of the CDSA less arbitrary in part, or overbroad.

[39] It is helpful to recall the words of the Supreme Court from the seminal search and seizure case, Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc. ("Hunter"):

While the courts are guardians of the Constitution and of individuals' rights under it, it is the legislature's responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution's requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional.

[40] Query whether the words within s. 6(3)(a)(i) ("the offence is committed for the purpose of trafficking") remain in full force and effect after Duffus and if this would render s. 6(3)(a) less overbroad. Stated differently, if the ratio decidendi of Duffus is simply to remove the words "and to a minimum punishment of imprisonment for a term of one year," do the words "if the offence is committed for the purpose of trafficking" attenuate the effect of s. 6(3)(a) to reduce possible overbreadth. And if the effect of Duffus is to remove this precondition in addition to the former minimum sentence, can these words still be read in to remove the overbreadth of s. 6(3)(a) of the CDSA, as the Applicant has conceded?

[41] I find that the condition within s. 6(3)(a)(i) ("the offence is committed for the purpose of trafficking") is tied to the mandatory minimum sentence rather than the punishment as a whole and I cannot read s. 6(3)(a) to include these words for two reasons. In Duffus, the Applicant sought and the court granted the declaration of invalidity with respect to s. 6(3)(a)(i) of the CDSA, not merely the mandatory minimum within s. 6(3)(a). Also, grammatically, there appears to be a clear break in the provision between the imposition of a life sentence and a minimum sentence, demarcated by the comma after the words "liable to imprisonment for life," and before the words "and to a minimum punishment of imprisonment." This suggests that the subsections (i), (ii), and (iii) of s. 6(3)(a) act only as conditions precedent for the imposition of the mandatory minimum sentence rather than the sentencing provision as a whole. Consequently, I am not prepared to fill the legislative gap to tie a specific intent to the importation to render the law less overbroad.

[42] I find that there is a level of overbreadth in this importation provision of the CDSA in light of the failure to include distinctions between the importation of "hard drugs" found in Schedule I and "soft drugs," like cannabis, found in Schedule II, and the failure to consider the quantities imported, and whether the importation is committed for the purpose of trafficking. In respect of Schedule II substances, Parliament has cast the largest penal net at the risk of catching the smallest offending fish (the reasonable hypothetical offender).

[43] I find that the practical effect of s. 6(3)(a) of the CDSA for those charged with importation of a Schedule II substance is that the Crown has no option to proceed summarily and a maximum life sentence of imprisonment is available. As a result, a discharge under s. 730 of the Code is not a possible sentence for the importation of even a negligible amount of marihuana, unlike any other similarly situated offender importing a much greater amount of a Schedule III, IV, V, or VI drug. This too creates an additional burden on the hypothetical Schedule II importer because a prosecution by indictment affects the time period which must elapse before the offender may apply for a record suspension in respect of the conviction.

[44] In light of Parliament's significant efforts to distinguish the penalties for importing the various substances in Schedules III, IV, V, and VI, and the significantly harsher penalty regime for Schedule I and II drugs, there is simply no rational explanation for treating Schedule I and II substances the same. For these reasons, in respect of the hypothetical offender, I find that s. 6(3)(a) of the CDSA is overbroad and contrary to s. 7 of the Charter.

[45] Though I could begin the s. 1 Charter analysis at this point, I choose to consider the Applicant's alternative argument (s. 6(3)(a) infringes s. 12 of the Charter) before turning to whether the legislation imposes reasonable limits that are demonstrably justified in a free and democratic society.

A. (iii) Section 6(3)(a) of the CDSA Does Not Contravene s. 12 of the Charter

[46] Section 12 of the Charter states:

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

[47] The Supreme Court considered the scope of this protection with respect to the predecessor to s. 6(3) of the CDSA, s. 5(2) of the NCA, in Smith [1987]. That case demonstrates the complexity of s. 12 of the Charter. There were no less than five judgments written of the six-member court who decided the appeal. Justice Lamer (as he then was) described this constitutional right:

In my view, the protection afforded by s. 12 governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed. I would agree with Laskin C.J. in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm". The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, "whether the punishment prescribed is so excessive as to outrage standards of decency". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

In the result, the court found that the certainty of a seven year jail sentence was grossly disproportionate for a "small offender" and struck down s. 5(2) of the NCA.

[48] Chief Justice McLachlin specifically endorsed the approach in Smith [1987], recently in R. v. Nur:

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.

[49] In Lloyd, our Chief Justice further recognized "the tension between Parliament's right to choose the appropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment." It would appear that Parliament is well aware of this tension and it has given statutory recognition to the import of s. 12 of the Charter in s. 718.1 of the Code:

Fundamental Principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [The underlining is mine.]

[50] The analysis to determine whether a sentencing provision contravenes s. 12 of the Charter has two steps. The court must first consider what constitutes a fit and proportionate sentence having regard to the principles found in ss. 718 to 718.2 of the Code. Then the court must determine whether the law requires the imposition of a sentence which is grossly disproportionate to the circumstances of the offence and the particular offender. If the law requires a grossly disproportionate sentence for that defendant or others in reasonably foreseeable circumstances, it will violate s. 12 of the Charter.

[51] The parties agreed to litigate this constitutional challenge before completing their sentencing submissions. Accordingly, it is premature to determine a fit and proportionate sentence for the Applicant. There is an aspect of s. 6(3)(a) of the CDSA that is disproportionate for the hypothetical small offender who imports two marihuana cigarettes through the mail: the prosecution, no matter how well intentioned, can never proceed summarily. Nonetheless, for at least two reasons, this does not inexorably lead to a finding that s. 6(3)(a) of the CDSA offends s. 12 of the Charter.

[52] Firstly, other than the ancillary consequences of the appeal route and record suspension requirements, prosecution by indictment does not in and of itself require a grossly disproportionate sentence. As the Respondent has noted, every possible penological goal can be achieved by s. 6(3)(a) of the CDSA and most sentencing tools are available to the sentencing judge (except a conditional sentence and a discharge) for the hypothetical small offender. The remaining sentencing options could easily avoid a sentence that would qualify as cruel or unusual punishment. Even a disproportionate sentence in a given case does not a grossly disproportionate law make.

[53] Secondly, the mechanism of prosecution (indictment) is not a punishment. Nor has it been suggested by the Applicant that there exists a right to a particular mode of trial which is protected by s. 12 of the Charter. The bald fact that our hypothetical offender must be prosecuted by indictment does not in and of itself implicate s. 12 Charter opprobrium.

[54] For a sentence to be grossly disproportionate it must be "abhorrent or intolerable to society." A sentence which is "merely excessive" is not enough. Although I can easily envisage discharging the hypothetical offender in appropriate circumstances, I cannot conclude that a small fine or a suspended sentence and probation is "so excessive as to outrage standards of decency." Accordingly, I conclude that s. 6(3)(a) of the CDSA does not require the imposition of a sentence which is grossly disproportionate for the hypothetical offender, and on this basis I dismiss the Applicant's alternative argument.

A. (iv) Section 6(3)(a) of the CDSA is Not Saved by s. 1 of the Charter

[55] Section 1 of the Charter reads:

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.

[56] The test to measure whether the infringement of a constitutionally protected right is justified under s. 1 of the Charter was established in Oakes. The first step of the s. 1 analysis considers whether the legislation is demonstrated to respond to a pressing and substantial objective. It would appear that the Applicant does not take issue that the law punishing drug importation readily meets this threshold.

[57] The second step of the Oakes analysis considers whether the legislative objective is rationally connected to the limitation upon a constitutionally protected right.

[58] In Appulonappa, the Supreme Court concluded that there were some aspects of the impugned legislation which were rationally connected to Parliament's aim while others were not, but even so, that sufficed to meet this part of the test: "A rational connection, not a complete rational correspondence, is all this branch of Oakes requires." [Emphasis in the original.]

[59] With respect to this branch, Oakes reminds us that:

…the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.

[60] I am satisfied that there is a rational connection between the legislative aim (to denote some drug importation offences as the most serious criminal offences) and the means employed, the potential upon conviction for life imprisonment.

[61] Do the means employed by the legislation minimally impair the freedom at issue? This is the next step of the Oakes analysis.

[62] When I consider other parts of the CDSA, I am not satisfied that the provision at issue minimally impairs the s. 7 liberty interest. For example, s. 7 of the CDSA contains a complete regime to appropriately punish those who cultivate, manufacture, or otherwise produce drugs in Canada. Like s. 6 of the CDSA, parts of s. 7 include life imprisonment as a possible sanction. In respect of marihuana, s. 7(2)(b) of the CDSA imposes a maximum sentence of 14 years imprisonment. And other subsections include maximum sentences ranging from one year to 10 years of imprisonment, depending on the drug. Again, it seems somewhat irrational that the production and importation laws respecting marihuana are so significantly inconsistent.

[63] A summary conviction procedure under s. 6(3)(a) of the CDSA would substantially minimize the law's impact on the liberty interests of would-be small amount marihuana importers. Moreover, if Parliament had tied to the law a provision regarding the amount of cannabis imported, or the intention to import cannabis for the purpose of trafficking, or the prerequisite of a prior conviction for the same offence, there would be no minimal impairment concerns because life sentences would be restricted to the most serious circumstances of cannabis importation.

[64] The final analysis under Oakes requires an examination of the "proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of 'sufficient importance.'" In order to justify the s. 7 Charter infringement and uphold the applicability of the impugned legislation in this case, overall proportionality of s. 6(3)(a) of the CDSA must be demonstrated by the Respondent.

[65] The Applicant submits, "if the court finds that the provisions are grossly disproportionate, then there can be no finding of proportionality." Nonetheless, in the absence of a finding of a s. 12 Charter violation, disproportionality is still possible. It seems self-evident that disproportionality can exist in situations where gross disproportionality does not.

[66] There may be cases where minimal impairment of a Charter right is wanting and overall proportionality under s. 1 of the Charter can be demonstrated, but this is not one of those cases. There is nothing in the legislative provision to create proportionality. Although they were made in the context of a s. 12 Charter challenge to the mandatory minimum seven year sentence which existed in the predecessor of s. 6(3)(a) of the CDSA, I am reminded of Justice LeDain's concerns in Smith [1987]:

The issue, as I perceive it, and which I confess has given me considerable difficulty, is whether the mandatory minimum sentence of seven years' imprisonment in s. 5(2) of the Narcotic Control Act is to be tested, in the light of s. 12 of the Charter, against the general seriousness of the offence created by s. 5(1) or against the relative seriousness of the whole range of the conduct to which the offence could conceivably apply. I have considerable misgivings about determining the issue of the constitutional validity, on its face, of the mandatory minimum sentence in s. 5(2) on the basis of hypothesis. It is conceded that seven years' imprisonment would not be cruel and unusual punishment for many, if not most, conceivable cases of unauthorized importing or exporting of a narcotic. I have considered whether that should not be sufficient to sustain the validity, on its face, of the mandatory minimum sentence of seven years' imprisonment, subject to the power of a court in a particular case to find that the mandatory minimum sentence is constitutionally inapplicable because it would in all the circumstances of the case be cruel and unusual punishment. Although I have found the flexibility of this approach attractive I have come to the conclusion that it would not be a sound approach to the validity and application of a mandatory minimum sentence provision which applies to a wide range of conduct, if only because of the uncertainty it would create and the prejudicial effects which the assumed validity or application of the provision might have in particular cases. In coming to this conclusion, however, I make no assumption as to whether the mandatory minimum sentence provision in s. 5(2) might be restructured in such a manner, with distinctions as to nature of narcotic, quantities, purpose and possibly prior conviction, as to survive further challenge and still be a feasible and workable legislative alternative with respect to the suppression of a complex and multi-faceted phenomenon.

[67] As indicated above, there are no distinctions made in this specific importation law for the drug involved, or the amount imported, the purpose of the importation, or whether or not the importer has a prior criminal record for this offence. Moreover, the lack of a summary conviction procedure creates a disconnect between the moral culpability of the reasonable hypothetical offender and the sole mechanism (trial by indictment) available to prosecute the defendant. The entire prospect of a jury trial, a maximum life sentence, and the unavailability of a discharge for the offence of importing a couple of cannabis cigarettes is out of proportion to the harm this conduct causes to Canadian society, and consequently, the legislation is not demonstrably justified under s. 1 of the Charter.

B. (i) Section 742.1(c) of the Code is Not Arbitrary

[68] Part of the Applicant's materials include a record of the House of Commons Debates for the second reading of Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other acts ("Hansard"). This material informs the reader of the purpose of the amendment to s. 742.1 of the Code. I specifically rely upon the legislative evidence which has been placed before me to determine the rationale and purpose of s. 742.1(c).

[69] On behalf of the government of the day, the Parliamentary Secretary to the Minister of Finance, Mrs. Shelly Glover, introduced Part 2 of the bill, the purpose of which was described as follows:

To restrict the availability of conditional sentences in the same manner as was advanced in former Bill C-16, which had received second reading and had been referred to the Standing Committee on Justice and Human Rights but had not yet been studied when it died on the order paper at the dissolution of the 40th Parliament.

This government wants to clearly indicate the offences for which a conditional sentence is never an option. This is what the relevant amendments contained in the bill before us address. Rather than leaving it to individual courts to determine whether a particular offence qualifies as a serious personal injury offence, it clearly identifies all offences which should never be eligible for a conditional sentence. It removes all of that uncertainty.

[70] A secondary goal of the legislation was to avoid the under-inclusivity of certain offences from the ineligibility of conditional sentencing and to remove the "serious personal injury offence" pre-condition altogether:

Specifically, the reforms would eliminate the reference to serious personal injury offences in section 742.1 and would make all offences punishable by 14 years or life ineligible for a conditional sentence.

This would, for instance, make the offences of fraud, robbery and many other crimes clearly ineligible for a conditional sentence. It would also make offences prosecuted on indictment and punishable by a maximum term of imprisonment of 10 years ineligible for a conditional sentence if they: result in bodily harm; involve the import or export, trafficking and production of drugs, or involve the use of a weapon. It is the opinion of the government that where these circumstances are present, there is a need to emphasize the sentencing objectives of denunciation and deterrence and therefore eliminate the possibility of a conditional sentence.

[71] The explicit aims of the amendments to s. 742.1 of the Code were to reduce sentencing inconsistency by limiting judicial discretion and to emphasize the primacy of denunciation and deterrence by the removal of conditional sentencing for specified offences.

[72] The removal of a sentencing option is not in itself constitutionally suspect unless it would require the imposition of an unfit sentence. As our Supreme Court has said: "Parliament can limit a sentencing judge's ability to impose a fit sentence, but it cannot require a sentencing judge to impose grossly disproportionate punishment."

[73] The effect of s. 742.1(c) of the Code is to prevent the imposition of conditional sentences for serious offences, and specifically offences punishable by 14 years or life imprisonment. There is nothing irrational or disconnected in the operation of s. 742.1(c) from the stated goals of the law. One might question whether the line precluding conditional sentences ought to have been drawn at life maximum offences alone, but that is a policy decision Parliament is better suited to determine and I am not prepared to find that there is no connection between the legislation and its effect.

B. (ii) Section 742.1(c) of the Code is Not Overbroad

[74] Of particular significance to this Application is the legislative intent expressed in paragraph 1315 of page 1357 of the 22 September 2011 Hansard:

In addition, the current prerequisites to the availability of a conditional sentence do not exclude drug offences, such as the production, importation and trafficking of heroin, unless they are committed as part of a criminal organization and provided that they are punishable by a maximum term of imprisonment of 10 years or more and prosecuted by indictment. [The underlining is mine.]

[75] The specific mention of heroin (a Schedule I drug) and the absence of mention of cannabis or other drugs is interesting. It is clear from this evidence that Parliament intended to preclude domiciliary detention for the importation of Schedule I drugs. What about Schedule II substances? As alluded to above, Parliament has drawn a distinction between drug importation among the Schedules to the CDSA. Parliament has not chosen to preclude Schedule IV substances from the conditional sentencing regime. By operation of s. 6(3)(c) of the CDSA and s. 742.1 of the Code, Schedule IV substances remain eligible for conditional sentences to the present day.

[76] If it was Parliament's intention to remove the possibility of conditional sentences for all drug importation offences, it has failed. If it was Parliament's intention to signify that drug importation may be among the most serious offences, and thus, deserving of the strong message of denunciation and deterrence that the ineligibility of conditional sentencing represents, than the message, however conflicted it may appear, is communicated by the amendments to s. 742.1 of the Code.

[77] Again, I am doubtful that the inclusion of Schedule IV substances and the omission of Schedule II substances from the conditional sentencing regime was intentional. Rather, it is more likely the case that these inconsistencies within the Act are the result of historical happenstance as various substances have moved between schedules and various statutory amendments have taken place since the legislation came into force on 14 May 1997. Regardless, I am not prepared to find that s. 742.1(c) of the Code is overbroad.

[78] In this case, I find that Parliament has met an appropriate balance in s. 742.1(c) of the Code, because that provision standing alone does not overshoot its intent. Parliament has restricted the availability of an alternative to custodial imprisonment for the most serious offences. It is only in situations where the heavy hand of s. 742.1(c) is forced by the maximum penal designation of the substantive offence that constitutional imbalances may occur.

[79] When considered in the context of the entire commentary of the government in support of the legislative amendments, the addition of the penultimate and maximum sentences as a barrier to conditional sentencing is not arbitrary in part (overbroad). I agree with the Respondent that "the effect of the law is commensurate with its object." As a result, I do not find that s. 742.1(c) of the Code infringes s. 7 Charter protected interests.

C. (i) Together Sections 6(3)(a) of the CDSA and 742.1(c) of the Code Contravene s. 7 of the Charter

[80] As alluded to in previous sections, the combined effect of these laws is not prima facie arbitrary. Parliament has appropriately decided to include a life imprisonment maximum sentence for the most serious drug importation offences. As well, the Legislature cannot be faulted for removing certain offences from eligibility for conditional sentences of imprisonment. It should be no surprise to commercial drug importers that the sentences they receive must reflect Canadian society's intolerance of destructive drug trafficking by their ineligibility for conditional sentences. Parliament's desire to remove conditional sentences from consideration in cases of serious criminality is well articulated, rational, and appropriate.

[81] The potential for these laws to intersect with constitutionally protected values exists in the small offender situations where Schedule II substances are imported. In these cases, Parliament has unreasonably removed another possible sentencing tool, community rather than institutional incarceration, in an overbroad way. The combined effect of these provisions is arbitrary in part because, rather than focussing on the aggravating features of the offence, the removal of judicial discretion is tied to the maximum possible sentence, which may bear no relationship to the level of criminality, the moral blameworthiness of the crime, or the circumstances of the particular offender before the court.

[82] Parliament has sought to eliminate conditional sentencing for the most serious of importation offences, but it has not said that all drug importation is so serious that conditional sentences should never be imposed for importing drugs into Canada. As mentioned above, conditional sentencing is not prohibited by the combined effect of these laws for Schedule IV importers. Small amount cannabis importation is not the most serious of importation offences and the hypothetical offender is not the most serious of importation offenders. By removing conditional sentences for Schedule II importers without distinguishing between importation for personal use or trafficking, Parliament has made a policy choice which appears irrational or arbitrary in some cases, especially when compared with Schedule IV importation offenders.

[83] As well, arbitrariness exists because cannabis was historically linked to Schedule I drugs and unique to the importation provisions of the CDSA (i.e., unlike the provisions respecting possession, production, and trafficking) Parliament has failed to distinguish between these two schedules.

C. (ii) The Combined Operation of Sections 6(3)(a) of the CDSA and 742.1(c) of the Code Are Not Saved by Section 1 of the Charter

[84] For reasons similar to those expressed in the s. 6(3)(a) Oakes analysis above, the combined effect of these sentencing provisions is not saved by s. 1 of the Charter. Minimal impairment of the constitutionally protected s. 7 right is missing, so the laws are less salvageable by s. 1 of the Charter in tandem than s. 6(3)(a) of the CDSA was in isolation.

[85] Again, it does not appear that the Applicant takes issue with the pressing and substantial aspect of the Oakes analysis with respect to the combined effect of these laws. One could argue that the mention of drug importation during the debates of what became the Safe Streets and Communities Act is evidence of the pressing and substantial objective. As well, there is some correspondence between the legislative aims and the impugned legislation to satisfy the rational connection branch of the Oakes test. By removing specified drug importation offences from conditional sentencing Parliament has clearly and rationally designated specific crimes as very serious and deserving of sentences which signify these concerns.

[86] I am not satisfied that the vehicle to obtain these aims, the inclusion of Schedule I substances within s. 6(3)(a) of the CDSA, or the lack of distinctions in the section for the amount of the substance imported, the purpose of the importation, or whether or not the offender has a prior record for this offence, minimally impairs the constitutional right to be free from laws that are overbroad. Moreover, overall proportionality of these provisions, as required by the third branch of Oakes, is lacking. The combined effect of these laws is that both the bottom and top ends of the sentencing spectrum (discharges and institutional incarceration) have been significantly affected for cannabis importation, without regard to the level of criminality or the culpability of the offender. For these reasons, the combined effect of these sentencing laws are not demonstrably justified under s. 1 of the Charter.

4. CONCLUSION

[87] I have found that s. 6(3)(a) of the CDSA is overbroad, contrary to s. 7 of the Charter. The law does not minimally impair a defendant's liberty interests, nor does it achieve overall proportionality, as required, to save the provision under s. 1 of the Charter.

[88] I have also found that the combined effect of s. 6(3)(a) of the CDSA and s. 742.1(c) of the Code infringes s. 7 of the Charter in the same way: these laws act in concert in an overbroad way. Lastly, I do not find that the combined operation of these provisions is saved pursuant to the Oakes analysis under s. 1 of the Charter.

[89] For these reasons, I grant the Applicant a judicial exception from the stand-alone and combined applicability of s. 6(3)(a) of the CDSA and s. 742.1(c) of the Code. Mr. Williams is not precluded from seeking a conditional sentence of imprisonment upon the resumption of his sentencing hearing.

Released: 29 September 2017

Justice G. Paul Renwick