ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 17-1637 & 18-542

DATE: September 24, 2021

Court File No.: 17-1637

BETWEEN:

HER MAJESTY THE QUEEN

-and-

Teresa James for Her Majesty the Queen

P.L.

Sunny Cohen for the accused P.L.

Court File No.: 18-542

• AND BETWEEN -

HER MAJESTY THE QUEEN

-and-

G.T.

Alexa Ferguson for the accused G.T.

HEARD: May 31, 2021

REASONS FOR DECISION ON CONSTITUTIONAL ISSUE

James J.

Introduction

[1] G.T. and P.L. were both convicted of a single count of sexual assault in separate and unrelated trials.

[2] Following their convictions but before sentencing, they brought applications that were heard together to address a similar question: Is the prohibition against granting a conditional sentence order (“CSO”) in a sexual assault case unconstitutional?

[3] These Reasons for Decision address both applications. For the reasons that follow, the applications are granted.

[4] The factual background of the G.T. case involves two college age seasonal workers who were residing in staff housing for the summer. During the night in question, both had been drinking and the offender was quite intoxicated. Against a backdrop of reticence and resistance by the victim, the victim had consensual vaginal and oral sex with G.T. who repeatedly touched her anus against her wishes.

[5] The factual background of the P.L. case involves a 72-year-old applicant and a 16-year-old victim. The applicant is a lifelong alcoholic. The incident in question took place at the home of the applicant after an evening of socializing and drinking with family members, including the victim. The conversation included an alcohol-fueled recounting of family and personal issues. The victim consumed sufficient alcohol to be quite intoxicated, possibly as many as 10 or 12 drinks of vodka and orange juice. At the end of the evening, the applicant invited the victim to “crash” in his bed rather than sleep in the basement with her cousins. The victim awoke during the night to discover that she was undressed and that the applicant was kissing her breasts and touching other parts of her body, including performing oral sex on her.

[6] Following the trial at which P.L. was found guilty, the Court requested the preparation of a Gladue report which has now been completed. The report concluded that it is uncertain whether the applicant has Indigenous ancestry and the author was unable to identify systemic or historical factors that may have affected the applicant from an Indigenous perspective.

The Constitutional Challenge

[7] Pursuant to s. 742.1(f)(iii) of the Criminal Code, a conditional sentence order is not an available sentencing option because both applicants were: i) convicted of sexual assault and, ii) was prosecuted by way of an indictment.

[8] The applicants have applied for an order declaring that this provision is unconstitutional and seek a declaration that s. 742.1(f)(iii) has no force or effect pursuant to s. 52 of the Constitution Act, 1982 (primacy of the Constitution) on the grounds that it violates s. 7 of the Charter (and in the case of P.L., s. 15) and is not saved by s. 1.

Position of the Applicants

[9] In the circumstances of this case, a CSO would be well within the range of sentencing options for both applicants.

[10] The phrase “sexual assault” encompasses a broad range of behaviour from the low to the high end of moral blameworthiness which makes the prohibition against CSOs is overly broad. This overbreadth is also evidenced by the availability of CSOs when the prosecution proceeds summarily rather than by indictment.

Position of the Respondent

[11] The prosecution (the “respondent”) suggests that in the case of G.T., a sentence in the range of 18 to 24 months would be appropriate. In the case of P.L., the respondent says a 2 to 3-year sentence would be appropriate.

[12] A sentence of 2 years or more makes the question of a CSO moot and no further inquiry is warranted.

[13] The impugned prohibition against CSOs in this case is specifically targeted at sexual assaults and as such, cannot be said to be overly broad.

[14] S. 742.1(e)(i) prohibits the imposition of a CSO where the offence resulted in bodily injury to the victim if the maximum penalty is a term of imprisonment of 10 years and the offence is prosecuted by way of indictment. This provision applies where there is reasonable evidence of either physical or psychological harm. The harm contemplated by the section does not have to be an element of the offence. In this case, there was evidence of harm from both victims.

Discussion and Analysis

[15] A CSO is available for certain crimes where the court imposes a sentence of two years or less if the other statutory criteria are met.

[16] CSOs came into force in 1996 as part of a major re-structuring of sentencing provisions. The reform effort was closely linked to the over-incarceration of Indigenous offenders.

[17] Subsequent amendments removed the availability of CSOs for serious bodily injury offences which by definition included sexual assaults. In 2012, pursuant to the Safe Streets and Communities Act, the CSO regime underwent further revisions that specifically made them unavailable for sexual assaults where the offence was prosecuted by indictment.

[18] Recent developments in the law respecting the removal of CSOs as a sentencing option for certain classes of crimes begin with the case of R. v. Sharma, 2020 ONCA 478. The offender in Sharma was an Indigenous woman who pleaded guilty to importing a significant quantity of cocaine and received a sentence of 17 months’ incarceration.

[19] The offence for which she was convicted provided for a maximum term of imprisonment of 14 years. Section 742.1 (c) makes CSOs unavailable for crimes with a maximum term of imprisonment of 14 years or life. Section 742.1 (e)(ii) makes CSOs unavailable for crimes that involve the import, export, trafficking or production of drugs. These criteria meant that Ms. Sharma was not eligible for a CSO on two separate grounds.

[20] Ms. Sharma’s attack on the CSO prohibition was twofold. She relied on s. 7 of the Charter which provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of natural justice and s. 15 of the Charter which provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[21] The majority opinion of the Court of Appeal held that the impugned provisions contravened both ss. 7 and 15 of the Charter. For the purposes of this analysis, I will focus on the s. 7 contravention as that is sufficient to dispose of the application.

[22] In Sharma, the question was whether her jail sentence (deprivation of liberty) was in accordance with the principles of natural justice. She specifically identified two elements of injustice- arbitrariness and overbreadth.

[23] Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual.

[24] Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose (see Canada (Attorney General) v. Bedford, 2013 SCC 72 at paras. 111 and 112).

[25] In R. v. Safarzadeh-Markhali, 2016 SCC 14 at para. 31 the court set out three sources for determining an impugned law’s purpose for the overbreadth analysis: statements of the purpose of the legislation; the text, context and scheme of the legislation; and extrinsic evidence such as legislative history and evolution.

[26] In R. v. Neary, 2017 SKCA 29 at para. 35, the Court of Appeal for Saskatchewan identified four broad purposes of the Safe Streets and Communities Act:

a) Providing consistency and clarity to the sentencing regime;

b) Promoting public safety and security;

c) Establishing paramountcy of the secondary principle of denunciation and deterrence in sentencing for the identified offences;

d) Treating non-violent, serious crimes as serious offences for sentencing purposes.

[27] In Sharma, the Court concluded that the deprivation of Ms. Sharma’s liberty was not in accordance with the principle of fundamental justice that prohibits overbreadth, that is, there was no rational connection between the impugned provision’s purpose and some of their effects (para. 174).

[28] Also, in Sharma, one of the issues was whether the setting of a maximum sentence was a suitable proxy for serious crime. That is not the case here because the maximum penalty for sexual assault is 10 years whereas in Sharma the offender was facing a maximum 14-year sentence, which matches one of the CSO prohibitions in the Safe Streets and Communities Act.

[29] The Sharma analysis went on to determine that the Charter infringement created by the Safe Streets and Communities Act was not justifiable under s. 1 of the Charter.

[30] I now turn to the decision of Justice Nakasura in R. v. R.S., 2021 ONSC 2263 which extended the Sharma analysis to convictions for sexual assault. The offender in R.S. was an Indigenous man who was convicted of sexually assaulting and choking a friend with whom he had spent the evening socializing and drinking.

[31] Evidence adduced at his sentencing hearing indicated that his family background was horrific.

[32] The defence position on sentence called for a CSO of between 18 and 24 months with 3 years’ probation. This position necessitated a constitutional change to the prohibition against CSOs for sexual assault offences. The Crown position called for imprisonment for 3 to 4 years and therefore in the Crown’s view, the constitutional challenge was moot and unnecessary to resolve.

[33] Justice Nakasura acknowledged that earlier cases had found no constitutional violation in similar circumstances, but he concluded that Sharma necessitated a fresh look. In doing so, he relied on the Sharma court’s interpretation of the purpose of the legislation which was to “maintain the integrity of the justice system by ensuring that offenders who commit serious crimes receive prison sentences.” (paras. 148, 157). This statement of purpose led to a new overbreadth analysis which Justice Nakasura said applied not only to maximum sentences, but also to crimes such as sexual assault, which encompass a broad spectrum of conduct ranging considerably in severity (para. 66). In his view, the constitutional flaw is that it captures some conduct that has no rational connection to the purpose of the provision. Put simply, it captures sexual assaults that are not so serious that the offender should go to prison in order to maintain the integrity of the justice system (para. 65).

[34] In R.S. the Court concluded that the prohibition against CSOs for sexual assault convictions offended the Charter. Does the principle of judicial comity necessitate that I should reach a similar conclusion?

[35] Quoting from Justice Strathy (as he then was) in R. v. Scarlett, 2013 ONSC 562 at para. 43:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., 1954 253 (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., 1955 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include:

(a) that the validity of the judgment has been affected by subsequent decisions;

(b) that the judge overlooked some binding case law or a 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.

[36] This view was recently endorsed by our Court of Appeal in R. v. Sullivan, 2020 ONCA 333 at para 38 in the following terms:

The application of the principles of stare decisis to s. 52(1) declarations made by superior court judges does not mean that a superior court declaration will have no effect in other cases. Other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision.

[37] On the issue of bodily harm to the victim, where the presence or absence of harm is not material to the elements of the offence, or where the circumstances do not make it obvious that the victim was harmed, the procedural safeguards of s. 724(3) ought to apply. In R. v. W. (V.) (2008) C.R. (6th) 355 (Ont. C.A.) the mechanism for resolving disputed facts relevant to the determination of a sentence was held to extend to victim impact statements.

[38] In all the circumstances, I am not persuaded that the decision in R.S. is plainly wrong. Accordingly, both applications are granted.

Mr. Justice Martin James

DATE RELEASED: September 24, 2021