COURT FILE NO.: CR-15-724 DATE: 2016 06 30
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – DANIEL ANTWI Applicant
J. Goulin for the Crown M. Wyszomierska, for the Applicant, Daniel Antwi
HEARD: March 22, 2016
REASONS Re: Constitutionality of s. 85(4) Criminal Code of Canada
Fragomeni J.
Nature of the Application
[1] The Applicant seeks a determination of whether the requirement of consecutive sentences for using a firearm in the course of committing an indictable offence under section 85(4) of the Criminal Code violates the prohibition against cruel and unusual punishment guaranteed by section 12 of the Charter of Rights and Freedoms.
[2] The Applicant sets out that by virtue of section 85(4) the Applicant faces three consecutive one-year mandatory minimum sentences for the offences before this court. The Applicant has already been convicted and sentenced to six years in a penitentiary for charges arising out of the same investigation.
[3] Since section 85(4) mandates that the three consecutive one-year mandatory minimum sentences be served consecutive to that six year sentence, the Applicant asserts that in light of the Applicant’s particular circumstances such a sentence constitutes cruel and unusual punishment, not only for the Applicant but for a reasonable hypothetical offender. The Applicant submits that section 1 of the Charter cannot save this violation.
Summary of the Facts
[4] The Applicant and the Respondent Crown have adequately set out the summary of the facts in their respective factums, and it is useful to review those in these reasons.
[5] On April 24, 2013 the Applicant was charged with several bank robberies, an attempt robbery on a Garda Truck, and other related charges. All of the charges arose out of the same investigation (and series of events).
[6] A severance application was granted and the attempt robbery and related charges proceeded to trial first. The Applicant was convicted and sentenced to 6 years for these offences. The Applicant is currently serving this sentence.
[7] The Applicant’s bank robbery offences were tried before this court. The Applicant was found guilty and is currently awaiting his sentencing. As the Applicant used an imitation firearm during each of the three robberies, the Applicant is subject to a one-year mandatory minimum sentence for each robbery pursuant to section 85(3) of the Code.
[8] The offences that are the subject of this application were part of the same investigation, but occurred on separate dates as follows:
a. The robbery of the Toronto Dominion Canada Trust (“TD”) Bank in Oakville was on August 7, 2012; b. The robbery of the TD Bank in Hamilton was on October 16, 2012; c. The robbery of the TD Bank in Waterloo was on November 1, 2012; d. The conspiracy to rob the armoured truck took place over almost a month, culminating in the arrest of the Applicant and his co-accuseds on the evening of April 23, 2013 with the three firearms already mentioned found in their possession.
[9] The Applicant was observed to be ‘casing’ the banks in Waterloo and Hamilton approximately a week prior to each robbery.
[10] The Applicant rented a vehicle from Hertz each time a robbery was committed.
[11] “Casing” notes were found in the Applicant’s condominium when police executed a search warrant thereafter arresting him for a conspiracy to rob the armoured car. These notes contained a number of addresses associated to other TD banks and had both of the Oakville and Hamilton locations crossed off.
[12] The Applicant had no job at the time of the offences and owned a Mercedes, a Cadillac, a condominium and had approximately $40,000.00 CDN (in cash) at his storage locker and $15,000.00 CDN (in cash) at his condominium. The Applicant stole approximately $600,000.00 (in Canadian and U.S. funds) in total from the three bank robberies. The primary motive, and only observable one, for these offences was greed.
[13] The Applicant was 27 years old at the time of offences and has been in custody since his arrest. Prior to his arrest the Applicant had a minor criminal record. In light of his relatively young age, rehabilitation is still within the Applicant’s reach. Briefly, as background, the Applicant left his family and came to Canada in 1998 from Ghana. In Canada, however, his family members neither had nor wanted to use their resources to care for the Applicant. As such, the Applicant had a difficult upbringing.
Position of the Applicant
[14] The Applicant points to the following factors to support his position:
- the requirement of consecutive sentences under section 85(4) results in a grossly disproportionate sentence, not only for the Applicant but also for reasonable hypothetical offenders
- the three consecutive one-year mandatory minimum sentences must be served consecutively to the 6 year sentence the Applicant is already serving. This stacking effect is not constitutional and fails to meet the principle of totality. Such a sentence is grossly disproportionate.
[15] The Applicant submits that the stacking effect would give rise to grossly disproportionate sentences in reasonable hypothetical circumstances. In oral argument the following hypothetical situation was put to the court:
- young native girl tormented by 6 other school mates
- she takes a replica firearm to threaten her school mates. She waves it around and tells them to get out of here or I’ll kill you
- the neighbours call the police
- the young native girl makes a full confession
- she is charged with 6 counts of threatening death and 6 counts pursuant to s. 85(2) of the Code.
[16] The stacking effect of the mandatory one-year consecutive sentences would result in a 6 year sentence. Such a sentence, the Applicant argues, would shock the community. This approach is unconstitutional. Any discretion on the part of the Crown not to proceed on all 6 counts cannot override a constitutional infringement.
[17] In his Factum, the Applicant puts forward the following reasonable hypothetical to illustrate how section 85(4) would result in a grossly disproportionate sentence:
An 18-year old female with no criminal record with a low IQ is drawn into a cult. The cult members commit robberies to fund their activities. The female acts as a lookout on two occasions while her fellow members rob a grocery store. On one occasion one of the robbers is armed with an imitation firearm while in the second she uses a real firearm. On both occasions, the grocery store clerk is locked in the closet during the robbery. The female never leaves the car during the robberies and has no contact with the firearms or the victims. The cult members are eventually caught and arrested. The female is charged and convicted of two counts of robbery (s. 344(1)(b), one count of robbery with firearm (s. 344(1)(a.1) which carries with it a mandatory minimum sentence of four years), two counts of forcible confinement (s. 279(2), one count of use imitation firearm while committing the offence of forcible confinement (s. 85(2), which carries with it a one-year mandatory minimum sentence to be served consecutively) and one count of use firearm while committing the offence of forcible confinement (s. 85(1), which carries with it a one year mandatory minimum sentence to be served consecutively).
[18] In this scenario the female hypothetical offender would net a sentence of six years, all to be served consecutively by virtue of section 85(4). The Applicant submits that a six–year sentence for this first time offender is grossly disproportionate and as such violates s. 12 of the Charter.
Position of the Crown
[19] The Crown submits that the Applicant’s argument relating to the stacking effect is not a reasonable approach to resolving the issue.
[20] In the case before this court the totality principle would apply to the charges before the court relative to the separate transactions and it is important to keep that in mind when considering the stacking effect put forward by the Applicant.
[21] More importantly, the Crown submits that I do not have to determine the issue of constitutionality. The Crown refers the court to the decision of Justice Doherty in R. v. R.K., 2005 ONCA 736, [2005] O.J. No. 2434 at para. 59:
It has been repeatedly held that courts should not decide issues of law, particularly constitutional issues, that are not necessary to the resolution of the matter before the court: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 SCC 86, [1995] 2 S.C.R. 97 at paras. 5-11. As outlined earlier, the trial judge made it clear that regardless of whether s. 85(4) was constitutional or not, he would have imposed exactly the same sentence – a suspended sentence followed by probation. As the disposition the trial judge deemed appropriate was unaffected by the constitutionality of s. 85(4), it was wrong for the trial judge to decide the constitutionality of the section. By introducing the constitutional issue, the trial judge added to the complexity, cost and length of the trial proceedings and provoked an entirely meritorious appeal by the Crown. Had the trial judge not addressed the constitutional issue and simply determined, as he was required to do, a fit sentence, R.K. could have been sentenced a month earlier. Presumably, had the trial judge sentenced him a month earlier, he would still have imposed a sentence of time served given the trial judge’s strong views of the conditions of R.K.’s pre-trial incarceration. R.K. spent an extra month in the terrible conditions at the Don Jail because the trial judge raised and pursued a constitutional issue that had no effect on the sentence he ultimately would have imposed.
[22] The Crown submits that with respect to Antwi, the three years consecutive to the sentence already being served is not outside the range.
[23] The Crown submits further that the mandatory minimum is constitutionally valid and is an expression of Parliament’s will to ensure the safety of its citizens from an inherently dangerous object.
[24] The Crown argues that the gross disproportionality test is a high standard and means more than excessive or unfit.
[25] The Crown sets out the following at para. 22 of its Factum as it relates to Mr. Antwi:
With respect to Daniel Antwi, it is respectfully submitted that an appropriate sentence (in addition to the 6 years he is currently serving for a separate offence) is an additional 9 years, subject to a reduction of 3 years, based on the principle of totality, resulting in total of 12 years. Mr. Antwi went on a 9 month crime spree of highly organized, sophisticated, violent and successful robberies against TD banks and their employees. This culminated in an attempted robbery of an armoured car where Mr. Antwi and his co-accused were equipped with sufficient firearms to outnumber and outgun two armed guards. The financial effects of the robberies are undisputed and the emotional effects on the victims were palpable during their testimony. Such a sentence is proportionate to the present offender’s circumstances.
[26] With respect to the reasonable hypothetical set out in the Applicant’s Factum, the Crown points out that it involves a conviction for “use imitation firearm while committing forcible confinement” and under those circumstances the court would be entitled to and should stay those counts under the Kienapple principle.
Analysis and Conclusion
[27] After submissions were received by the court on March 22, 2016, the Supreme Court of Canada released its decision in R. v. Lloyd, 2016 SCC 13. When this matter returned to court on May 18, 2016, I invited counsel to make further submissions relating to the issue of the constitutionality of section 85(4) of the Criminal Code and whether it is necessary for me to determine the issue in this case.
[28] In Lloyd, McLachlin C.J. sets out the following:
[14] The provincial court judge, having found that the mandatory minimum sentence at issue would affect Mr. Lloyd’s sentence only if it raised the floor of the appropriate range of sentences, proceeded to consider the law’s constitutionality and “declare” it unconstitutional. The Court of Appeal set aside this declaration and declined to consider the question on the ground that the challenged law does not raise the threshold of the sentencing range and thus could not have affected Mr. Lloyd’s sentence. The Crown asks us to confirm that provincial courts cannot make declarations of constitutional invalidity and should rule on the constitutionality of a mandatory minimum sentence only if it would have an impact on the offender before them.
[15] The law on this matter is clear. Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them. As this Court stated in R. v. Big M Drug Mart Ltd., 1985 SCC 69, [1985] 1 S.C.R. 295, at p. 316, “it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.” See also Cuddy Chicks Ltd v. Ontario (Labour Relations Board), 1991 SCC 57, [1991] 2 S.C.R. 5, at pp. 14-17; Douglas/Kwantlen Faculty Assn v. Douglas College, 1990 SCC 63, [1990] 3 S.C.R. 570, at p. 592; Re Shewchuk and Ricard (1986), 1986 BCCA 174, 28 D.L.R. (4th) 429 (B.C.C.A.), at pp. 439-40; K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at p. 6-25.
[16] Just as no one may be convicted of an offence under an invalid statute, so too may no one be sentenced under an invalid statute. Provincial court judges must have the power to determine the constitutional validity of mandatory minimum provisions when the issue arises in a case they are hearing. This power flows directly from their statutory power to decide the cases before them. The rule of law demands no less.
[17] In my view, the provincial court judge in this case did no more than this. Mr. Lloyd challenged the mandatory minimum that formed part of the sentencing regime that applied to him. As the Court of Appeal found, he was entitled to do so. The provincial court judge was entitled to consider the constitutionality of the mandatory minimum provision. He ultimately concluded that the mandatory minimum sentence was not grossly disproportionate as to Mr. Lloyd. The fact that he used the word “declare” does not convert his conclusion to a formal declaration that the law is of no force or effect under s. 52(1) of the Constitution Act, 1982.
[18] To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process.
[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.
[20] I conclude that the provincial court judge in this case had the power to consider the constitutional validity of the challenged sentencing provision in the course of making his decision on the case before him.
[29] In R.K., Justice Doherty stated clearly “that courts should not decide issues of law, particularly constitutional issues, that are not necessary for the resolution of the matter before the court…” (para. 59)
[30] In R. v. Meszaros, 2013 ONCA 682, R. A. Blair J.A. sets out the following at para. 80:
Section 85, and its predecessor s. 83, have survived a number of constitutional attacks, although one has focussed specifically on the identical issue we face here – the constitutionality of the mandatory one-year minimum sentence imposed by s. 85(3)(a). The Supreme Court of Canada upheld the validity of the overall licensing and registration provisions of the Firearms Act, S.C. 1995, c. 39, in Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783. In three cases, the s. 85(4) requirement (previously the s. 83(2) requirement that the mandatory minimum sentence be served consecutively to the sentence imposed for the underlying offence has been held not to violate s. 12 of the Charter: see R. v. Brown, 1994 SCC 29, [1994] 3 S.C.R. 749; R. v. Spark, [1986] O.J. No. 1001 (C.A.); R. v. Wheatle, [1993] O.J. No. 2747 (C.A.); and R.K..
[31] The Applicant submits that it is necessary for me to decide the issue of constitutionality as it is relevant to the positions of the parties at the sentencing hearing. In support of that proposition the Applicant refers to the decision in R. v. Delchev, 2014 ONCA 439, [2014] O.J. No. 2769. At paras 18 to 19 K.N. Feldman, JA sets out the following:
[18] I do not agree with the Crown’s submission that one can ignore the effect of the (now-invalidated) three-year mandatory minimum sentence requirements when considering the range of sentence that is derived from sentences imposed based on those minimums. Several decisions – including many of the decisions which the Crown put before the trial judge – have explicitly recognized that mandatory minimums have the effect of creating an “inflationary floor” that set a new minimum punishment applicable to the “best” offender….
[19] The effect of the inflationary floor is that because the “best offender” must receive the minimum sentence, which may be a higher sentence higher than the one that would have been given without the minimum, the sentences for more culpable offenders are increased as well, so that the whole range increases. The cases referred to above all reflect that effect. Given that the mandatory minimums have been ruled unconstitutional by this court, the trial judge did not err if she gave diminished weight to sentences imposed following the imposition of the mandatory minimum when determining what would be a fit sentence.
[32] Further, in dealing with whether the mandatory minimum sentence in Lloyd was unconstitutional, Justice McLachlin stated the following at paras. 22 to 24, and 27:
[22] The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charter was recently clarified by this Court in Nur. A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, 1987 SCC 64, [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77.
[23] A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriate sentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, 1991 SCC 51, [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, 1987 SCC 25, [1987] 2 S.C.R. 309, at pp. 337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.
[24] This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, 1976 SCC 12, [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.
[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.…
[33] At para. 35 Justice McLachlin states:
[35] As I have already said, in light of Nur, the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.
[34] The Applicant’s position on sentence is that the appropriate range of sentence is eight and a half to nine years concurrent to the six years the Applicant is presently serving. This sentence would, therefore, add two and a half to three years more to the sentence the Applicant is presently serving.
[35] The Crown’s position on sentence is that the Applicant ought to be imprisoned for another 15 years but reduced to 12 years, considering the totality principle. On that basis, 12 years concurrent to the 6 years is an additional 6 years, twice that proposed by the Applicant.
[36] The Applicant argues that the Crown’s position on sentence and her ability to make submissions for her proposed range is dependent on whether the section is constitutional.
[37] Further, if section 85(4) is declared to be unconstitutional it is of significant assistance to the Applicant with respect to his position on sentence and that any sentence imposed be concurrent. The three year minimum consecutive stacking would not be in play.
[38] I have considered these submissions carefully and I am satisfied that it is necessary for me to decide the constitutional issue before I can proceed with the full sentencing hearing. I am satisfied it is relevant to the sentencing hearing that I do so.
Section 85 Criminal Code of Canada
[39] Section 85(1) and (2) states:
85 (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,
(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm — recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion);
(b) while attempting to commit an indictable offence; or
(c) during flight after committing or attempting to commit an indictable offence.
85 (2) Every person commits an offence who uses an imitation firearm
(a) while committing an indictable offence,
(b) while attempting to commit an indictable offence, or
(c) during flight after committing or attempting to commit an indictable offence,
whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.
[40] Section 85(3) deals with punishment as follows:
85 (3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable
(a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to a minimum punishment of imprisonment for a term of one year; and
(b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.
(c) [Repealed, 2008, c. 6, s. 3]
[41] Finally, Section 85(4) sets out the following:
(4) A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).
R.S., 1985, c. C-46, s. 85; 1995, c. 39, s. 139; 2003, c. 8, s. 3; 2008, c. 6, s. 3; 2009, c. 22, s. 3.
[42] In R. v. Meszaros, 2013 ONCA 682, the Court held that the one year mandatory minimum for use of a firearm does not violate section 12 of the Charter. The court also held that section 85(4) was constitutionally valid. However, Meszaros was decided prior to the release of Nur and Lloyd.
[43] The approach in Nur and Lloyd has now set out the framework and analysis that must be followed when a court considers a section 12 challenge.
[44] The Court of Appeal for British Columbia in a decision released April 25, 2016, following the Supreme Court of Canada’s in Lloyd, applied Nur and struck down two-year minimum sentences imposed for drug offences near a public place frequented by persons under 18 or where the offender used the services of such a person. In R. v. Dickey, 2016 BCCA 177, the court set out the following at para. 14:
[14] The Supreme Court of Canada’s consideration of what constitutes cruel and unusual punishment stems from R. v. Smith, 1987 SCC 64, [1987] 1 S.C.R. 1045, where a minimum seven-year term of imprisonment in legislation prohibiting the importation of narcotics was held to be unconstitutional as infringing s. 12 such as could not be justified under s. 1 of the Charter. At the time these three appeals were heard, it culminated with the analysis found in R. v. Nur, 2015 SCC 15, where a minimum three-year prison sentence for a firearms violation, that would be applicable to what was said to effectively amount to a licensing infraction, was held to infringe s. 12. The Court has now rendered judgment in R. v. Lloyd, 2016 SCC 13, wherein s. 5(3)(a)(i)(D) of the Act was found to infringe s. 12. Based largely on the analysis in Nur, it was determined that the provision for a minimum one-year sentence for trafficking, or for possession for the purpose of trafficking, where the offender had been convicted of a controlled substance offence within the preceding ten years, could constitute cruel and unusual punishment. The Court has rejected all of the other challenges to minimum sentences it has considered: R. v. Luxton, 1990 SCC 83, [1990] 2 S.C.R. 711; R. v. Goltz, 1991 SCC 51, [1991] 3 S.C.R. 485; R. v. Brown, 1994 SCC 29, [1994] 3 S.C.R. 749; R. v. Morrisey, 2000 SCC 39; R. v. Latimer, 2001 SCC 1; and R. v. Ferguson, 2008 SCC 6.
[45] At paras. 22, 23 and 27, the court noted the following:
[22] Much of the discussion in Nur was concerned with the extent to which hypothetical circumstances might be considered in instances where the prescribed minimum sentence for the offender before the court could not be said to be grossly disproportionate in the circumstances. The Chief Justice concluded her analysis in this regard as follows:
[77] In summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications will impose grossly disproportionate sentences on others. This is consistent with the settled jurisprudence on constitutional review and rules of constitutional interpretation, which seek to determine the potential reach of a law; is workable; and provides sufficient certainty.
[23] The analysis led to the question of whether the minimum sentence being considered would result in grossly disproportionate sentences in reasonably foreseeable cases. The Chief Justice concluded that it would, given the minimal blameworthiness of the offender in the hypotheticals considered and the absence of any harm or real risk of harm caused by the commission of the offence. The sentence was seen to be applicable to licensing offences involving little or no moral fault or danger to the public.
[27] It follows that, in considering whether the minimum two-year prison sentence for which s. 5(3)(a)(ii)(A) and (C) of the Act provide infringes s. 12 as being cruel and unusual punishment, it is necessary to determine whether in each instance the sentence is a punishment that is grossly disproportionate to the proportional sentence that is appropriate for the offender, or a reasonably foreseeable hypothetical offender. This entails a two-step process: first, an appropriate sentence must be determined having regard for the objectives and principles of sentencing provided in the Criminal Code; and then, it must be determined whether the minimum prison sentence requires the imposition of a sentence that is not merely excessive, but grossly disproportionate to the appropriate sentence. If it does, the punishment infringes s. 12 and the sentence cannot be imposed unless demonstrably justified under s. 1.
[46] Finally, at para. 68 the court concluded:
[68] The imposition of a two-year prison sentence in a federal penitentiary would not only be a disproportionate punishment, but one that would be grossly so if imposed on Dickey (and more so on a younger hypothetical offender) when compared to an appropriate sentence. In determining whether a minimum sentence is grossly disproportionate, the comparison of the appropriate sentence and the statutory minimum sentence to be imposed would seem to always be the first consideration, as it was in Nur. There are contextual factors to consider that may have a bearing on the determination in any given instance, but there would appear to be none that would render a minimum two-year prison sentence for Dickey other than grossly disproportionate. As the judge concluded, it does infringe s. 12 of the Charter.
[47] At paragraph 8 of his Factum, the Applicant identifies the issue before the court as follows:
The issue before this Court is whether the requirement of consecutive sentences for Using a Firearm in the Course of Committing an Indictable Offence under section 85(4) of the Criminal Code violates section 12 of the Charter.
[48] I am satisfied that section 85(4) is unconstitutional and cannot be saved pursuant to section 1 of the Charter. The issue before me at this application related solely to the constitutional validity of section 85(4). The essence of the Applicant’s position related to the stacking effect of consecutive one year sentences and in doing so would result in grossly disproportionate sentences, not only for the Applicant but also for reasonable hypothetical offenders.
[49] The Applicant did not seek relief declaring Section 85(3) unconstitutional and in accordance with the principles set out in Lloyd it is my view that it is not necessary for me to consider the constitutionality of this minimum mandatory sentence. Now that I have determined that section 85(4) is invalid and it is open for the defence to argue for a concurrent sentence on the firearms convictions it is not necessary for me to determine the validity of section 85(3). It is also open to the Crown to argue that the sentences relating to section 85(3) be served consecutively even in the absence of section 85(4).
[50] I am satisfied that I can deal solely with the constitutionality of section 85(4) without having to deal with section 85(3). The issue of severability was dealt with by Durno, J. in R. v. Vu, 2015 ONSC 7965. Justice Durno deals with the law on severance at paras. 6 to 17 as follows:
[6] Counsel agree that the leading authority on determining whether to sever an unconstitutional statutory provision instead of striking down the entire section is Schachter v. Canada, 1992 SCC 74, [1992] 2 S.C.R. 679, [1992] S.C.J. No. 68 [Cited to QL]. In summary, the judgment holds that laws have always been struck down only to the extent of the inconsistency using the doctrine of severance or ‘reading down’ (at para. 26). Severance is used “so as to interfere with the laws adopted by the legislature as little as possible” (at para. 26). When only part of the legislation violates the Constitution, “only the offending portion should be declared to be of no force or effect, and the rest should be spared” (at para. 26). In that way, it allows as much of the legislative purpose as possible to be realized (at para. 29). When only a portion of a statute violates the Constitution, it is common sense that the offending portion should be declared of no force or effect and the rest spared (at para. 26).
[7] Notwithstanding those findings, there will be cases where “to sever the offending portion would actually be more intrusive to the legislative purpose than the alternate course of striking down provisions which are not themselves offensive but which are closely connected with those that are” (at para. 29, emphasis added). However, to refuse to sever the offending parts and thereby declare inoperative parts of the legislation which do not violate the Constitution “is surely a more difficult course to justify” (at para. 27).
[8] Lamer C.J. noted that while in some cases it would be prudent to assume Parliament would have passed the constitutional provisions without the unconstitutional ones, that was not always the case. There will be cases where “it will be necessary to go further and declare the inoperative portions of the legislation which are not themselves unsound” (at para. 30).
[9] The Chief Justice noted:
31 Therefore, the doctrine of severance requires that a court define carefully the extent of the inconsistency between the statute in question and the requirements of the Constitution, and then declare inoperative (a) the inconsistent portion, and (b) such part of the remainder of which it cannot be safely assumed that the legislature would have enacted it without the inconsistent portion.
[10] Lamer C.J. created an analytical framework to be considered when determining severance issues. First, the Court must define the extent of the inconsistency as follows at para. 85:
A. broadly where the legislation in question fails the first branch of the Oakes test in that its purpose is held not to be sufficiently pressing or substantial to justify infringing a Charter right or, indeed, if the purpose is itself held to be unconstitutional -- perhaps the legislation in its entirety;
B. more narrowly where the purpose is held to be sufficiently pressing and substantial, but the legislation fails the first element of the proportionality branch of the Oakes test in that the means used to achieve that purpose are held not to be rationally connected to it -- generally limited to the particular portion which fails the rational connection test; or,
C. flexibly where the legislation fails the second or third element of the proportionality branch of the Oakes test.
[11] Second, severance or reading in will be warranted only in the clearest of cases, where each of the following criteria is met:
A. the legislative objective is obvious, or it is revealed through the evidence offered pursuant to the failed s. 1 argument, and severance or reading in would further that objective, or constitute a lesser interference with that objective than would striking down;
B. the choice of means used by the legislature to further that objective is not so unequivocal that severance/reading in would constitute an unacceptable intrusion into the legislative domain; and,
C. severance or reading in would not involve an intrusion into legislative budgetary decisions so substantial as to change the nature of the legislative scheme in question.
[12] The Supreme Court of Canada has expressed the test in similar ways in several cases. In R. v. Wholesale Travel Group Inc., 1991 SCC 39, [1991] 3 S.C.R. 154, at p. 207, it was whether a portion of the provision could be struck down without defeating the “unitary scheme” envisaged by Parliament.
[13] In R. v. Morales, 1992 SCC 53, [1992] 3 S.C.R. 711, at pp. 741-43, the Court found the public interest component of s. 515(10)(b), the secondary grounds for pre-trial detention, constitutionally invalid while the public safety element was constitutionally valid. Lamer C.J. found that if the terms were disjunctive, it would not interfere with the unitary scheme to strike down only one of the terms. Relying on Rocket v. Royal College of Dental Surgeons of Ontario, 1990 SCC 121, [1990] 2 S.C.R. 232, at p. 252, the Chief Justice examined whether severance would permit the balance of the provision to “stand as a functioning whole” and whether severance would require the court to add anything to what remained to create a viable provision. In such cases, to remove the entire section would result in a constitutionally valid provision being removed which Parliament has decided should be part of the legislation.
[14] In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, when part of the tertiary ground for detention in the bail provisions was found to violate the Charter, the test applied was whether after the offending portion was removed the remainder was “capable of standing alone without doing damage to Parliament’s intention” (at para. 44).
[15] Schachter cited with approval the following test from Attorney General for Alberta v. Attorney General for Canada, [1947] A.C. 503, at p. 518, where the Judicial Committee of the Privy Council held:
The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all. (Emphasis added)
[16] Finally, in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 51, the Supreme Court noted:
When a court opts for severance or reading in as an alternative to striking down a provision, it does so on the assumption that had Parliament been aware of the provision's constitutional defect, it would likely have passed it with the alterations now being made by the court by means of severance or reading in. For instance, as this Court noted in Schachter, the test for severance "recognizes that the seemingly laudable purpose of retaining the parts of the legislative scheme which do not offend the Constitution rests on an assumption that the legislature would have passed the constitutionally sound part of the scheme without the unsound part" (p. 697). If it is not clear that Parliament would have passed the scheme with the modifications being considered by the court -- or if it is probable that Parliament would not have passed the scheme with these modifications -- then for the court to make these modifications would represent an inappropriate intrusion into the legislative sphere. In such cases, the least intrusive remedy is to strike down the constitutionally defective legislation under s. 52. It is then left up to Parliament to decide what legislative response, if any, is appropriate.
[17] Whether provisions are “inextricably bound up” has been addressed by the Supreme Court of Canada in different contexts. Fishing license conditions in British Columbia legislation were so inextricably linked together with the license itself that the two could not be considered separately. The license itself was bound up with compliance with unconstitutional conditions: R. v. Nikal, 1996 SCC 245, [1996] 1 S.C.R. 1013, at para. 113. Where cross-referencing existed between the impugned section of the Abolition of Early Parole Act and the remainder of the legislative scheme, removal of the offending section would have rendered other sections meaningless and severance was not ordered: Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392.
In accordance with this informative and thorough review of the relevant legal principles relating to severance, I am satisfied that it is not necessary to deal with the constitutionality of section 85(3).
[51] For all of these reasons, therefore, the Applicant’s application for a declaration that section 85(4) of the Criminal Code violates section 12 of the Charter is granted. Section 85(4) of the Criminal Code is, therefore, invalid and unconstitutional.