BARRIE COURT FILE NO.: 14-036

DELIVERED ORALLY: 20160616

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

STEPHEN MORRIS Applicant

S. Dawson, for the Federal Crown

A.N. Young and R.J. Morhan, for the Applicant

HEARD: March 30, 2016

RULING ON MOOTNESS APPLICATION

MULLIGAN J.:

Background

[1] Stephen Morris pleaded guilty to producing marijuana and cannabis resin, contrary to s. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (CDSA) on July 4, 2013. The Crown originally gave notice that it was seeking the mandatory minimum sentence of six months incarceration, pursuant to s. 7(2)(b)(i) of the CDSA. The matter was then adjourned while defence counsel prepared a constitutional challenge to that section. Just prior to the hearing of that challenge, the Crown informed defence counsel that it would not rely on the notice provision contained in s. 8 of the CDSA. The Crown’s decision rendered the constitutional challenge moot. However, while acknowledging the mootness issue, defence counsel argues that this court still has discretion to hear the claim based upon the criteria articulated in R. v. Borowski, 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342.

[2] For the reasons that follow, I decline to exercise my discretion to hear the constitutional challenge, given that the challenge is now moot.

The Borowski Principles

[3] It is clear that a Superior Court does have jurisdiction to consider applications when the underlying rationale for the application has been rendered moot. The Borowski Principles have been summarized in the headnote to Borowski as follows:

The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The general policy is enforced in moot cases unless the court exercises its discretion to depart from it.

The approach with respect to mootness involves a two-step analysis. It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case. … The second stage in the analysis requires that a court consider whether it should exercise its discretion to decide the merits of the case, despite the absence of a live controversy.

[4] The Ontario Court of Appeal considered and applied these principles in Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197, 260 O.A.C. 125. As Watt J.A. noted, at para. 35:

The doctrine of mootness is one aspect of a general practice of courts to decline deciding a case that raises only a hypothetical or abstract question…. Courts decline to decide cases in which their decision will have no practical effect on the rights of the parties.

And, at para. 36:

The courts enforce this general policy in moot cases. But the general rule is not unyielding. A court may exercise its discretion to depart from its policy or practice by considering two questions:

(i) has the tangible and concrete dispute disappeared, leaving only academic issues?

(ii) if the answer to the above question is yes, should the court exercise its discretion to hear the case?

[5] In the circumstances of the case before it, the Court of Appeal proceeded with the hearing, notwithstanding mootness. This was because, on the particular facts before it, the Court noted at para. 47, “[T]he issue [in the appeal] remains alive only for a short period in appellate time and thus is largely evasive of appellate review.”

The Defence Position

[6] The defence argues that when the Borowski principles are applied in the context of this case, this court ought to proceed with the constitutional challenge issue, despite mootness. First, the defence notes that an adversarial relationship exists between the Crown and defence. No sentencing decision has yet been made by the court. Second, there is a practical effect to the mandatory minimum sentence enacted by Parliament. It creates an inflationary floor, which judges might be drawn to consider when imposing a sentence for offenders such as Mr. Morris. Third, the defence notes the recurring nature of such offences and the public importance of the issue of mandatory minimum sentences for offenders such as Mr. Morris.

Crown Position

[7] The Crown agrees that the adversarial relationship between the Crown and defence exists, but takes a different view with respect to the inflationary floor of sentences. As the Crown sets out in its factum at para. 17:

So, while the inflationary floor exists, it does so only within the confines of charges where the mandatory minimum applies. Since the applicant is no longer subject to a mandatory minimum, there is no reason why the inflationary floor would affect his sentence. The salient question is, even if the applicant was successful in his constitutional challenge, would that have any real impact on the sentence he will serve? There is no jurisprudence that suggests that there is a “deflationary” effect that reduces all sentences where a mandatory minimum is struck down.

[8] The constitutionality of s. 7(2)(b)(i) is currently before the Court of Appeal. As the Crown notes in its factum at para. 20:

On September 25, 2015 in R. v. Vu, 2015 ONSC 5834, Durno J. of this Court concluded that the mandatory minimum sentences provided for in ss. 7(2)(b)(i)(ii) and 7(3)(c) of the CDSA violate s. 12 of the Charter, and were not saved by Charter s. 1.

Judicial Economy

[9] In Borowski, the Supreme Court of Canada expressed concern for the use of judicial resources in mootness questions. The Court suggested a balancing approach, stating at p. 361, “The economics of judicial involvement are weighed against the social cost of continuing uncertainty in the law.”

[10] The Supreme Court of Canada has considered mandatory minimum sentences in two recent cases, albeit in different circumstances than those in which Mr. Morris finds himself: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 and R. v. Lloyd, 2016 SCC 13. In Lloyd, McLachlin C.J. speaking for the majority, stated, at para. 27:

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.

[11] Durno J. tackled this very vulnerability in R. v. Vu, 2015 ONSC 5834. After a constitutional challenge hearing, Justice Durno struck down the very section originally relied upon by the Crown in this case requesting a mandatory minimum sentence for Mr. Morris. Justice Durno concluded, at para. 267:

The mandatory minimum sentences imposed by ss. 7(2)(b)(i)(ii) and s. 7(3)(c) are inconsistent with s. 12 of the Charter and are therefore declared of no force or effect under s. 52 of the Constitution Act, 1982.

[12] The case before Justice Durno involved a sophisticated marijuana grow operation including over 1,000 marijuana plants and a hydro bypass. As the Crown noted in its factum, Vu is currently under appeal to the Ontario Court of Appeal.

[13] As the defence correctly notes, the CDSA section applicable to the Vu case was not s. 7(2)(b)(i) specifically. Subsection 7(2)(b)(i) deals with less than 201 but more than five plants.

Conclusion

[14] It is not disputed that the constitutional challenge brought by the defence has now been rendered moot by the Crown’s decision not to rely on the notice provision of the CDSA. I am satisfied that this is not one of those rare cases where the court ought to consider the issue, contrary to general principles about issues rendered moot. I say so for three reasons:

(i) The decision of Durno J. in Vu provides a thorough and thoughtful analysis of the constitutionality of the section. That decision is currently under appeal. Appellate review will provide a better forum for the constitutional challenge and ultimately may provide guidance for sentencing judges with respect to the constitutionality of this section.

(ii) I am not satisfied by the defence argument that this section creates an inflationary floor for sentencing judges. I will discuss this issue further in the sentencing decision that follows.

(iii) The hearing of such an application would require an undue consumption of judicial resources.

[15] The defence application is dismissed.

Delivered orally on June 16, 2016

NOTE: This ruling, as delivered orally, is to be considered the official version and takes precedence over these written reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the oral version that is the official record to be relied upon.