Court File and Parties

Court File No.: CR-6-24 Date: 2026-03-05 Superior Court of Justice -- Ontario

Re: His Majesty the King -and- Joseph Michael Long

Before: Justice Spencer Nicholson

Counsel: C. Heron and M. Michaud for the Crown R. Ellis for Mr. Long

Heard: March 4, 2026

Endorsement Re Motion for Directions

NICHOLSON J.:

[1] Mr. Long pled guilty to causing bodily harm while operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate the motor vehicle contrary to s. 320.14(2) of the Criminal Code.

[2] He is still to be sentenced by me.

[3] Mr. Long has a prior conviction under what was then section 253(b) of the Code, for driving with more than 80 mgs of alcohol in 100 ml of blood.

[4] Section 320.2 of the Code provides as follows:

Every person who commits an offence under subsection 320.13(2), 320.14(2), 320.15(2) or 320.16(2) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of,

(i) For a first offence, a fine of $1,000,

(ii) For a second offence, imprisonment for a term of 30 days, and

(iii) For each subsequent offence, imprisonment for a term of 120 days; or

[5] Section 320.26 of the Code provides as follows:

In determining, for the purpose of imposing a sentence for an offence under subsection 320.14(1) or 320.15(1), whether the offence is a second, third or subsequent offence, any of the following offences for which the offender was previously convicted is considered to be an earlier offence:

(a) an offence under any of subsections 320.14(1) to (3) or section 320.15; or

(b) an offence under any of sections 253, 254 and 255, as those sections read from time to time before the day on which this section comes into force.

[6] Notably, the Code does not contain a specific provision addressing the situation before me for sentencing, i.e. that for the purpose of imposing a sentence under 320.14(2) or 320.15(2), certain enumerated offences are considered to be an earlier offence.

[7] These provisions have been recently judicially interpreted in R. v. Bundy, 2025 NSSC 325, by Brothers J. of the Nova Scotia Supreme Court, hearing a Summary Conviction Appeal. In that decision, Brothers J. interpreted the relevant provisions of the Code to mean that the offender's prior impaired driving conviction under s. 320.14(1) was not a first offence for the purposes of s. 320.2(a)(ii). This upheld the trial judge's opinion.

[8] If Bundy is correctly decided, then it would appear that Mr. Long's conviction under s. 253(b) is not a first offence for the purpose of sentencing under s. 320.2 and s. 320.26. If that is the case, there is no minimum term of imprisonment that applies.

[9] If Bundy is not a correct interpretation of the law such that the conviction under s. 253(b) does constitute a first offence for the purpose of s. 320.14(2), then Mr. Long must serve a minimum sentence of 30 days. Since there is a minimum term of imprisonment, a Conditional Sentence Order (CSO) could not be imposed under s. 742.1(b).

[10] On this Motion for Directions, initiated by Mr. Long, I am asked to give directions on how I wish to conduct the sentencing hearing and any potential Constitutional challenges.

[11] Mr. Long advises that in the event that the minimum sentence under s. 320.2(a)(ii) applies, he is considering filing a Notice of Constitutional Question to determine the constitutional validity of that section. I note that Bundy did not address the Constitutional issue, although there was substantial argument about the interpretation of those provisions, including reference to Hansard material.

[12] Rather than simply filing a Notice of Constitutional Question, Mr. Long is attempting to be practical, thus this Motion for Directions.

[13] It is Mr. Long's position that this Court should hear arguments on whether Mr. Long's prior conviction under s. 253(b) is a first offence with respect to sentencing him for the s. 320.14(2) conviction, in other words, whether Bundy was correctly decided. If I determine that Bundy is correctly decided, then he would not likely file a Notice of Constitutional Question because there would be no mandatory minimum and a CSO is available. However, in the event that I disagree with the holding in Bundy, he would likely proceed with the Constitutional challenge.

[14] Clearly, Mr. Long has telegraphed that he will be seeking a CSO at sentencing.

[15] The Crown argues that Mr. Long's proposal is inefficient and a waste of judicial, and Crown, resources. The Crown proposes that we proceed to hear the sentencing submissions first. The Crown will be seeking a five year sentence, such that if I accept the Crown's position, or anywhere over two years, then whether Bundy is correctly decided, or s. 320.2(a)(ii) is Constitutional, the Crown argues, is moot.

[16] The Crown relies on Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, where the Supreme Court of Canada described the doctrine of mootness as a policy by which only decisions that have the effect of resolving some controversy affecting or potentially affecting the rights of the parties should be determined. Thus, in Borowski, the Court declined to hear a Constitutional challenge of subsections 251(4), (5) and (6) of the Criminal Code because s. 251 had been struck down by a prior decision.

[17] One of the Court's rationales for not hearing moot issues is the concern for judicial economy. It is that concern that is primarily relied upon by the Crown here.

[18] I disagree with the Crown's position that the issue of whether Bundy applies is moot. I do agree that whether or not a Constitutional challenge need be brought has not yet ripened. Importantly, my determination of whether Mr. Long's previous conviction under s. 253 constitutes a first offence has a direct impact on the sentence that is available to him. To use the words from Borowski, that determination does affect or may affect Mr. Long's rights. The doctrine of mootness does not, in my view, apply to the Bundy issue.

[19] In R. v. Lloyd, 2016 SCC 13, the Supreme Court was dealing with the one-year mandatory minimum sentence for a controlled substances offence and whether or not it infringed the Charter. The sentencing judge had determined that the appropriate sentencing range for the offences was 12 to 18 months and that the appropriate sentence was 12 months. Even after having reached that conclusion, the sentencing judge concluded that Mr. Lloyd had standing to challenge the Constitutional validity of the mandatory minimum. One of the judge's rationales was its potential inflationary effect on the appropriate sentencing range.

[20] The BCCA declined to hear the Constitutional challenge in Lloyd on the basis that the minimum sentence provision would have not affected Mr. Lloyd, because he was given the very minimum sentence in any event.

[21] In allowing the appeal, McLachlin CJC stated as follows at para. 18:

[18] To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender's sentence, as a condition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-making process.

[22] As I read Lloyd, the case permits substantial flexibility or discretion in the sentencing judge's handling of sentencing that may bring about a Constitutional challenge. McLachlin CJC describes that the sentencing judge "could" have declined to consider its constitutionality for reasons of judicial economy.

[23] I note that R. v. I.K., 2026 SKCA 7, was not referred to by either party. In this recently released decision, the Saskatchewan Court of Appeal reviewed the law of various Canadian jurisdictions and found that both Superior and Provincial Courts can decline to hear Constitutional challenges where there is no real bearing on the outcome of the case before them.

[24] In my view, judicial economy, or scarcity of Crown resources, should not be used to skirt relevant legal issues that may well directly impact the sentencing of an offender. While I agree that it would not be a wise use of judicial or Crown resource to unnecessarily determine the Constitutional validity of s. 320.2(a)(ii), I find that it is an important part of the sentencing process for the court to identify the range of punishments that are available for the offence under consideration.

[25] This is an unusual case, I would suggest, because the victim, who has continued her relationship with the offender, I believe supports an outcome that does not involve incarceration. I want to identify whether a CSO is available at the outset because I am open-minded about the sentence that may be imposed in this unique case. If I am wrong about her views, that can be addressed at the sentencing hearing.

[26] In R. v. Bressette, [2020] O.J. No. 5827, Donald J. of the Ontario Court of Justice, was confronted with the Lloyd situation. He was asked, by way of agreement, by counsel to first determine the appropriate sentence for Ms. Bressette and then, should that sentence fall below the floor set by the Code, it was agreed that he would move on to consider the Constitutional challenge.

[27] Obviously, this decision pre-dates Bundy and I do not believe that it is dealing with the same provisions as Bundy. Bressette is described as a first time offender. The issue before Donald J. was the imposition of a statutory minimum fine and driving prohibition. Accordingly, Justice Donald was not being asked to interpret s.320.2(a)(ii) and s. 326 of the Code. He was not being asked to determine what length of custodial sentence would be appropriate, and then determine whether the unavailability of a CSO violated the Charter. I note that the procedure adopted by Donald J. appears entirely consistent with Lloyd.

[28] I also note the penalties under consideration in Bressette, as they did not involve the possibility of custody, meaning that Donald J.'s procedure was proportionate to the issues before him.

[29] The procedure employed in Bressette was followed in R. v. Bruzas, [2021] O.J. No. 60, 2021 ONCJ 372. Again, this is not a case involving the Bundy issues. Bruzas was a first time offender. Bruzas had, unlike Bressette or the case before me, already filed a Notice of Constitutional Question.

[30] Again, it is important to note in Bruzas that the parties agreed to adopt the procedure set out by Donald J. in Bressette.

[31] While the procedure set out by Donald J. is practical, it is important that Mr. Long, in the case before me, does not agree to it. Although argued tactfully, he worries that the Court may be inclined to reject the appropriateness of a CSO simply to avoid hearing the Constitutional challenge. I assure Mr. Long that I am prepared to address any and all necessary legal arguments to do justice in the case before me.

[32] In any event, and despite agreeing with the practical way that Donald J. dealt with the issues before him, it is my view that I should hear arguments with respect to Bundy before hearing sentencing submissions. Unlike in Bressette and Bruzas, Mr. Long is facing a real risk of significant custodial time based on the Crown's position. Furthermore, Mr. Long does not agree to proceed without making submissions on Bundy first. In my view, as part of the sentencing process, I should identify the appropriate range of sentences available before determining the appropriate sentence to impose. If there is a legislative gap, as Bundy asserts, that should be identified.

[33] To conduct the sentencing hearing first, and then tip my hand as to my opinion as to the fit and proper sentence in order to determine whether I even have to deal with Bundy or the Constitutional challenge puts the cart before the horse.

[34] I recognize that this places a burden on both parties, and this court, to argue and decide the Bundy issue. Respectfully, while the Crown's comments about judicial economy and Crown resources are valid, the Bundy issue will have to be litigated in Ontario at some point. There is a general savings of judicial economy to have case law on the issue, including, perhaps, appellate guidance. If there is, indeed, an unintentional gap in the legislation, Parliament can identify and address that perceived gap, should it wish, after having been confronted with case law pointing out that problem.

[35] As noted, this is not a moot issue. It is entirely germane to the penalty that Mr. Long is facing. The Bundy issue is a live issue where the factual matrix in the case before me is as well suited to determining the issue as any other case might present. In fact, in this particular case, I am aware from the pre-plea litigation that the victim is supportive of Mr. Long not facing custodial time. Whether or not a CSO is available is something that I want to explore, rather than simply assume, prior to hearing sentencing submissions.

[36] Whether or not I would decline to hear a Constitutional challenge, should Mr. Long decide to bring one, is an issue for another day.

[37] In light of this procedure, I expect that both parties will require some time to prepare arguments with respect to Bundy. We will address scheduling at the next scheduled attendance on March 9, 2026 but I do not anticipate a hearing on any substantive issues on that date.

Justice Spencer Nicholson

Date: March 5, 2026