Court File and Parties

COURT FILE NO.: CJ 8547 DATE: 2017/01/03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. SCOTT MASON

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Stephanie Marple, for the Crown/Respondent Eric Uhlmann, for the Defendant/Applicant

HEARD: December 7, 2016

Endorsement

Background

[1] The applicant was found guilty by a jury on March 21, 2016 of one count of theft over $5,000. The offence occurred when the applicant was working for CC Vending Services (the “employer”) from June to August 2014 as a temporary route driver. The evidence at trial was that the applicant was solely responsible for stocking vending machines on his route, including ordering product, cleaning the machines, taking out the money being the proceeds of sale of product from the machines, and replenishing the coin mechanisms which dispensed change to customers. The jury found that over the course of the applicant’s temporary employment he stole money from the cash receipts which he retrieved from the employer’s vending machines.

[2] The total loss to the employer ranged between $19,887.05 to $21,637.05. The latter figure represents the shortages in the cash receipts from the vending machines on the applicant’s route during the charge period as calculated by the employer. The former figure represents the calculated cash shortage less 3%, being the employer’s maximum tolerated or expected margin of deviation on cash receipts from its vending machines based upon its experience.

[3] The applicant has no prior criminal record.

[4] During the applicant’s sentencing hearing on August 8, 2016 Crown (respondent on this application) suggested that an appropriate sentence would include six to nine months incarceration, a restitution order, a period of probation and a DNA order.

[5] Following the completion of the Crown’s submissions on sentence the applicant requested an adjournment, which was consented to by the Crown, to permit him to bring an application pursuant to s. 52 of the Constitution Act, 1982 for a declaration of invalidity in respect of s. 742.1(f)(viii) of the Criminal Code which makes conditional sentences unavailable following a conviction of theft over $5,000.

[6] A Notice of Constitutional Question was served by the applicant on each of the Attorney-General of Canada and the Attorney-General of Ontario. At the commencement of the hearing on December 7, 2016 Ms. Marple, of the local Provincial Crown’s office, advised that she had been delegated to respond to the application on behalf of both the Federal Attorney-General and Provincial Attorney-General.

[7] In his Notice of Application and Constitutional Issue the applicant sought an order that s. 742.1(f)(viii) (the “impugned provision”) is inconsistent with the Constitution of Canada and is therefore of no force and effect. The stated grounds were that, by prohibiting the imposition of a conditional sentence following a conviction of theft over $5,000, the impugned provision is arbitrary contrary to s. 7 of the Canadian Charter of Rights and Freedoms, or in the alternative, is overbroad as part of the broader legislative scheme of the Safe Streets and Communities Act, S.C. 2012, c. 1, contrary to s. 7 of the Charter. The grounds also stated that the Charter-infringing provisions cannot be demonstrably justified pursuant to s. 1 of the Charter.

[8] Although the stated grounds in respect of the alleged invalidity of the impugned provision in the Notice of Application and Constitutional Issue were restricted to s. 7, the “constitutional issues to be raised” included whether the impugned provision is contrary to ss. 7 and/or 12 of the Charter. It is noted, however, that in his Factum and in submissions the applicant abandoned any reliance upon s. 12 of the Charter.

Preliminary Issue re Mootness

[9] At the commencement of submissions I raised with counsel the question of whether, as a preliminary step prior to embarking on a consideration of the application, I should make a determination of whether a conditional sentence would otherwise be appropriate in the particular circumstances of the offence and the offender in this case, apart from the impugned provision.

[10] The respondent took the position that the court should not hear submissions on the constitutional question unless it were satisfied that, but for the impugned provision, a conditional sentence would be an appropriate disposition, as otherwise the constitutional question would be moot and need not be considered.

[11] The applicant argued that, the application having been brought and the impugned provision being at issue in his case, it is incumbent upon the court to make a determination on the constitutional question, without first making a determination that a conditional sentence would otherwise be applicable in his case. The applicant analogized the situation to recent cases under s. 12 of the Charter, as exemplified by the case of R. v. Nur, [2015] 1 S.C.R. 773 (S.C.C.), where court struck down as unconstitutional certain mandatory minimum sentence provisions but upheld the imposed sentences of the particular offenders.

[12] At the conclusion of the argument I reserved my decision on this preliminary issue. However, for the reasons set forth below, since I have determined that the impugned provision s. 742.1(f)(viii) does not offend s. 7 of the Charter it is not necessary for me to decide it.

[13] The history of the conditional sentence regime was very usefully set out in the respondent’s Factum. The history of, and the principles applicable to, the conditional sentence regime prior to the most recent amendments introduced by the Safe Streets and Communities Act in 2012 were also usefully considered in R. v. Perry 2013 QCCA 212 (Que. C.A.) at paras. 52-70.

[14] Conditional sentences were first introduced in Canada in September 1996 as part of comprehensive sentence reforms in Bill C-41. Initially no specific offence was excluded from the conditional sentencing regime and accordingly, a conditional sentence was available provided: (1) the offence was not punishable by a minimum term of imprisonment; (2) the court imposed a sentence of imprisonment of less than two years; and (3) serving the sentence and the community would not endanger the safety of the community. In 1997 Parliament passed Bill C-17 which amended s. 742.1 to further require that a conditional sentence be consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code.

[15] The Supreme Court of Canada first considered the conditional sentence provisions in the seminal case of R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. At para. 21 of Proulx C.J. Lamer, speaking for the unanimous Court, noted that “the conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders.”

[16] At para. 46 the Chief Justice made reference to the four criteria set forth in s. 742.1 of the Code, noting that the first three criteria (namely that the offence was not be punishable by a minimum term of imprisonment, the court must impose a term of less than two years, and the safety of the community would not be endangered) are prerequisites to any conditional sentence, and stated that once they are met, the question is whether a conditional sentence is appropriate based upon a consideration of the fundamental purposes and principles of sentencing at ss. 718 to 718.2 of the Code.

[17] The Supreme Court recognized that a conditional sentence may not be available, even if the first three criteria are met, upon a consideration of the fundamental purposes and principles of sentencing as set forth at ss. 718 to 718.2 of the Code. In particular, Chief Justice Lamer stated at para. 127 (8) that “there may be some circumstances…where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future.”

[18] Section 742.1 of the Code was amended in 2007 to remove the availability of conditional sentences upon conviction for certain categories of offences, including “serious personal injury offences” as defined in s. 752 of the Code.

[19] Additional amendments took effect in 2012 under the Safe Streets and Communities Act which expressly prohibited the use of conditional sentences for certain offences, including theft over $5000.

[20] The material filed on the application, and referred to by each of the parties in their respective Factums, included extensive excerpts from parliamentary debates regarding the Safe Streets and Communities Act.

[21] The applicant, in submissions, agreed with the respondent’s characterization of the primary objective of the impugned provision, namely to emphasize denunciation and deterrence in sentencing offenders for theft over $5000. The respondent went beyond this to point to a secondary objective, namely, to address a perceived erosion in confidence among the Canadian public respecting the manner in which the conditional sentencing regime was being administered by the courts in relation to what the public would regard as serious offences.

Application of s. 7 of the Charter

[22] Section 7 of the Charter provides as follows:

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.

[23] The respondent does not dispute that the impugned provision engages the applicant’s right to liberty, as well as any other individual who may be subject to it, as the restriction placed upon conditional sentences for the offence of theft over $5000 carries with it the risk of incarceration in an institution.

[24] In the case of R. v. Bedford, [2013] 3 S.C.R. 1102 Chief Justice McLachlin, writing for the unanimous court, reaffirmed, at para. 96, that the principles of fundamental justice are about the basic values underpinning Canada’s constitutional order. The analysis under s. 7 is concerned with capturing inherently bad laws, being laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values. She noted that over the years the jurisprudence has given shape to the content of these basic values, which include the basic values against arbitrariness, overbreadth, and gross disproportionality. It is noted, although not relevant to the present case, that in the more recent case of R. v. Safarzadeh-Markhali 2016 SCC 14, [2016] S.C.J. No. 14 the Supreme Court stated that proportionality in the sentencing process is not a principle of fundamental justice under s. 7 of the Charter.

[25] The applicant in this case argues that the impugned provision, insofar as it removes the possibility of a conditional sentence upon conviction of theft over $5,000, is both overbroad and arbitrary. However, counsel for the applicant acknowledges that, given his acceptance of the respondent’s characterization of the objective of the impugned provision, namely to emphasize denunciation and deterrence in respect of the offense of theft over $5,000, the argument based upon overbreadth is the weaker of the two.

[26] Chief Justice McLachlin, at para. 101 of Bedford characterized “overbreadth” as a situation where the law goes too far and interferes with some conduct that bears no connection to its objective. The applicant argues that in the context of theft over $5,000 overbreadth could only mean that the same objective, namely the emphasis on denunciation and deterrence, should be achieved with less intrusive measures, and in particular, with the inclusion of a “safety-valve provision” which would allow for the application of a conditional sentence in exceptional circumstances where the sentencing judge considers it necessary.

[27] In my view, the impugned provision is not overbroad by interfering with some conduct which bears no connection to its objective of emphasising denunciation and deterrence. In situations where denunciation and deterrence are not sentencing objectives calling for emphasis, the availability of lesser sentences such as fines or conditional discharges, which were not taken away by the legislation, achieves the avoidance of inappropriate interference with conduct not connected to the objective. The impugned provision simply provides that in those cases where a period of incarceration is called for it will be served in an institution rather than in the community in order to respond to the need to emphasize denunciation and deterrence, given the seriousness of the offence. There was, in my view, no need for Parliament to provide a “safety-valve” by means of allowing conditional sentences in exceptional circumstances so as to avoid overbreadth.

[28] The Supreme Court of Canada in the case of Chaoulli v. Quebec (Attorney-General) 2005 SCC 35, [2005] S.C.J. No. 33 reaffirmed, at para. 130 that a law is arbitrary where it bears no relation to, or is inconsistent with, the objective that lies behind it. At para. 131 McLachlin, C.J., and Major and Bastarache JJ. stated that, in order not to be arbitrary, the limit on life, liberty and security requires not only a theoretical connection between the limit and the legislative goal, but a real connection on the facts. The question in every case is whether the measure is arbitrary in the sense of bearing no real relation to the goal and hence being manifestly unfair (see also Bedford at para. 98).

[29] The applicant argues that the impugned provision, by taking away the possibility of conditional sentences in cases of theft over $5,000, is inconsistent with the objective of emphasizing denunciation and deterrence, because conditional discharges and other lesser penalties, which do not emphasize these principles of sentencing, remain available upon conviction for the offence. He says that the sentencing regime which the impugned provision creates is inconsistent with the objective of emphasizing denunciation and deterrence in cases of theft over $5,000. He also argues that taking away the possibility of conditional sentences creates inconsistency with the objective of restitution, by ensuring, in the case of the applicant, that he will lose his job, rendering it impossible for him to abide by a restitution order.

[30] In my view, the impugned provision is not arbitrary in the sense of being inconsistent with its objective. It is observed that Parliament has drawn a distinction between theft over $5,000, which is an indictable offence, creating possible liability upon conviction to imprisonment for a term not exceeding ten years, and theft not exceeding $5,000 which can be either an indictable offence leading to imprisonment not exceeding two years or an offence punishable on summary conviction. In making this distinction Parliament has deemed theft over $5,000 to be a more serious property offence.

[31] Upon a conviction for theft over $5,000 a broad range of penalties remains available to a sentencing court, from discharges, fines, suspended sentences, intermittent sentences of imprisonment and probation to incarceration in an institution. The impugned provision does not take away the ability of a sentencing court to craft a fit and individualized sentence which appropriately balances the fundamental purposes and principles of sentencing at ss. 718 to 718.2 of the Code, short of a period of continuous incarceration in an institution. All that the impugned provision has done is to clarify that, where the circumstances of the offence and the offender are sufficiently serious to warrant a period of incarceration, it will be served in an institution, and not in the community, in order to recognize the importance of denunciation and deterrence for such a serious offence.

[32] It is important to note that, although Parliament has stated that in a circumstance where incarceration is necessary in order to achieve the objectives of sentencing it is to be in an institution and not in the community, it has not stated that in every case where the offence has been committed, incarceration is the only option.

[33] I do not accept that it was inconsistent for Parliament to leave conditional discharges as a sentencing option where conditional sentences have been eliminated because the principles of denunciation and deterrence have no relevance to conditional discharges. I agree with the respondent’s position that conditional discharges are not isolated or divorced from the principles of denunciation and deterrence. These principles may be upheld in a variety of ways and in some cases may be met by virtue of an offender’s involvement in the criminal justice process itself.

[34] Neither do I accept that the elimination of conditional discharges is inconsistent with the possibility of an effective restitution order. A sentence of incarceration may be ordered to be served intermittently in appropriate circumstances to permit an offender to maintain employment. A stand-alone restitution order remains a possibility in the case of a sentence of continuous incarceration.

[35] In my view the applicant has failed to show that the impugned provision contravenes s. 7 of the Charter. Although the provision engages s. 7 by affecting the applicant’s liberty rights, as well as the liberty rights of others who may be convicted of theft over $5,000, it does not do so in a way which offends the principles of fundamental justice. In particular the impugned provision is neither overbroad nor arbitrary.

[36] Given my finding that s. 7 has not been infringed, it is neither necessary nor appropriate for me to consider whether, if it had, such infringement would be justified in a free and democratic society under s. 1 of the Charter.

Disposition

[37] The application is therefore dismissed.

D. A. Broad, J. Date: January 3, 2017