R. v. Sarmales, 2017 ONSC 1869

Court File and Parties

Court File No.: 13-SA5015 Date: 2017/03/29 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Juan Diego Sarmales Accused

Counsel: Moiz Karimjee, for the Crown Ann London-Weinstein, for the Accused

Heard: February 15, 2017

Reasons for Decision

R. Smith J.

1The Crown seeks an order requiring the Defence to file and serve a Notice of Constitutional Question on the Attorney Generals of Canada and Ontario, to allow it to defend the constitutionality of the mandatory minimum jail sentence of one year for the offence of sexual interference under s. 151 of the Criminal Code, R.S.C., 1985, c. C-46.

2The Crown argues that the constitutionality of s. 151 remains “in question” until it is finally decided by the Ontario Court of Appeal for Ontario, and ultimately the Supreme Court of Canada. As a result, it argues that a declaration that the minimum sentence under s. 151 is unconstitutional by a Superior Court Judge is only persuasive, and the issue may be decided by another Superior Court Judge because the constitutionality of the section is still “in question” under s. 109 of the Courts of Justice Act, R.S.O. 1990, C. C.43 (“CJA”).

3The Defence initially indicated that it would be challenging the constitutionality of the mandatory minimum sentence imposed for convictions on this charge.

4However the Defence now relies on the decision R. v. M.(L.), 2016 ONSC 7082, where de Sousa J. held that the minimum sentence under s. 151 was unconstitutional and of no force and effect pursuant to s. 52(1) of the Constitution Act, Schedule B to the Canada Act 1982 (UK), 1982, c 11. As a result, the Defence has not served a Notice of Constitutional Question and wishes to proceed with the sentencing of the offender, as if there is no minimum sentence of one year in force.

5The Defence submits that the Crown has already had an opportunity to defend the constitutionality of the minimum sentence under s. 151 of the Criminal Code in the M.(L.) case. A Superior Court judge with inherent jurisdiction has issued a declaration under s. 52(1) of the Constitution Act that the minimum sentence under s. 151 is of no force and effect. As a result the Defence submits that the constitutionality of the minimum sentence under s. 151 has already been decided, and the Crown is bound by this decision.

Analysis

6Section 52(1) of the Constitution Act, 1982 states as follows:

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

7In her decision of R. v. M.(L.), de Sousa J., a judge of the Superior Court with inherent jurisdiction, declared that the minimum sentencing provision of s. 151 of the Criminal Code was unconstitutional and of no force and effect.

8At para. 92 of her decision de Sousa J. states as follows:

For these reasons the defence application is granted. The mandatory minimum sentences imposed by section 151 of the Code are declared of no force or effect under section 52 of the Constitution Act.

9In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at p. 353, the Supreme Court stated as follows:

If a court or tribunal finds any statute to be inconsistent with the Constitution, the overriding effect of the Constitution Act, 1982, s. 52(1), is to give the Court not only the power, but the duty, to regard the inconsistent statute, to the extent of the inconsistency, as being no longer "of force or effect".

10In the case of R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, the Supreme Court of Canada also discussed the effect of s. 52(1) at para. 65 and stated as follows:

The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case-by-case remedies: see Osborne, per Wilson J. In cases where the requirements for severance or reading in are met, it may be possible to remedy the inconsistency judicially instead of striking down the impugned legislation as a whole: Vriend; Sharpe. Where this is not possible -- as in the case of an unconstitutional mandatory minimum sentence -- the unconstitutional provision must be struck down. The ball is thrown back into Parliament's court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects. In either case, the remedy is a s. 52 remedy that renders the unconstitutional provision of no force or effect to the extent of its inconsistency. To the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void, and is effectively removed from the statute books.

11In this case, a Superior Court judge with inherent jurisdiction has declared that the minimum sentence under s. 151 of the Criminal Code is unconstitutional and of no force and effect. Following the reasoning of Ferguson, the minimum sentence provision under s. 151 of the Criminal Code is now null and void and is effectively removed from the statute books until such time as the M.(L.) decision is overturned by the Court of Appeal or the Supreme Court of Canada.

12I agree with the Crown’s enunciation of the principles of stare decisis, namely that a judge is not bound by a decision of another judge of the same court on the same issue. A decision by a judge of a court of concurrent jurisdiction is of persuasive value only. However, the need for judicial restraint is further heightened where a court of concurrent jurisdiction has declared legislation struck as per s. 52. Justice Strathy endorsed this view in R. v. Scarlett, 2013 ONSC 562 and at para. 43 summarized an applicable test from Hansard Spruce Mills, [1954] 4 D.L.R. 590 as follows:

[a] judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.

13A decision of the Ontario Court of Appeal however is binding on all courts below in Ontario, which includes the Superior Court.

14I also agree with the Crown’s submission that it would be an error of jurisdiction for a court to hear an application challenging the constitutional validity of an Act of the Parliament of Canada or the Legislature without giving notice of a constitutional question to the Attorney General of Canada and the Attorney General of Ontario as required by s. 109 of the CJA. However, there is no suggestion that a notice of constitutional question was not given to the Attorney Generals of Canada and of Ontario in the M.(L.) case.

15The issue to be determined is whether the constitutionality of the minimum sentence provision under s. 151 is still “in question” after a Superior Court judge has declared the mandatory minimum sentence under this section of the Criminal Code to be unconstitutional and of no force and effect.

16The Crown is bound by a declaration made by a Superior Court judge, with inherent jurisdiction, that a section of the Criminal Code is unconstitutional, is of no force and effect, and is effectively removed from the statute books, where notice of a constitutional question was properly served on the Attorney Generals of Canada and of Ontario. This includes de Sousa J.’s declaration that the minimum sentencing provision of s. 151 is effectively struck from the statute books and is of no force and effect.

17At para. 59 of the Ferguson decision, the Supreme Court stated that “Section 52 does not create a personal remedy.” A declaration under s. 52 that a section of the law is unconstitutional is not limited to the proceeding before the court. If this were not the case, the effect would be identical to a ruling under s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the “Charter”] which is only applicable to the case being heard by the judge. As such, a decision made under s. 52 to strike a section of law as unconstitutional is a decision in rem, meaning that the remedy applies to all.

18At para. 15 of the decision of R. v. Lloyd, 2016 SCC 13, the Supreme Court stated as follows:

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.

19A ruling by a provincial court judge that a piece of legislation offends the Constitution, can only be persuasive to other courts and judges; however it is not binding. This situation is to be contrasted with a declaration by a judge of inherent jurisdiction with the authority to make a formal declaration that the law is of no force and effect under s. 52(1). Such a declaration has already been made by de Sousa J., a judge of inherent jurisdiction.

20I agree with the submission by the defence that, once a declaration is made by a judge with inherent jurisdiction, that the law contravenes the Constitution, the offending section ceases to exist and is of no force and effect. This ruling is binding on the Crown and can only be altered on appeal. As a result, there is no constitutional issue that remains “in question” once such a declaration has been made under s. 52(1) of the Constitution Act by a judge with inherent jurisdiction.

21If it was possible for another Superior Court judge to uphold the constitutionality of a law after it has been struck down by a declaration of invalidity under s. 52(1) by another Superior Court judge then there would be the potential for inconsistent findings on the same law. If the Crown was unsuccessful on a constitutional challenge then it could simply decide not to appeal the ruling, and seek to reargue the constitutional validity of the law on another case before a different judge. This would lead to the potential of a multiplicity of legal proceedings arguing the same issue before different judges, which would not make efficient use of our judicial resources and would incur unnecessary legal costs.

22The Crown seeks an order of Mandamus ordering the Defence to serve notice of a constitutional challenge in accordance with s. 109 of the CJA to allow it to reargue that the minimum sentencing provisions of s.151 of the Criminal Code do not violate the Constitution. The Crown cannot bring the same application to declare that s. 151 of the Code is constitutional before another Superior Court judge because it is bound by the first Superior Court judge’s declaration. The Crown’s only remedy is to appeal the first Superior Court judge’s declaration that the section of the Criminal Code was unconstitutional.

Disposition of the Crown’s Applications

23The Crown’s application for an order of Mandamus ordering the defence to serve and file a notice of the constitutional question on the Attorney Generals of Canada and Ontario, and the Crown’s application to proceed with the sentencing of Mr. Sarmales as if the minimum sentence required by s. 151 of the Criminal Code was still in full force and effect, is dismissed for the reasons set out above.