R. v. Ali, 2017 ONSC 4531
CITATION: R. v. Ali, 2017 ONSC 4531
COURT FILE NO.: 14-SA5093
DATE: 2017/07/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAMMED ALI
Accused
J. Bocking, for the Crown
P. Beach, for the Accused
Heard by: Written Submissions
by court order made under subsection 486.4(1) of the Criminal code, information that may identify the person described in this judgment as the complanant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR decision
L. SHEARD J., (orally)
[1] Following trial and findings of guilt, on July 20, 2017, at the request of the Crown, the Court acquitted Mr. Ali of the charge laid under section 153 (1.1) and, applying Kienapple[^1], granted a conditional stay of the charge laid under s. 271 of the Criminal Code, R.S.C., 1985, c. C-46. The Crown asks that Mr. Ali be convicted under section 151 (a) of the Code.
[2] On July 20, 2017, I advised counsel by email that, for reasons to follow, I had decided that the declaration of Justice M. Linhares de Sousa in R. v. M.L., 2016 ONSC 7082 that the mandatory minimum punishment of imprisonment for a term of one year as found in s. 151(a) is of no force or effect is binding upon the Crown. These are the reasons.
[3] Upon a finding of guilt by way of indictment, section 151(a) of the Code imposes a mandatory minimum punishment of imprisonment for a term of one year (“the MMP”). In 2016, Linhares de Sousa J. found that the MMP violated section 12 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 and declared that s. 151(a) was of no force or effect pursuant to section 52 of the Constitution Act, 1982 (R. v. M. L., 2016 ONSC 7082).
[4] In 2017, Justice Robert Smith was also asked to consider the constitutionality of the MMP. He held that Justice Linhares de Sousa’s ruling that the MMP was no longer in force was binding upon the Crown (R. v. Sarmales, 2017 ONSC 1869). The Crown advises the Court that it has appealed from the decisions of Justices M. Linhares de Sousa and Smith. Those appeals are pending before the Court of Appeal for Ontario.
[5] More recently, the Court in R. v. Hussein, 2017 ONSC 4202 also concluded that the “principles of comity between judges of cognate jurisdiction are to the effect that decisions by a judge of this Court should generally be followed by other judges of this Court”.
[6] On July 20, 2017 the Crown asked this Court to determine whether R. v. M.L. is binding upon this Court or whether it should be followed because of judicial comity, or otherwise. If the answer to that question is yes, then the Crown acknowledges that the next step in this proceeding is for submissions regarding sentencing, using applicable sentencing principles in cases in the absence of a mandatory minimum punishment.
[7] The Defence argues that the declaration made by Linhares de Sousa J. that s.151 (a) was unconstitutional and of no force and effect is binding on this Court and cannot be altered except by way of a successful appeal. The Defence specifically referred to paragraphs 16 and 19 - 22 of Sarmales. The effect of those paragraphs is that the Crown is bound by the declaration of Linhares de Sousa J., which effectively struck the MMP from the statute books. Accordingly, the Crown may not bring the same application before another Superior Court judge but must seek its remedy by way of an appeal.
[8] Notwithstanding its arguments that this Court is not bound by the decision of a court exercising coordinate jurisdiction, the Crown acknowledges that the contrary view was expressed by the court in R. v. Scarlett, 2013 ONSC 562.
[9] In Scarlett, the court expressed the view that “decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them…[which reasons] include (a) that the validity of the judgment has been affected by subsequent decision; (b) that the judge overlooked some binding case law or relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong…” (at paras 42 - 44).
[10] In its written submissions, the Crown argues that the decision of Linhares de Sousa J. was plainly wrong in her analysis of whether the MMP would impose a grossly disproportionate sentence on other persons in reasonably foreseeable situations because of “her overemphasis” on the two “linchpin” cases she cited that revolved around prior sentencing frameworks. Given the change in sentencing regimes, the Crown argues that it is not surprising that the sentencing differed. In particular, the Crown submits that one of the decisions relied upon by Justice M. Linhares de Sousa, R. v. C.L., 2013 ONSC 277, [2013] O.J. No.114, was of limited value because the sentence imposed in that case did not reflect the current legislative environment in which child sex offences are treated more seriously.
[11] In support of that argument, the Crown refers to the recent British Columbia Superior Court decision in R. v. Horswill, 2017 BCSC 35. In that case, the Court held that the MMP did not violate section 12 of the Charter and that when considering reasonable hypotheticals, the analysis must be assessed in the context of current or prevailing sentencing principles and not those that applied to cases decided 5 or 10 years ago. The Crown further submits that by raising the mandatory minimum sentence from 45 days to one year in prison, Parliament is sending a message concerning prevailing sentencing principles and the seriousness - “the heinous nature” - of these offences.
Was the decision of Justice Linhares de Sousa plainly wrong?
[12] Addressing the Crown’s alternate argument first, I cannot and do not conclude that the decision of Linhares de Sousa J. was plainly wrong. On that issue, I accept the argument put forth by the Defence that the three “Hansard” circumstances identified in Scarlett do not apply to the decision of Linhares de Sousa J.: (a) that the validity of her judgment has not been affected by subsequent decision; (b) she did not overlook some binding case law or relevant statute; and (c) her decision was not otherwise made without full consideration.
[13] The Defence has referred to recent Superior Court decisions, in addition to Scarlett, that have considered the three “Hansard” circumstances, and, having determined that they do not apply, have followed a decision on the basis of judicial comity (see, R. v. T.A.P., 2013 ONSC 797, [2013] O.J. No 968; R. v. Pham, 2016 ONSC 5312; R. v. Tran, 2017 ONSC 651; and R. v. Harriott, 2017 ONSC 3393).
Is the Crown bound by the declaration of Linhares de Sousa J. that the MMP is unconstitutional and of no force and effect?
[14] On this issue, I agree with the reasoning of Justice Robert Smith in Sarmales, at paragraphs 20 and 21 that, once a declaration has been made by a judge that the law contravenes the Constitution the subject section ceases to exist and therefore “there is no constitutional issue that remains ‘in question’ ”. To conclude otherwise would create the potential for inconsistent findings on the same law and “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.”
[15] For the foregoing reasons, I conclude that for the purpose of sentencing, the Court must apply sentencing principles and cases in the absence of a mandatory minimum.
L. Sheard, J.
Released: July 26, 2017
CITATION: R. v. Ali, 2017 ONSC 4531
COURT FILE NO.: 14-SA5093
DATE: 2017/07/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOHAMMED ALI
Accused
REASONS FOR DECISION
L. Sheard J.
Released: July 26, 2017
[^1]: 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729