Court Information

Ontario Court of Justice

Date: September 21, 2018

Court File No.: 17-26866-53

Toronto Region – Old City Hall

Parties

Between:

Her Majesty the Queen

— and —

Abdalla Alamary

Judicial Officer and Counsel

Before: Justice H. Pringle

Heard on: September 7 and September 13, 2018

Reasons for Judgment released on: September 21, 2018

Counsel:

• Rohan Robinson – counsel for the Crown
• Iryna Revutsky – counsel for the accused

Reasons for Judgment

PRINGLE J.:

[1] These written reasons supplement the oral reasons for the sentence imposed in this case. Here, I address only whether the question of whether there remains an operative mandatory minimum sentence of three years jail for Trafficking a Firearm.

[2] In R. v. Hussain, 2015 ONSC 7115, Edwards J. of the Superior Court of Justice struck down this mandatory minimum as violating s. 12 of the Charter. Subsequently, Lacelle J. in R. v. Sauve, 2017 ONSC 7375, held that while Hussain was not strictly binding upon her, she agreed with its result. In Mr. Alamary's case, the defence relied on these decisions to argue that a sentence of less than three years was available.

[3] Prior to sentencing, I asked the parties to assist with whether these decisions were persuasive or binding on the Ontario Court of Justice. It was important to clarify this issue, and the legal basis for the defence position, on the record. I am indebted to both Ms. Revutsky and Mr. Robinson for the additional time they invested in answering my question.

[4] Unsurprisingly, the defence submitted these Superior Court decisions were binding and the mandatory minimum was of no force and effect here. Unsurprisingly, the Crown disagreed, submitting that these Superior Court decisions had no binding effect. I must add that in the best traditions of the bar, Mr. Robinson provided both cases that affirmed his position and cases that did not.

[5] After considering these cases, I accept that the declaration of invalidity made in R. v. Hussain must bind me in Mr. Alamary's case. There is no longer a valid mandatory minimum sentence for the offence of Trafficking a Firearm.

Constitutional Framework

[6] The Superior Court of Justice, being a court of inherent jurisdiction, has the power to declare a law unconstitutional. The power of declaration is derived from s. 52(1) of the Charter, which states:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[7] By way of contrast, the Ontario Court of Justice cannot make a constitutional declaration of invalidity. Being a statutory court, where an Ontario Court of Justice judge concludes a law is unconstitutional, that conclusion only applies within the four corners of the individual case. Despite the inability to declare a law of no force and effect, it is unfair to convict, or sentence, a person pursuant to an unlawful statute.

[8] As the Supreme Court of Canada held in R. v. Lloyd, 2016 SCC 13 at para. 19:

The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982. It is open to provincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own; however, the law remains in full force or effect, absent a formal declaration of invalidity by a court of inherent jurisdiction.

[9] The Superior Court's inherent power to declare a statute constitutionally invalid is much different. Drawing from Lloyd, that difference must be that when a law is declared of no force and effect, it is not open to provincial court judges to reach any other conclusion. The declaration of that law's invalidity binds the Ontario Court of Justice, unless it is overturned on appeal. Indeed, the binding nature of declarations is evidenced in the Superior Court's power to suspend operation of a declaration for a limited time period.

Binding Effect of Declarations

[10] A declaration of invalidity binds the Ontario Court of Justice and the Crown, as Smith J. held in R. v. Sarmales, 2017 ONSC 1869 at para. 20:

…once a declaration is made by a judge with inherent jurisdiction, that the law contravenes the Constitution, the offending section ceases to exist and is of no force and effect. This ruling is binding on the Crown and can only be altered on appeal. As a result, there is no constitutional issue that remains "in question" once such a declaration has been made under s. 52(1) of the Constitution Act by a judge with inherent jurisdiction.

[11] Superior Court judges, too, must follow cases which declare a law of no force and effect. As Strathy J. (as he then was) said in R. v. Scarlett, 2013 ONSC 562 at para. 36, "Where legislation is declared unconstitutional the declaration applies not merely to the parties immediately before the court, but to the whole world." However, he asserted at para. 43, an exception to this rule lies where a court of coordinate jurisdiction finds the declaration clearly wrong because:

(a) the validity of the judgment was affected by subsequent decisions;

(b) the judge overlooked binding case law or a relevant statute; or

(c) the decision was otherwise made without full consideration.

[12] Whether or not this exception exists for the Superior Court of Justice remains a matter of dispute. Recently, Spies J. held that no such exception exists and that "if a judge of this Court finds that a provision of a statute is unconstitutional, by virtue of s. 52 of the Constitution Act and Ferguson, that provision is invalid for all future cases – it is 'off the books'. Coming to this conclusion does not require a consideration of judicial comity.": see R. v. McCaw, 2018 ONSC 3464 at para. 76.

[13] This interesting debate has no applicability here, though. Clearly, there is no such exception available in the Ontario Court of Justice: see R. v. Nayanookeesic (2005), 197 C.C.C. (3d) 212 (Ont. S.C.J. – A.D.) at para. 44. The Ontario Court of Justice does not have coordinate jurisdiction to a Superior Court exercising its declarative power. We are the court to which declarations are meant to apply most forcefully. Jurisprudential chaos would ensue if lower courts were free to operate as though a Superior Court's declaration of constitutional invalidity had no practical impact on them.

[14] As Kenkel J. observed in R. v. Haniffa, 2017 ONCJ 844 at para. 15:

If the Crown is right (that declarations do not bind courts of co-ordinate jurisdiction) then the constitutional remedy of a declaration under s. 52 of the Charter loses much of its effect. Without appealing a declaration the Crown could continue to challenge that decision in subsequent cases.

[15] I agree. A declaration must necessarily have impact. Either the Crown appeals a declaration of constitutional invalidity, or they accept the effect of that declaration. There is no middle ground available in this situation. As a result, the effect of R. v. Hussein is that the offence Mr. Alamary pled to, Conspiracy to Traffic a Firearm, no longer carries a mandatory minimum sentence of three years in jail.

Conclusion

[16] Again, I am most grateful to Mr. Robinson and Ms. Revutsky for assisting me with this issue, and for their diligent preparation and professionalism throughout the proceeding.

Released: September 21, 2018

Signed: Justice H. Pringle