Court File and Parties

COURT FILE NO.: CJ 8220

DATE: 2019-12-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent

AND:

MICHAEL JOHN WILLIAM BALL, Applicant/Defendant

BEFORE: The Honourable Mr. Justice C.S. Glithero

COUNSEL: Melissa Ernewein, for the Crown, Respondent Anne Marie Morphew, for the accused, Applicant

HEARD: December 9, 2019

RULING ON TWO NOTICES OF CONSTITUTIONAL QUESTIONS

[1] Mr. Ball brings these applications to challenge the constitutionality of the mandatory minimum sentences provisions in s. 99(2) and s. 99(3) of the Criminal Code.

[2] As is required, the two Notices of Constitutional Question, one for each of the impugned sections, were served on the local Provincial Crown’s Office, the Regional Office of the Public Prosecution Service of Canada, on the Constitutional Law Branch of the Attorney General of Ontario and on the Attorney General of Canada.

[3] Neither of the Attorneys General have seen fit to file materials or to appear on the return of the Application.

[4] Mr. Richard Prendiville appeared on behalf of the Regional Office of the Public Prosecution Service of Canada for Mr. Ball’s guilty pleas but declined to participate in the constitutional issue.

[5] Mr. Ball appeared before me on a fourteen-count indictment. Counts 1, 2, and 3 allege trafficking in prohibited firearms, trafficking in restricted firearms, and trafficking in non-restricted firearms, all of which would contravene s. 99(1) of the Criminal Code and attract the application of s. 99(2)(a).

[6] Counts 4 through 7 allege acts of trafficking in various prohibited weapons, namely tasers, batons, brass knuckles, butterfly and switchblade knives respectively.

[7] Counts 8 through 14 allege offences of trafficking in various Schedule 1 drugs, contrary to s.5(1) of the Controlled Drug and Substances Act.

[8] This morning Mr. Ball entered pleas of guilty to counts 1 and 2, and 9 and 10.

[9] Counts 1 and 2 charge offences in trafficking prohibited firearms and trafficking in restricted firearms respectively. Of note, the accused was not arraigned, nor was any plea taken in respect of count 3, and accordingly Mr. Ball is not before me to be sentenced on an offence that would attract the mandatory minimum sentence set forth in s. 99(3).

[10] Both in the written materials filed in support of the application, and in oral submissions before me, counsel for Mr. Ball concedes that the appropriate sentence for Mr. Ball exceeds the mandatory minimums set out in s.99, and in that sense, there is no argument that the impugned mandatory minimum sentences are grossly disproportionate when applied to him.

[11] The applicant relies on R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773 as authority permitting a constitutional challenge to a minimum sentence provision which could produce results grossly disproportionate to that accused or would produce grossly disproportionate sentences if applied in “other foreseeable scenarios”. As a preliminary issue, the applicant contends that the issue of the constitutionality of the minimum sentence provision in s.99(2)(a) has already been decided in numerous cases, including six prior cases by judges of this court, and accordingly that no further inquiry into the matter ought to be entertained.

[12] The prior decisions relied upon by the applicant include those where the mandatory minimum sentence was held to be unconstitutional based on the facts and circumstances of that case, and others where the finding of unconstitutionality was based on other reasonably foreseeable hypothetical situations. Still others were decided on the basis of principles relating to stare decisis or judicial comity. Every decision in Ontario that has considered the issue has found s.99(2)(a) to be unconstitutional and that the section is not saved by s.1 of the Charter. Furthermore, none of those cases have been appealed.

[13] The Crown’s position on this preliminary issue with respect to the mandatory sentence provision contained in s.99(2)(a), is that I am not bound by the prior decisions, and that I ought to reconsider the issue and find that the prior decisions are “plainly wrong”, within the test as set out in R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644 (SCJ). at para. 43.

[14] After submissions had been completed on the preliminary issue, I advised counsel that I would not be proceeding to hear the constitutional issues on the merits, with reasons to follow. These are those reasons.

Discussion

[15] I am of the view that it would be undesirable, and in fact wrong, for me to embark on a full hearing and a reconsideration of the existing jurisprudence dealing with the constitutionality of s.99(2)(a).

[16] In Scarlett, Strathy J., (as he then was), dealt with the constitutionality of a mandatory minimum sentence required by s.95(2)(a)(i). That same section had previously been found to be unconstitutional and to be of no force and effect in the declaratory judgment of Molloy J. in R. v. Smickle, 2012 ONSC 602. In para. 33 of Scarlett, it is observed that the declaration in Smickle that the mandatory minimum sentence provided for in s.95(2)(a)(i) was that the section was null and void and of no effect, not only in that case but in all future cases. At para. 34 it is pointed out that by reason of s.52(1) of the Constitution Act, that is the necessary result with a finding of constitutional invalidity, and at para. 35 it is noted that such a declaration does not actually delete the provision from the statute, but rather renders it to be of no force and effect.

[17] At para.36 it is noted that such a declaration of unconstitutionality applies not merely to that particular case, but to the whole world.

[18] Further, at para. 41, reference is made to both Nova Scotia (Workers Compensation Board) v. Martin, 2003 SCC 54 and R. v. Ferguson, 2008 CCC 6 at para. 65, both of which held that a declaration of invalidity establishes the invalidity of that legislative provision for all future cases. In para. 42 it is noted that Chief Justice McLachlin in Ferguson expressly rejected the idea that after a declaration of invalidity in one case, the courts should continue to consider the issue in further cases, as that creates uncertainty for all involved and potential uneven and unequal results.

[19] Despite those observations, para. 43 of Scarlett set forth the oft quoted paragraph relating to judicial comity, namely that decisions of judges of the same court are not absolutely binding but should be followed in the absence of cogent reasons to depart from them, which would include that the validity of the judgment has been affected by subsequent decisions, or that the decision overlooks some binding caselaw or a relevant statute, or that the decision was otherwise made without full consideration, and that all of this can be summed up as indicating that the earlier judgment should be followed unless the subsequent judge is satisfied that “it was plainly wrong”.

[20] The observations in Scarlett continue at para. 44 that a constitutional case where there has been a declaration of constitutional invalidity by a judge of the same jurisdiction there is a strong reason for a subsequent judge to follow it.

[21] In R. v. Sarmales, 2017 ONSC 1869, [2017] O.J. No. 1649, the defence sought to rely on an earlier declaration of constitutional invalidity in respect of the mandatory minimum sentence set forth in s.151. The Crown sought an order to require the defence to file a Notice of Constitutional Question so as to permit the Crown to defend the constitutionality of the mandatory minimum sentence. The court held that the earlier decision had ruled the section unconstitutional and declared the section to be of no force and effect and followed the direction in Ferguson, that such a declaration applies not only to the case at hand but rather renders the section null and void and effectively removes it from the statute books until such time as it is overturned by the Court of Appeal or the Supreme Court of Canada. At para. 12, Smith J. agreed that a decision by a judge of a court of concurrent jurisdiction is of persuasive value only but then relied on the observations made in Scarlett to the effect that a judgment declaring legislation to be unconstitutional should be followed, unless the second judge is “satisfied that it was plainly wrong”. At para. 20, Justice Smith ruled that once the declaration of constitutional invalidity had been made by a judge of inherent jurisdiction, the offending section in effect ceased to exist and was of no force and effect and was binding on the Crown only to be altered on a successful appeal. Accordingly, he ruled that there was no constitutional issue remaining. He observed that to allow the Crown to bring successive applications to successfully uphold the constitutionality of a law that had been struck down by a declaration of invalidity by a judge of a court of inherent jurisdiction, would have the potential of leading to inconsistent findings, and to a multiplicity of legal proceedings relating to the same issue, and hence would not make efficient use of judicial resources. He held at para. 22 the Crown’s only remedy was to appeal the first declaration by a Superior Court judge that the section was unconstitutional.

[22] In R. v. Bruce, [2019] O.J. No. 5159, Labrosse J. decided that a full hearing as to the constitutional validity of s.99(2) was not required, as five previous decisions of the Superior Court in Ontario had found the mandatory minimum sentence provisions under s.99(2) (a) to be unconstitutional and declared them to be of no force and effect.

[23] At para. 7 Labrosse J. set forth the issue, with the accused in that case urging him to follow Sarmales and R. v. McCaw, 2018 ONSC 3464, both standing for the proposition that a declaration of constitutional invalidity and that such mandatory minimum sentence is accordingly null and void, is the end of the matter unless that earlier decision is successfully appealed. The Crown took the opposite view arguing that Scarlett decided that “the convention of horizontal precedent still applies”. He determined that he had to decide whether or not to simply follow the earlier cases declaring the section to be unconstitutional and null and void, or in the alternative, to conduct an initial assessment of the earlier decisions to determine if they are clearly wrong as allowed under Scarlett, and if clearly wrong then to proceed with a full hearing of the constitutional issue.

[24] He determined at para. 10 that following a declaration of constitutional invalidity and that the impugned provision was null and void, did not allow for the application of the “convention of horizontal precedent” given the Supreme Court of Canada’s findings in Osborne v. Canada (Treasury Board), 1991 60 (SCC), [1991] 2 S.C.R. 69.

[25] At para. 14, Labrosse J. sets forth seven reasons for holding that a declaration of constitutional invalidity should be followed by all judges of coordinate jurisdiction in that same province until such time as the decision is overturned on appeal. The first such reason refers back to his earlier observations that if in Ferguson the Supreme Court of Canada had intended to maintain a “convention of horizontal precedent”, it would have said so.

[26] I agree with Labrosse J. as to that first reason he stated, and I agree with him in the other six reasons he cites.

[27] He then went on, beginning at para. 17, with a consideration of the earlier decisions and whether or not they were “plainly wrong” and did so on the basis that if his aforementioned conclusion was shown to be wrong by an appellate court, then it was appropriate to give his views on the basis of the “convention of horizontal precedent” approach. As it would appear from para. 4 in Bruce that the court determined the issue on a preliminary basis, without a full hearing on the constitutional validity of the impugned provision, I’m not sure how you can then, as an alternate approach, turn to consider the matter on the “convention of horizontal” precedent basis, if the Crown has not been afforded the opportunity to make submissions as to why the earlier cases are “plainly wrong”.

[28] The provincial Crown in the case before me clearly wanted the opportunity to make submissions as to why all the earlier cases that have ruled s.99(2)(a) to be unconstitutional and no force and effect are “plainly wrong”. I did not give her that opportunity. Having not given her that opportunity, I don’t think it is open to me to consider whether those decisions were not “plainly wrong”.

[29] For these reasons, I conclude that the minimum mandatory sentence provision in s. 99 (2)(a) is of no force and effect in the sentencing in this case.

[30] As for the constitutional challenge to the minimum sentence provision in s. 99(3), the Crown submits that it is moot as Mr. Ball will not be sentenced for an offence to which that section applies.

[31] Counsel for the applicant agrees but expresses a concern arising from exhibit one, the agreed upon statement of facts. It contained not only agreed facts in support of the four offences to which a plea of guilty was entered, but also contained a number of other agreed upon facts related to other wrongful acts relating to weapons. The applicant submits that the constitutional question concerning s. 99(3) should proceed if the Crown relies on the mandatory minimum to enhance the aggravating nature of these other wrongful acts.

[32] The Crown advised that there would be no such reliance on that mandatory minimum sentence provision.

[33] Accordingly, the mandatory minimum sentence provision in s. 99(3) will have no bearing on this sentencing and is therefore moot.

[34] The constitutionality of s. 99(3) apparently has not been determined in any Ontario cases. It has been found to be unconstitutional in a Nova Scotia case, R. v. McInnis, [2017] N.S.J. No. 386 C.A), and in Quebec in Ayotte c. R., [2019] J.Q. no 5980 (CA)

[35] It is inappropriate to consider that issue in a case where the issue is moot.

C.S. Glithero J.

Released: December 12, 2019