COURT FILE NO.: CR-13-166 DATE: 20160429

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – SAMUEL ROBINSON Applicant

COUNSEL: S. Dawson, for the Crown T. Bryson and J. Fagan, for the Applicant

HEARD: February 11, 12, 2016

VALLEE J.

Nature of the Application

1Mr. Robinson was found guilty of possession of marijuana, cocaine, methamphetamine and BZP and possession of methamphetamine and BZP for the purposes of trafficking.

2Mr. Robinson brings this application for an order that the mandatory minimum sentence set out in s. 5(3)(a)(ii)(A) of the Controlled Drugs and Substances Act infringes s. 12 and s. 7 of the Charter and that it be declared of no force and effect under s. 52(1) of the Constitution Act, 1982.

3For the reasons set out below, I conclude that s. 5(3)(a)(ii)(A) of the Controlled Drugs and Substances Act does infringe s. 12 of the Charter. The question of whether it is justified under s. 1 of the Charter remains for consideration.

Legislative Background

4The Safe Streets and Communities Act included significant amendments to the sentencing provisions of the Controlled Drugs and Substances Act, among other things. The amendment that concerns this application is a mandatory minimum jail term of two years for possession of a Schedule I or II substance for the purposes of trafficking upon proof of an aggravating factor. It states as follows:

5.(1) Trafficking in substance – No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

(2) Possession for purpose of trafficking – No person shall, for the purposes of trafficking, possess a substance included in Schedule I, II, III or IV.

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

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life…

(ii) to a minimum punishment of imprisonment for a term of two years if

(A) The person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years.

5The Applicant challenges this two year mandatory minimum sentence as being contrary to s. 12 and s. 7 of the Charter. He states that it mandates a grossly disproportionate sentence. He also states that it is vague and overbroad.

6The relevant provisions of the Charter state:

7. 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.

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

The Issues

7This application raises the following issues:

1. Does the mandatory minimum sentence infringe s. 12 of the Charter?
2. Does the mandatory minimum sentence infringe s. 7 of the Charter?
3. If so, is the mandatory minimum sentence justified under s. 1 of the Charter?

8Section 1 of the Charter will not be considered in this decision. The Crown requested my decision on sections 12 and 7 prior to making submissions on section 1.

The Facts

9On May 4, 2013, Barrie City police received an anonymous complaint that two female youths were drinking alcohol at the skate park. They then attended at the skate park. After speaking with a woman who was in a nearby group, an officer noticed that Mr. Robinson was on the periphery of the group and was wearing a backpack. After being asked, Mr. Robinson denied that there was any alcohol in the backpack. The officer asked him if he could see the bag. Mr. Robinson provided the bag and, while doing so, stated to the officer that there were drugs in the bag, specifically marijuana. After he stated this, the officer arrested him for possession of a controlled substance pursuant to the CDSA. The officer’s partner then opened the backpack and saw a bag of marijuana in it. Subsequently, the officers took Mr. Robinson to the police station.

10Mr. Robinson’s backpack was thoroughly searched at the police station. In addition to the marijuana, it contained methamphetamine, benzylpiperazine (BZP) and cocaine. Mr. Robinson also had $115.00 in his pocket.

11Mr. Robinson was charged with unlawful possession of over 30 grams of marijuana, 25 pills containing methamphetamine, 24 pills containing BZP and 3.9 grams of cocaine. He was also charged with possession of those four substances for the purposes of trafficking.

12The Crown proceeded by way of indictment. Mr. Robinson elected to be tried by judge alone. He was found guilty of possession of marijuana, cocaine, methamphetamine and BZP. He was found guilty of possession of methamphetamine and BZP for the purposes of trafficking. He was found not guilty of possession of marijuana and cocaine for the purposes of trafficking.

13The evidence before me was that the skate park is located within a larger public park, known as Queen’s Park, in downtown Barrie. The skate park itself is a concrete structure that people use for skateboarding. People of various ages use it. Accordingly, Mr. Robinson was in a public place that could be argued to be “usually frequented by persons under the age of 18 years.”

Mr. Robinson’s Circumstances

14Mr. Robinson was 21 years old at the time of the offences. He had no prior adult criminal record. The pre-sentence report provides the information set out below.

15Mr. Robinson’s parents were very young when he was born. They were inexperienced and ill prepared to be parents. Mr. Robinson witnessed a lot of verbal fighting when he was growing up. He was bullied when he was in school because he was quiet and shy. In 2011, when he was a young person, he was convicted of assault and received 18 months’ probation. He left high school after the assault and did not return. He has very little employment experience and also has a substance abuse problem. He started using marijuana when he was 12 and is now a chronic user. When he was 15, he started experimenting with other more serious drugs.

16Mr. Robinson’s father suffered a heart attack 4 years ago which resulted in the family’s losing their home due to financial hardship. They moved in with Mr. Robinson’s grandmother and uncle who suffers from severe mental health issues. Mr. Robinson then moved out to be on his own because he did not like his uncle’s issues.

17He was involved with the Canadian Mental Health Association from 2013 to 2014 to address his substance and mental health issues. He appears to have struggled with depression and anxiety although there has been no formal diagnosis.

18Prior to his arrest, he was selling drugs to support his extensive drug habit. He currently lives with his mother and his uncle as required by his bail conditions. Mr. Robinson has a four year old daughter who lives with her mother in Toronto. The mother describes Mr. Robinson as a good person who has matured. He is a great father. Their daughter loves spending time with him.

19Mr. Robinson accepts full responsibility for his actions and demonstrates a willingness to make amends. If he is incarcerated, he is willing to attend the Ontario Correctional Institute. It offers extensive treatment for illicit drug use.

Positions on Sentencing

20The Crown and defence each relied on a number of cases in support of their submissions.

21The Crown states that but for the mandatory minimum, an appropriate sentence for Mr. Robinson would be 10 months for possession for the purposes of trafficking methamphetamine. He should receive two additional months consecutive for the other three offences resulting in a total of 12 months of incarceration. The Crown states that when one considers the various relevant cases, Mr. Robinson is on the very low end of the range. In fact, he is even lower than the low end.

22The defence states that Mr. Robinson should be sentenced to six to eight months of incarceration for possession for the purposes of trafficking methamphetamine. He should receive an additional two months consecutive for the other three offences. Probation should also be ordered for Mr. Robinson for a period of three years so that he can be supervised in the community.

23I have reviewed the cases relied upon by the Crown and defence and am satisfied that but for the mandatory minimum, the appropriate range for sentence is 6 to 12 months together with probation.

24Both the Crown and the defence agree that but for the mandatory minimum sentence, a penitentiary sentence would not be appropriate for Mr. Robinson.

Does the two year mandatory minimum sentence infringe s. 12 of the Charter?

25Section 12 of the Charter states, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” Both counsel state that “cruel and unusual” has come to be interpreted as grossly disproportionate.

26Mr. Robinson states that the mandatory minimum sentence infringes his s. 12 Charter rights because it catches conduct and certain offenders for whom a penitentiary sentence would be completely inappropriate.

27In R. v. Nur, 2015 SCC 15, in par 35, the court stated,

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, 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.

28I must also consider the sentencing objectives of the Controlled Drugs and Substances Act. Section 10 states,

10. (1) Purpose of sentencing – Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

29Section 10(2) sets out certain aggravating factors including, in par 10(2)(a)(iii), the same language contained in the section in issue.

30I note that the principles of sentencing set out in s. 718 of the Criminal Code are incorporated into s. 10 of the Controlled Drugs and Substances Act. Section 718 states,

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and,

(f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

31Section 718.2(a) of the Criminal Code states that, “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” This section sets out certain aggravating factors in ss. (i) to (v). Sections (b) to (e) state that sentences should be similar in similar circumstances, if consecutive, they should not be unduly harsh, a custodial sentence should not be imposed if less restrictive sanctions are appropriate, and all available, reasonable sanctions other than imprisonment should be considered for all offenders.

The Crown’s Position

32The Crown states that the Safe Streets and Communities Act was an attempt to fine tune the law. The amendments are specific and the level of seriousness is reflected in the mandatory minimum sentences. The provisions accomplish what the court set out in Smith and Nur. The provisions are not too broad. Furthermore, the standard of gross disproportionality is not easily reached. Legislation cannot be struck down lightly. Parliament decides what the laws and sentences should be. The judiciary interprets and applies the law. Although the judiciary does have an obligation to strike down unconstitutional laws, deference is owed to Parliament. Legislation should be struck down only in the clearest of cases.

33There are two steps in the framework for approaching an analysis of an alleged s. 12 Charter breach. The court must decide, on the facts of this particular case, whether the mandatory minimum sentence is grossly disproportionate. If it is not, then the court must consider hypothetical situations in which the sentence could be grossly disproportionate.

34The Crown states that Mr. Robinson will no doubt be incarcerated for a period of time. The Crown questions whether 12 months or 2 years will make a big difference to him personally? No jail sentence is pleasant. It is not meant to be. It is to serve as punishment, deterrence and denunciation. In addition, there is a rehabilitative aspect to jail sentences. In legislating the mandatory minimum sentence in the section, Parliament has said that denunciation and deterrence are important. Deference is owed to Parliament unless it has gone too far. A two year sentence is long and harsh. It is double the sentence that Mr. Robinson would receive but for the mandatory minimum but it is not too long or severe. It does not reach the level required for a section 12 infringement. It is not grossly disproportionate to the seriousness of the offence and Mr. Robinson’s degree of responsibility.

Analysis

a) Is the two year mandatory minimum sentence grossly disproportionate on the facts of this case?

35Mr. Robinson was at a skate park at the time of the offence. He stated and I accept that someone had stolen his skateboard earlier and he was watching to see if it would re-appear. The evidence of the police, which I accept, was that they approached him because they wondered whether he had been providing alcohol to minors at the park. They did not approach him because they were concerned that he was selling drugs.

36According to the certificates of analyst, Mr. Robinson possessed 68.4 grams of marijuana, 25 pills containing methamphetamine, 24 pills containing BZP and 3.9 grams of cocaine. He was found guilty of possessing the methamphetamine and BZP for the purposes of trafficking. He was found guilty of simple possession of the marijuana and cocaine.

37In Nur, the court considered the difficulties with mandatory minimum sentences. It stated in pars 44 and 45,

Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing…

Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.

38In R. v. Lloyd, 2016 SCC 13, par 27, the court made a similar comment as follows:

The problem with the mandatory minimum sentence provision in this case is that it “casts its net over a wide range of potential conduct”: Nur at para 82. As a result, it catches not only the serious drug trafficking that is its proper aim, but conduct that is much less blameworthy. This renders it constitutionally vulnerable.

39The mandatory minimum sentence in issue here is two years. This is a penitentiary sentence. Mr. Robinson does not have an adult criminal record.

40Rehabilitation is an important factor to consider in sentencing. A penitentiary sentence would fail to give appropriate weight to the significant potential for rehabilitation in this case. Mr. Robinson is a first time offender. He is young. He has the potential to turn his life around. This must be given considerable weight in determining an appropriate sentence for him.

41In Nur, the court noted that the Parole Board cannot be relied upon to address a disproportionate sentence. This is a judicial function. In Nur, par 98, the court stated,

…parole is a statutory privilege rather than a right. The discretionary decision of the parole board is no substitute for a constitutional law…the role of the parole board…is to ensure that an offender is safely released into the community, not to ensure that an offender serves a proportionate sentence. That is the function of one person alone – the sentencing judge.

42The defence suggests that but for the mandatory minimum, an appropriate custodial sentence for Mr. Robinson is six to eight months. The Crown suggests that it is 12 months. The mandatory minimum is obviously double the otherwise appropriate sentence, based on the Crown’s submissions. If a mandatory minimum sentence doubled an otherwise appropriate sentence, for example from 11 months to 22 months, this might not result in gross disproportionality; however, the doubling effect is particularly significant here because it mandates a penitentiary sentence in contrast to a reformatory sentence. Most Canadians would be shocked to find that a person in Mr. Robinson’s circumstances could be sent to prison for two years.

43For these reasons, I conclude that the two year mandatory minimum sentence is grossly disproportionate on the facts of this particular case. In case I have erred, I will go on to consider whether the mandatory minimum sentence would be grossly disproportionate in a hypothetical situation.

b) Is the mandatory minimum sentence of two years grossly disproportionate on the facts in a reasonable hypothetical situation?

44In a s. 12 Charter challenge, the court must consider a reasonable hypothetical offender and the reasonable foreseeability of the application of the mandatory minimum sentence. In order for the hypothetical offender to be reasonable, it must include all of the elements of the offence that trigger the mandatory minimum sentence. According to Nur, par 68,

The reasonability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded.

45The following is the reasonable hypothetical offender proposed by Mr. Robinson:

a. An offender who is not found actually trafficking, but is found in possession of one or more drugs or substances set out in Schedule I or Schedule III of the CDSA;

b. The quantity of the Schedule I and Schedule III substances in the possession of this offender are each in themselves consistent with personal possession, but in their totality, together with other evidence of the possession of scales and packaging materials, support a finding that this offender is in possession of those drugs and substances for the purpose of trafficking (aside from any portion which would otherwise be personally consumed);

c. The quantity of the individual drugs so found in the possession of this offender are also consistent with transactions at the lowest or street level of trafficking, in which the quantity sold, given or shared is suitable for immediate consumption;

d. This offender is a young adult, between 18 and 25 years of age, and shares many of the characteristics, lifestyle, background and social context of other young adults and young persons within that age bracket, including experimenting with the consumption of drugs;

e. This offender, as an occasional drug user, has a risk of developing an addiction depending upon his or her pattern of drug use and drug of choice;

f. The offender is arrested “in or near a school, on or near a school ground, or any other public place usually frequented by persons under the age of 18 years”; and

g. The offender has either no criminal record or no related and lengthy criminal record, but may have a prior adult or youth record for simple possession contrary to the CDSA.

46Mr. Robinson also states that,

This “reasonable hypothetical” distinguishes this offender from a higher-level trafficker dealing for profit in mid or high-level quantities of drugs. In contrast, this “hypothetical offender” is entrenched in the very social context of young persons and young adults in terms of closeness in age, patterns of behaviour, maturity and the experience of drug use in his or her social circle;

This “hypothetical offender” would be expected to have a social circle of friends comprised of teenage young persons and young adults of 25 years or less. Much older adult males are rarely seen with persons under the age of 18 other than in clearly parental or supervisory roles. In fact, an older adult male in street clothes trying to make contact with young persons by talking about drugs is very likely to be seen as an undercover police officer and shunned, or to be feared because of his greater physical capabilities and uncertain sexual interests. Therefore, it would seem likely that persons trafficking in drugs among young persons would be themselves either teenagers or young adults. This supports the reasonable hypothetical herein by identifying that offender as being between 18 and 25 years of age;

This analysis would identify with reasonable foreseeability that the offender on whom the mandatory minimum sentence would be imposed is in fact a young adult experimenting with the use of illegal substances funded through street-level transactions with likeminded persons, namely those under 18 and young adults;

An assumption is that this “hypothetical offender” has no criminal record or no lengthy or related criminal record given his assumed age range. In particular, this offender would not have a prior conviction for a “designated drug offence” – any drug offence other than simple possession – which would then also qualify this offender to face the 1 year mandatory minimum sentence under s. 5(3)(i)(a) of the CDSA. That repeat offender is quite distinct from this hypothetical offender.

Analysis

47The Crown agrees that this is a reasonable hypothetical offender. In fact, these criteria are very similar to Mr. Robinson’s situation. The Crown agrees that the hypothetical offender would be caught by the mandatory minimum sentence.

48For the same reasons in which I concluded that the two year mandatory minimum term of imprisonment was grossly disproportionate in Mr. Robinson’s circumstances, I conclude that it is also grossly disproportionate on the facts in the hypothetical situation. It infringes s. 12 of the Charter.

49Because I have concluded that the mandatory minimum sentence violates s. 12 of the Charter, the question of whether it also violates s. 7 of the Charter need not be addressed.

50The remaining issue to be decided is whether the two year mandatory minimum sentence can be justified under s. 1 of the Charter.