COURT FILE NO.: CR-17-52 DATE: 2019/05/17 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Malcolm Valade
Counsel: André White, Counsel for the Crown Solomon Friedman, Counsel for the accused
HEARD: March 1 and 22, 2019 and May 16, 2019
REASONS on constitutional application
leroy, j.
Introduction
[1] Malcolm Valade is being sentenced following conviction for intentionally discharging a firearm while being reckless as to the life or safety of another person, contrary to s. 244.2(1)(b) of the Criminal Code. Conviction for this offence carries a mandatory minimum sentence of four years imprisonment.
[2] On September 19, 2018, I released reasons for concluding that having regard to the objectives and principles of sentencing in s. 718 in the particular circumstances of this case, the fit and proportionate sentence is a prison term of twenty months before discount for time spent in pre-trial custody and restrictive bail, to be followed by probation and the ancillary orders – those reasons can be found at 2018 ONSC 5539.
[3] The defence argues that the mandatory minimum sentence in this case of imprisonment for four years is cruel and unusual punishment for this offender, contrary to s. 12 of the Charter, is unconstitutional and to the extent of the inconsistency with his Charter right is of no force and effect in accordance with s. 52(1) of the Constitution Act, 1982.
[4] The Crown argues that the mandatory minimum sentence is well-crafted for the offence, constitutional and should be imposed in this case. The Crown argues that the mandatory minimum reflects the gravity of gun crimes. The facts at bar are not comparable to those in R. v. Nur, [2015] 1 SCR 773, 2015 SCC 15 where the conviction involved the possession of loaded prohibited firearms. Here there was reckless use. The facts here are closer to those in R. v. Oud, 2016 BCCA 332 where Mr. Oud in response to a failed cocaine purchase went to his vehicle and shot seven rounds into a building with occupants.
[5] When a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision imposes cruel and unusual punishment (i.e. 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 – R. v. Nur, [2015] 1 SCR 773, 2015 SCC 15 - para 77.
[6] Here, the submission is that the mandatory minimum sentence of four years under subsection 244.2(3) imposes cruel and unusual punishment on Mr. Valade. Defence has not raised the reasonable foreseeability construct for consideration as, in their view, Mr. Valade’s circumstances are as favourable for relief as any that might be conjured.
Do the Mandatory Minimum Terms of Imprisonment in s. 244.2(3)(b) Infringe Section 12 of the Charter?
The analytical framework
[7] Section 12 of the Charter states that everyone has the right not to be subjected to any cruel and unusual punishment. The question is whether the mandatory minimum sentence imposed by s. 244.2(3) violates this guarantee – Nur para 38.
[8] A challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the Court must determine what constitutes a proportionate sentence or range for the offence having regard to standard sentence principles. Then, the Court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter – Nur para 46.
[9] There is a high bar for what constitutes “cruel and unusual punishment” under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he then was) explained at p. 1072 that the test of gross disproportionality “is aimed at punishments that are more than merely excessive”. He added, “[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation”. – Nur 39;
[10] The Supreme Court in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 at paragraph 24 re-emphasized the point as follows:
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, [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.
[11] Mandatory minimum sentences, by their nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive Courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing – Nur para 44.
[12] The Court distanced itself from a rational connection between mandatory minimum sentences and general deterrence – Nur114. Using sentencing to send a message to discourage others from offending is relevant but it cannot, without more, sanitize a sentence against gross disproportionality: “General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual” (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 45, per Gonthier J.). Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending – Nur para 45.
[13] Although there is no arithmetic value or particular fraction of a mandatory minimum sentence that will presumptively violate s. 12, the bigger the disproportion between the fit sentence and the mandatory minimum sentence, the more likely the mandatory minimum sentence is grossly disproportionate – R. v. SJP, 2016 NSPC 50 at p. 119.
[14] Mandatory minimum sentences are grossly disproportionate for an individual’s circumstances when:
i. there is a sizeable gap between the sentence otherwise imposed and the mandatory minimum sentence (suspended sentence rather than a ninety day minimum – R. v. JG, 2017 ONCJ 881; 18 months rather than a two year minimum – R. v. Sharma, 2018 ONSC 1141; 5 months rather than the one year minimum – SJP; suspended sentence rather than the two year mandatory minimum – R. v. Joseph, 2018 ONSC 4646; 6 months rather than the 36 month mandatory minimum – R. v. O’Neill Harriott, 2017 ONSC 3393); ii. there is a high ratio between the sentence otherwise imposed and the mandatory minimum sentence (12 months to 5 months greater than 2:1– SJP); iii. the consequence of the mandatory minimum sentence is penitentiary rather than reformatory in the context that penitentiary sentences are generally reserved to the most serious offender and offences – R. v. Robitaille 2017 ONCJ 768; iv. S. 12 Charter protection is not confined to one dimensional focus on sentence duration, but rather the quality and effect of the punishment on the offender including the nature and conditions under which it is employed – Sharma, Robinson.
[15] Mr. Valade’s section 12 right is infringed by the mandatory minimum sentence of four years imprisonment. It is grossly disproportionate to the appropriate sentence, having regard to the nature of the offence and the circumstances. Here, the gap between sentence based on standard sentence principles and the mandatory minimum is twenty-eight months, the ratio is 2.4:1 and the doubling effect mandates a penitentiary sentence in contrast to a reformatory sentence.
[16] My reasons for decision in this matter released on September 19, 2018 explain why I concluded that the proportionate and fit sentence having regard to the gravity of the offence and the moral blameworthiness of the offender was twenty months. Those reasons inform the meaningful effect of this outcome on Mr. Valade. He is not properly a candidate for penitentiary service.
[17] With respect, the Crown position and reliance on the Oud dicta is a call for application of the blunt instrument of the minimum mandatory sentence and disregard of the reasons for my assessment of the fit and just sentence in this case.
[18] A reasonable and informed Canadian would consider the disparity between the fit sentence of twenty months imprisonment and the mandatory minimum of four years imprisonment so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society.
[19] Accordingly, the mandatory minimum provision in section 244.2(1)(b) is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.
[20] In order to justify the infringement of the respondents’ s. 12 rights under s. 1 of the Charter, the Attorney General of Ontario must show that the law has a pressing and substantial objective and that the means chosen are proportional to that objective. There is no question of the pressing and substantial objective. A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes, [1986] 1 S.C.R. 103. It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1 – Nur para 111.
Rational Connection
[21] The state bears the burden of showing that the mandatory minimum sentences of imprisonment found to violate s. 12 of the Charter are rationally connected to the goals of denunciation, deterrence, and retribution. To do so, the government must establish a causal connection between the infringement and the benefit sought “on the basis of reason or logic”: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 153. The question is: are the means the law adopts a rational way for Parliament to pursue its objective? – Nur para 112.
[22] The Supreme Court concluded that despite the frailty of an empirical connection between deterrence and mandatory minimum sentence provisions, a rational connection exists between mandatory minimum terms of imprisonment and the goals of denunciation and retribution. Therefore, this requirement of the s. 1 test is met – Nur para 115.
Minimal Impairment
[23] The impugned section is not minimally impairing. By not drafting an offence with a close correspondence between conduct attracting significant moral blameworthiness — such as those engaged in criminal activity street crime — and the mandatory minimum, rather than a sweeping law that includes in its ambit conduct in the case at bar attracting less blameworthiness for which the mandatory minimum sentence would be grossly disproportionate, the government has not discharged its burden on this branch of the Oakes test. There are less harmful means of achieving the legislative goal.
Proportionality
[24] This stage of the analysis weighs the impact of the law on protected rights against the beneficial effect of the law in terms of the greater public good. In light of the conclusion that the mandatory minimum term of imprisonment in s. 244.2(3)(b) is grossly disproportionate, I do not find that the limits are a proportionate justification under s. 1.
Conclusion
[25] The mandatory minimum sentence imposed by s. 244.2(3)(b) is inconsistent with s. 12 of the Charter and is therefore declared of no force or effect under s. 52(1) of the Constitution Act, 1982.
The Honourable Mr. Justice Rick Leroy Released: May 17, 2019