R. v. Bruce, 2019 ONSC 5865

Court File and Parties

COURT FILE NO.: 18-R1846 DATE: 2019/10/09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN AND AKADA BRUCE, DOMINIC MONTGIRAUD, AND NIMA SABERI

BEFORE: Mr. Justice Marc R. Labrosse

COUNSEL: Jason Neubauer and Julien Lalande, for the Crown Michael Spratt, for Mr. Bruce Jason Gilbert, for Mr. Montgiraud James Foord, for Mr. Saberi

HEARD: September 27, 2019

RULING ON SENTENCING PROCESS

OVERVIEW

1This is a sentencing hearing involving three jointly charged accused. Mr. Saberi pled guilty prior to trial to certain charges, including transfer of a firearm contrary to s. 99(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“Code”). Both Mr. Bruce and Mr. Montgiraud were found guilty by a jury of several charges, including counts under s. 99(1) of the Code.

2At the conclusion of the plea for Mr. Saberi and the trial for Mr. Bruce and Montgiraud, each advised the Court that they would be seeking a declaration that the minimum sentence prescribed in s. 99(2) of the Code violates 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 (the “Charter”).

3At a subsequent appearance before this Court, the offenders advised that they would not be bringing applications for declarations under s. 52(1) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c.11 (the “Constitution Act”), as several judges of this Court had already determined that the mandatory minimum sentences under s. 99(2) of the Code violated s. 12 of the Charter and are thus of no force and effect. Conversely, the Crown submitted that applications were required to challenge the mandatory minimum sentences and that this Court was required to assess the decisions of the judges of coordinate jurisdiction as set out in para. 43 of R. v. Scarlett, 2013 ONSC 562.

4It was agreed that the parties would attend for an initial ruling to determine if this Court would follow the earlier rulings that the mandatory minimum sentences under s. 99(2) were of no force and effect or whether it would conduct a full hearing on the consititutional validity of the applicable mandatory minimum sentence.

ANALYSIS

5In Ontario, at the Superior Court level, a number of courts have found that the mandatory minimum sentences under s. 99(2) of the Code are of no force and effect under s. 52 of the Constitution Act. Those decisions are:

a. R. v. Hussain, 2015 ONSC 7115, 345 C.R.R. (2d) 281.

b. R. v. Harriott, 2017 ONSC 3393, 383 C.R.R. (2d) 41.

c. R. v. Sauve, 2018 ONSC 7375.

d. R. v. De Vos, 2018 ONSC 6813.

e. R. v. Wetelainen, 2019 ONSC 869.

6At issue is how the Court should interpret the analysis of Strathy J. (as he then was) in Scarlett. In Scarlett, the court initially proceeded with an analysis of the binding nature of a declaration of invalidity under s. 52(1) of the Constitution Act and if it is effectively removed from the statute books (see R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para 65). Strathy J. then proceeded to highlight the factors in Re Hansard Spruce Mills Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), to determine if there were reasons for departing from a decision made by a court of coordinate jurisdiction.

7The offenders adopt the approach of Gray J. in R. v. W.G., 2019 ONSC 1146, following Smith J. in R. v. Sarmales, 2017 ONSC 1869, 378 C.R.R. (2d) 282, and Spies J. in R. v. McCaw, 2018 ONSC 3464, 48 C.R. (7th) 359, to the effect that once the declaration of invalidity is made under s. 52(1) of the Constitution Act and a provision for a mandatory minimum sentence is declared null and void, it is effectively “off the statute books” and the sentencing should simply proceed in the normal course. The Crown supports the view of Boswell J. in R. v. Chan, 2019 ONSC 783, in support of the position that Scarlett was properly decided and that the convention of horizontal precedent still applies. This Court must therefore either follow the previous decisions that declare s. 99(2) null and void or conduct an initial assessment of those decisions to determine if they are clearly wrong. If they are clearly wrong, the Court must proceed with a full hearing on the constitutional validity of the impunged section.

The effect of a declaration pursuant to s. 52(1) of the Constitution Act

8When considering the conflicting approaches that have been placed before this Court, the starting point is clearly para. 65 of Ferguson where the Chief Justice stated:

65The 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.

9The argument put forward by the Crown in these proceedings is that the Chief Justice was not referring to the convention of horizontal precedent. However, I cannot find such limitation in the analysis of the Chief Justice. Her analysis takes its origins from Wilson J. in Osborne v. Canada (Treasury Board), 1991 CanLII 60 (SCC), [1991] 2 S.C.R. 69, where she stated at the opening paragraph of her concurring reasons:

Subject to the comments which follow I agree with the reasons for judgment of my colleague Justice Sopinka and would dispose of these appeals as he proposes. I do not share his views, however, as to the recourse open to the Court once it has found that the impugned legislation on its proper interpretation is over-inclusive, infringes on a Charter right, and cannot be justified as a reasonable limit under s. 1. Once these findings have been made I believe that the Court has no alternative but to strike the legislation down or, if the unconstitutional aspects are severable, to strike it down to the extent of its inconsistency with the Constitution. I do not believe that it is open to the Court in these circumstances to create exemptions to the legislation (which, in my view, presupposes its constitutional validity) and grant individual remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms. In other words, it is not, in my opinion, open to the Court to cure over-inclusiveness on a case by case basis leaving the legislation in its pristine over-inclusive form outstanding on the books.

10In considering the words of the Supreme Court of Canada in both Ferguson and Osborne, I am unable to conclude that these pronouncements were meant to be read with the proviso that the convention of horizontal precedent continues to apply in the case of a declaration under s. 52(1) of the Constitution Act. If the convention of horizontal precedent were meant to apply, the Supreme Court would have made that clear.

11Conversely, I appreciate that the approach of considering a statute as being “off the statute books” where a judge of coordinate jurisdiction has made a declaration under s. 52(1) of the Constitution Act could also open the door to inconsistency. Is a pending appeal of such a declaration sufficient to maintain the convention of horizontal precedent? Where no appeal is taken, does the provision become conclusively null and void and binding on all judges of the same court until such time as the declaration is overturned by an appellate court?

12There is also the concern identified in W.G. of “conceptual difficulties” where a declaration has been made by a Superior Court judge in another province. That question remains unanswered.

13The debate will likely continue as long as there will be competing views from the judges of our Court.

14For the purposes of these proceedings, I have concluded that in the case of mandatory minimum sentences, a proper consideration of the words of the Supreme Court in Ferguson leads to the conclusion that once a declaration of invalidity has been made, the impugned section is effectively off the statute books. This should be followed by all judges of coordinate jurisdiction within that province until such time as the decision is overturned by an appellate court. I come to that conclusion for the following reaons:

a. As previously stated, if the Supreme Court intended to maintain the convention of horizontal precedent in Ferguson, it would have said so. The overwhelming message of the Chief Justice in Ferguson was to speak against the case-by-case option of granting remedies under s. 52(1) of the Constitution Act. Paragraph 65 of Ferguson would be gutted of its relevance if the statement was limited to vertical precedent as this concept is already firmly entrenched in our judicial system. To maintain the convention of horizontal precedent in the face of a declaration of invalidity under s. 52(1) of the Constitution Act would simply bring other courts back to the kind of case-by-case analysis that the Chief Justice spoke against.

b. The process that has been followed with respect to the constitutionality of s. 99(2) of the Code is exactly the situation that Ferguson seeks to avoid. There have been at least five subsequent judicial considerations since Hussain of the constitutionality of s. 99(2). The Crown now asks this Court to proceed with a fresh analysis, likely based on revised, tweaked, or completely new reasonable hypothetical situation. What message is delivered to offenders who must assess how to instruct their counsel when approaching a sentencing hearing following a finding of guilt under s. 99(1)?

c. The sentencing process for a mandatory minimum sentence is unique as the removal of the mandatory minimum does not create a situation that prevents the sentencing process from going forward. The Court will simply proceed in the normal course with a sentencing hearing that will not be affected by the mandatory minimum sentence.

d. The post-Jordan era is one that calls for certainty in determining the proper judicial process to be followed post-trial. The Ontario Court of Appeal has already weighed in on the decision-making process and how it should be considered in the s. 11(b) analysis (see R. v. Charley, 2019 ONCA 726). Similar issues have been raised with respect to the sentencing process. There is clearly a need to avoid unnecessary adjudication of the constitutionality of mandatory minimum sentences when there has already been a declaration of invalidity under s. 52(1) of the Constitution Act.

e. There are also issues where a manadatory minimum sentence is considered at the provincial court level. Having conflicting decisions on the issue will leave provincial courts in limbo of not knowing whether a mandatory minimum sentence remains in force and effect or not. The question will be asked as to which Superior Court judge should be followed.

f. Following a declaration of invalidity, it would remain available to the Crown to ask the sentencing judge to hear a specific hearing, with evidence, on the need to suspend the declaration of invalidity.

g. There are also public policy concerns about the availability of legal aid and the need to limit drawn out constitutional challenges that may put an offender at risk of not being represented in an important court proceeding. As stated by Smith J. in Sarmales:

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.

15I appreciate that the result is imperfect. There continues to be risk that a Superior Court may render a decision that is clearly wrong. Also, the need to wait for appellate intervention can leave a clearly wrong decision in effect for a number of years. However, those risks are lessened in the case of mandatory minimum sentences by the ongoing sentencing process that will still lead to a full consideration of the proper sentences for these offenders. It would also be available to the Crown to seek a stay pending appeal of a declaration of invalidity in a case where such a decisions were clearly wrong and the public interest and the interest of justice warrant a stay: see Frank v. Canada (Attorney General), 2014 ONCA 485, and Bedford v. Canada (Attorney General), 2010 ONCA 814, 330 D.L.R. (4th) 162. Admittedly, the onus on the Crown to obtain a stay is high.

16The considerations in para. 14 above outweigh the risks and require certainty in the case of mandatory minimum sentences. The sentencing process should be allowed to continue in a timely manner without the need for further costs and delay.

Are the previous decisions on s. 99(2) of the Code clearly wrong?

17Despite my conclusion that declarations of invalidity of s. 99(2) are binding on this Court, I am conscious that this view may not be shared by an appellate court at some point. These offenders deserve as much certainty as possible in obtaining finality in their individual sentencing processes. Consequently, I will reluctantly continue the analysis and provide my reasons as to why I do not find that the previous declarations of invalidity to be clearly wrong.

18The Crown alleges that the reasonable hypotheticals used in the previous Superior Court rulings were flawed and render those decisions clearly wrong. There are two reasonable hypotheticals at issue. At paras. 100-101 of Hussain, the reasonable hypothetical subsequently followed in Harriott, Sauve and De Vos is worded as follows:

100Smith is an experienced hunter. He knows that that his brother is coming to Timmins for the first time in decades. They used to hunt together with their father when they were young and Smith knows that his brother, Jones, is a responsible user of a firearm. He equally knows that Jones does not have a Possession and Acquisition Licence or PAL required by the Firearms Act. They decide to enjoy old times together and Smith lends Jones a rifle to hunt deer. Section 33 of the Firearms Act allows someone to lend a firearm to another only if the person has reasonable grounds to believe that the borrower holds a licence authorizing the borrower to possess firearms.

101Smith and Jones have the misfortune to run into an old friend, Henderson, while they were out hunting. Smith and Jones had a falling out with Henderson when they were in high school. Henderson is now employed with the OPP. He decides to lay a charge against Smith under s. 99 (1) when he determines that Jones does not have a PAL. It is conceded that Smith knowingly transferred the gun to Jones, and that Jones didn’t have a PAL.

19In Wetelainen at para. 28, the Hussain hypothetical was modified and reads as follows:

28A small and reasonably foreseeable tweak to the Hussain hypothetical addresses this submission. As is the case more often than not, let us assume that the two brothers split up at some point while hunting deer such that the second brother is not always under the “direct and immediate supervision” of the first while he is in possession of the borrowed firearm. The first brother would therefore not be able to avail himself of the second exception set out in s. 33 of the Firearms Act and would be subject to the three year mandatory minimum sentence in s. 99(2) of the Code.

20The Crown’s position is that the reasonable hypotheticals do not follow the principles set out by the Court of Appeal in R. v. Plange, 2019 ONCA at paras. 70-71.

21I disagree. When considering the reasonable hypothetical considered in Hussain, it does not in my view ignore the applicability of the exception under s. 33(b) of the Firearms Act, S.C. 1995, c. 39. Firstly, it is not part of the factual matrix that Jones is under Smith’s supervision. Also, the mere fact that Jones and Smith are in proximity to each other does not lead to an automatic finding that Jones is “under the direct and immediate supervision” of Smith. This would require an evidentiary foundation that Smith would have met that standard and those facts are not part of the hypothetical.

22In Wetelainen, the Crown argued an absence of mens rea. The fact that the brothers split up at some point does not lead to an absence of mens rea. Although Smith may have benefitted from the s. 33(b) exception while Jones was supposedly under his “direct and immediate supervision”, that exeption is lost when the two individuals split up and Smith is no longer supervising. It is at that point that the offence is committed and the Crown would then have to establish the necessary mens rea for a finding of guilt.

23While I appreciate that these hypotheticals are clearly at the low end of blameworthy conduct, they are not far-fetched and do not fall outside of what should reasonably be considered a criminal offence when considering the transfer of firearms.

24On this last point, the Crown relies on R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, where the Supreme Court of Canada commented on the narrow approach that should be taken to define the criminal conduct of traffickers. I disagree that this is found in the reasonable hypotheticals used for the present s. 99(2) analysis. There is no indication that Parliament intended to exempt foreseeable actions of hunters when creating the offence or the mandatory minimum sentence under s. 99(2). To the contrary, I believe that the facts in the reasonable hypotheticals were intended to be caught by the general wording of the offence; however, it is through the sentencing process that the low moral blameworthiness can be addressed. This is not a case such as in Grant where the offender was simply found to be transporting and that no actual transfer had occurred. The hypothetical situations from Hussain and Wetelainen make out the offence.

25Consequently, I am unable to find that any of the previous decisions in the Superior Court of Justice involving the constitutionality of s. 99(2) were clearly wrong.

CONCLUSION

26For the reasons set out above, I conclude that the mandatory minimum sentences provided for in s. 99(2) of the Code continue to be of no force and effect as a result of the previous declarations of invalidity under s. 52 of the Constitution Act. The sentencing of the offenders should therefore proceed accordingly.