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C10-2
Memo current as of:
May 8, 2015
Contact: Paul Opolski
Charter of Rights Section 12

CRUEL AND UNUSUAL PUNISHMENT: MANDATORY MINIMUM SENTENCE
Table of Contents
INTRODUCTION ............................................................................................................. 2
Unconstitutional Sentence for Particular Offender ................................................... 3
Unconstitutional Sentence for Reasonably Hypothetical Offender ........................... 4
Limitations on Availability of s.12 Constitutional Challenge ...................................... 5
CONSTITUTIONAL EXEMPTIONS AND S.12 OF THE CHARTER............................... 7
JURISPRUDENCE........................................................................................................ 12
(A) CREDIT FOR PRE-TRIAL CUSTODY ........................................................................... 12
(B) CONSECUTIVE SENTENCES ..................................................................................... 15
(C) FIREARM OFFENCES ............................................................................................... 17
Use of Firearm ....................................................................................................... 18
Possession Offences ............................................................................................. 30
Charter Protection Against Crown Election to Prosecute by Indictment ................. 33
(D) NARCOTICS OFFENCES ........................................................................................... 40
(E) MOTOR VEHICLE OFFENCES .................................................................................... 42
(F) MURDER ................................................................................................................ 53
(G) PROVINCIAL OFFENCES .......................................................................................... 58
(H) MINIMUM FINES ...................................................................................................... 58
(I) CHILD PORNOGRAPHY .............................................................................................. 65
(J) SEXUAL OFFENCES ................................................................................................. 66
2
Legal Aid Ontario - LAO LAW
Introduction
This memorandum focuses on the application of s.12 of the Charter to various
mandatory minimum sentencing provisions throughout the Criminal Code. For the
general principles underlying s.12, as well jurisprudence in contexts other than
mandatory minimums, please see LAO LAW memorandum C10-1, Cruel and Unusual
Punishment.
Lamer J. made the following statement in Smith, [1987] 1 S.C.R. 1045, 34
C.C.C.(3d) 97, 58 C.R.(3d) 193 (S.C.C.), at 143 C.C.C.:
A minimum mandatory term of imprisonment is obviously not in and of
itself cruel and unusual. The legislature may, in my view, provide for a
compulsory term of imprisonment upon conviction for certain offences
without infringing the rights protected by s.12 of the Charter.
In respect of a minimum term of imprisonment, gross disproportionality is not an
issue that is determined by the judges personal sense of the harshness of the
sentence, but involves an application of legal criteria to compare the minimum penalty
with what would be regarded as an appropriate range of sentence for the same offence
but for the challenged minimum: Nur, 2013 ONCA 677, at paras. 67-68, affd 2015 SCC
15, at para. 39. Contextual factors that inform the gross disproportionality analysis
include the gravity of the offence; the circumstances of the offence/offender; the actual
effect of the treatment or punishment on the individual; whether the minimum term is
necessary to achieve a valid penal purpose and is founded on recognized sentencing
principles; the existence of valid alternatives to the minimum sentence; and whether
there is great disproportion compared to other punishments imposed in the same
jurisdiction: Wiles, 2005 SCC 84, at para. 5; Nur, 2013 ONCA 677, at paras. 78-79;
Morrisey, 2000 SCC 39, at paras. 35-49; Goltz, 1991 CanLII 51 (S.C.C.).
The gravity of the offence will probably be the most important factor where the
minimum term reflects a significant period of incarceration because a sentence of that
nature can properly be imposed only for a serious criminal offence: Nur, 2013 ONCA
677, at para. 80, affd 2015 SCC 15. The gravity of an offence is determined in light of
the elements of the offence and not by the circumstances of the particular charge: Nur,
above, at para. 81. More specifically, the gravity of an offence is informed by the harm
reflected in the elements of the offence and by the moral culpability required to establish
guilt: Nur, at para. 83. The harm may fall on a spectrum including death, injury, damage
to property, interference with other legally protected interests and the risk of one or
more of those consequences; offences that require proof of actual harm to others,
especially death, are generally more serious than crimes that prohibit other forms of
harm; offences that do not require proof of any harm or risk of harm are generally less
serious than crimes that require proof of some kind of harm or risk of harm: Nur, at para.
84. The moral culpability to establish guilt relates to the requisite mental state, including
intention, recklessness and knowledge, with subjective intent to bring about a prohibited
consequence falling at the top of the hierarchy for moral culpability: Nur, at para. 86.
Moral culpability may also be reflected in the nature of the conduct underlying a penal
negligence offence; however, the blameworthiness will usually be less serious than an
offence causing the identical consequence, but with a subjective mental component:
3
Nur, at para. 87.

The contextual factor of the actual effect of the minimum term on the individual
includes consideration of: (a) the conditions under which the sentence will be served
and any evidence of particular negative effects, although judicial notice may be taken
that first offenders, particularly if youthful, will have a difficult time in the federal
penitentiary system; (b) evidence in respect of the likelihood of parole; and (c) the
availability of credit for pre-sentence custody: Nur, 2013 ONCA 677, at para. 93-100,
affd 2015 SCC 15. Where the minimum term is relatively short, its limited duration and
the potential, if it is less than 90 days, for it to be served intermittently make it less likely
that the effects will be found to outrage standards of decency or be seen as grossly
disproportionate to the wrongdoing: Goltz, 1991 CanLII 51 (S.C.C.).
The contextual factor of penological goals and sentencing principles recognizes
that an emphasis on punitive, rather than rehabilitative, sentencing principles does not
thereby render a minimum sentence unconstitutional; however, ultimately, it is the
gravity of the offence that dictates whether a strong emphasis on general deterrence,
denunciation and retribution can be constitutionally justified: Nur, 2013 ONCA 677, at
paras. 101-103 , affd 2015 SCC 15, at para. 45. The Supreme Court recognized, in
Nur, above, that mandatory minimum sentences are a blunt instrument that may
deprive courts of the ability to tailor proportionate sentences at the lower end of a
sentencing range (at para. 44).
The Supreme Court in Nur, above, held that a challenge to a mandatory
minimum sentence under s.12 of the Charter requires two steps (at para. 46):
First, the court must determine what constitutes a proportionate sentence
for the offence having regard to the objectives and principles of sentencing
in the Criminal Code. 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.
In determining whether a sentence is grossly disproportionate, the Supreme
Court in Nur, above, affirmed that a court must consider both the particular offender that
brings the s.12 challenge as well as how the provision impacts other offenders who
might reasonable be caught by it (at paras. 49, 58, 65).
Unconstitutional Sentence for Particular Offender
In deciding whether a sentence is grossly disproportionate for what the offender
deserves for the particular offence in the offenders circumstances, the contextual
factors can be considered compendiously by comparing the mandatory minimum to the
sentence that would have been imposed under the identical sentencing scheme, but
without the mandatory minimum: Nur, 2013 ONCA 677, at para. 104, affd 2015 SCC
15, at paras. 39 and 56-57. Where the paramount sentencing principles support a
sentencing range for the offence/offender that encompasses a sentence as long as, or
relatively close to, the minimum term, the mandatory minimum is not grossly
disproportionate: Nur, above, at para. 109; Smickel, 2013 ONCA 678, at para. 32.
4
Accordingly, in Nur, above, where, absent the minimum sentence for possession
of a loaded prohibited firearm of three years imprisonment, per s.95(2)(a)(i) of the
Code, the sentencing range for the 19-year-old first offender who discarded a loaded
firearm during a police pursuit, would have been between the maximum reformatory
sentence and three years imprisonment, the mandatory minimum could not be
described as grossly disproportionate. Similarly, in Smickle, 2013 ONCA 678, where,
absent the minimum three year term under s.95(2)(a)(i), the maximum reformatory
sentence could have been imposed on the 27-year-old first offender who was holding a
fully loaded semi-automatic handgun (with the hammer cocked to fire) when the police
made a dynamic entry in the apartment unit, the minimum sentence did not infringe
s.12. The Court of Appeal noted that while a three year term would be excessive and
perhaps sufficiently excessive to warrant appellant intervention, it did not reach the level
of gross disproportionality.
In assessing the sentence that might have been imposed for a firearms offence
absent the statutory minimum, cases decided when a constitutionally invalid minimum
sentence was still in force are of reduced weight in considering the appropriate
sentence because the minimum creates an inflationary floor that causes the whole
range to increase: Delchev, 2014 ONCA 448, at paras. 18-19. At the same time, the
elevating effect of the inflationary floor is offset to some extent by the fact that lengthy
custodial terms have been imposed since 2005 to deter offences involving the
possession/use of loaded handguns, making mitigating factors in relation to the offender
less significant: Delchev, above, at para. 20; Nur, 2013 ONCA 677, 105-107, affd 2015
SCC 15.
Unconstitutional Sentence for Reasonably Hypothetical Offender
On the issue of whether a mandatory minimum sentence in the circumstances
represented by reasonable hypothetical would be grossly disproportionate, a
reasonable hypothetical reflects an offence that falls within the broad mainstream of fact
situations contemplated by the prohibition, as opposed to remote or extreme
circumstances that are "far-fetched or only marginally imaginable": Nur, 2013 ONCA
677, at paras. 115-122, affd 2015 SCC 15, at paras. 52-62; Wiles, 2005 SCC 84, at
para. 5; Morrisey, 2000 SCC 39, at paras. 29-33.
In Nur, 2015 SCC 15, affg 2013 ONCA 677, McLachlin J. offered some
guidelines to conducting the reasonable hypothetical inquiry:
The judge may wish to start with cases that have actually arisen and may
then make reasonable inferences from those cases as to what other cases
are reasonably foreseeable. The exercise must be grounded in experience
and common sense (para. 62).
The court rejected the argument that the reasonable foreseeability test is
limited to situations that are likely to arise in the day-to-day operation of
the law. The only limitation is remoteness. The correct test only concerns
situations that be reasonably arise, regardless of their likelihood (at para.
68).
A ruling that a mandatory minimum does not violate s.12 does not
5
preclude a future offender from arguing that the section is unconstitutional

as applied to his circumstances. Whether a future accused can resort to
reasonable hypotheticals to strike down a mandatory minimum depends
on whether the accused can present different circumstances and new
evidence that was not previously considered by the court. The threshold
for revisiting the constitutionality of the section will be high (at para. 71).
Contrary to the ruling in Morrissey, 2000 SCC 39, in which the majority
considered that reported cases should not be considered if the court
considered them to be marginal, reported cases may be considered
because they represent real-life conduct captured by the offence and
there is no principled reason to exclude them on the basis that they
represent an uncommon application of the offence, provided that the
relevant facts are sufficiently reported. The situation in a reported case is
not only reasonably foreseeable, it has happened (at paras. 72 and 7981).
Personal characteristic of the reasonable hypothetical offender cannot be

entirely excluded from the analysis. One cannot, however, use personal
characteristics to construct the most sympathetic and innocent case
imaginable. The inquiry must be grounded in experience and common
sense (at para. 74).
With respect to linked offences, where a mandatory minimum is predicated on

the commission of another offence or breach of another statutory provision or order, a
reasonable hypothetical has to reflect the same predicate offence or breach of the same
statutory provision or order as occurred on the facts of the case because the
seriousness of the offence that attracts the minimum sentence depends to some degree
on the nature of the predicate offence, or the nature of the conduct giving rise to the
prior order: Nur, 2013 ONCA 677, at paras. 128 and 145. Thus, a reasonable
hypothetical in respect of the minimum sentence under s.85 of the Criminal Code for
use of a firearm while committing the indictable offence of armed robbery has to involve
the offence underlying the sentence in issue and cannot involve the use of a pellet gun
to commit the offence of mischief to property, per Brown, [1994] S.C.J. No. 95, revg
[1993] M.J. No. 46 (C.A.).
The inclusion of the regulatory end of the spectrum within the scope of a
reasonable hypothetical was also supported in Smith, 1987 CanLII 64, 34 C.C.C.(3d) 97
(S.C.C.), at paras. 66-67, 113 and 12, where the broad scope of the offence of
importing a narcotic (applicable regardless of the nature or quantity of the drug)
informed the Supreme Courts determination that on reasonably hypothetical
circumstances the minimum sentence would be grossly disproportionate Nur, 2013
ONCA 677, at paras. 151-152, affd 2015 SCC 15.
Limitations on Availability of s.12 Constitutional Challenge
Standing to challenge a minimum sentence as being cruel and unusual may be
denied in the event that the constitutionality of the minimum sentence is moot because
the minimum sentence would not, in any event, be imposed. In K.(R.), 2005 CanLII
6
21092, 298 C.C.C.(3d) 232 (Ont.C.A.), where a non-custodial sentence would have
been imposed because of time served, regardless of whether s.85(4) of the Code
rendered the respondent subject to three consecutive one year minimum terms for use
of a firearm while committing an indictable offence, the Court of Appeal held that the
sentencing court erred in addressing the issue of the constitutionality of s.85(4). Doherty
J.A., on behalf of the court, stated (at para. 59):
It has been repeatedly held that courts should not decide issues of law,
particularly constitutional issues, that are not necessary to the resolution
of the matter before the court: Phillips v. Nova Scotia (Commission of
Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 at paras. 5-11.
As outlined earlier, the trial judge made it clear that regardless of whether
s. 85(4) was constitutional or not, he would have imposed exactly the
same sentence - a suspended sentence followed by probation. As the
disposition the trial judge deemed appropriate was unaffected by the
constitutionality of s. 85(4), it was wrong for the trial judge to decide the
constitutionality of the section. By introducing the constitutional issue, the
trial judge added to the complexity, cost and length of the trial proceedings
and provoked an entirely meritorious appeal by the Crown. Had the trial
judge not addressed the constitutional issue and simply determined, as he
was required to do, a fit sentence, R.K. could have been sentenced a
month earlier. Presumably, had the trial judge sentenced him a month
earlier, he would still have imposed a sentence of time served given the
trial judge's strong views of the conditions of R.K.'s pre-trial incarceration.
R.K. spent an extra month in the terrible conditions at the Don Jail
because the trial judge raised and pursued a constitutional issue that had
no effect on the sentence he ultimately would have imposed.
Similarly, the constitutionality of legislation providing for a minimum term may not
be a live issue if a sentence below the minimum would not fall within the sentencing
range fit for the particular offence/offender. In Nur, 2011 ONSC 4874, revd on other
grounds, 2013 ONCA 677, affd 2015 SCC 15, in considering a s.12 Charter challenge
to the minimum three year term for possession of a loaded prohibited firearm contrary to
s.95(1) of the Code, Code J. stated (at paras. 3-4):
The Crown responded to this Charter motion with a counter-motion of its
own, arguing that the constitutional issue was moot. The Crowns motion
alleged that the particular offence committed by Nur was so aggravated
that it would attract a sentence of greater than three years, in any event,
with or without the new mandatory minimum sentence enacted by
Parliament. The Crown therefore sought to strike or summarily dismiss the
accuseds Charter motion. See: R. v. K. (R.) 2005 CanLII 21092 (ON CA),
(2005), 198 C.C.C. (3d) 232 at para. 59 (Ont. C.A.).
As a result of this history, the four separate issues that must be decided
on the sentencing hearing are as follows:
Second, what would have been the fit and appropriate
7
sentence for this offence and this offender, prior to May 1,

2008 when the new three year mandatory minimum
sentence came into force? If that sentence would have been
three years or more, in any event, then the defence Charter
motion is only of academic interest to Nur and it should be
summarily dismissed;
Third, if the sentence under the pre-2008 regime would have
been less than three years, the Charter motion is not moot. It
must then be decided whether s. 95(2)(a)(i), which
establishes the new three year minimum sentence, is
unconstitutional;
In Chambers, 2013 ONCA 680, where the 25-year-old offender had two prior
convictions for firearms offences, a sentence of six years imprisonment was imposed
for the s.95(1) offence of possession of a loaded prohibited firearm in circumstances
where the police were investigating an anticipated shooting in high crime area and the
offender took flight and dropped a loaded handgun with a bullet in the chamber ready
for firing. In holding that it was not open to the appellant on appeal to challenge the five
year mandatory minimum under s.95(1)(a)(ii) as violating s.12 of the Charter, Cronk
J.A., on behalf of the court, stated (at para. 46):
In any event, in my view, we need not reach these constitutional issues in
this case. Regardless of the mandatory minimum sentence of five years
imprisonment established by s. 95(2)(a)(ii) of the Code, the circumstances
of these offences and this offender, as outlined by the sentencing judge,
amply justify the sentences imposed at trial. The fresh evidence filed on
appeal does not alter this conclusion. The sentencing judge made no error
in principle and the overall sentence imposed is not demonstrably unfit. In
these circumstances, it is unnecessary to consider the appellants
constitutional challenges to s. 95(2)(a)(ii) of the Code.
Constitutional exemptions and s.12 of the Charter
One preliminary issue is whether the defence must challenge the mandatory
minimum as written for all cases, or whether it may argue for a constitutional exemption
in the particular case. Put briefly, the Supreme Court of Canada has seemed to
foreclose the possibility of individual constitutional exemptions in Ferguson, below, but
there are still some potential arguments that they are available.
One of the difficult problems for defence counsel is how to address mandatory
minimum sentences and whether a sentence reduction below the statutory minimum is
possible. There have been two recent Supreme Court cases that have caused some
confusion and raised questions about the remedies that are possible. In Ferguson,
2008 SCC 6, [2008] S.C.J. No. 6, the Supreme Court held that constitutional
exemptions are not available as a remedy for a mandatory minimum sentence that
violates s.12 of the Charter. This issue had been left open in Latimer, 2001 SCC 1.
In Ferguson, above, the accused police officer shot a prisoner in the head during
a struggle. He was convicted of manslaughter with a firearm and this carried a
8
mandatory minimum sentence of four years imprisonment. The trial judge granted a
constitutional exemption from the minimum sentence on the basis that a four-year
sentence term would amount to cruel and unusual punishment. The sentencing inquiry
was shaped by a four-year mandatory minimum sentence and the only issue was
whether the sentence should be more than four years, or whether the facts of the case
were such that a four-year sentence was grossly disproportionate. The court concluded
that there was no basis for concluding that the four-year mandatory minimum sentence
prescribed by Parliament constituted cruel and unusual punishment.
The Supreme Court held that the constitutional exemption remedy was not
appropriate for a s.12 Charter violation. If the law imposing the minimum sentence was
found to be unconstitutional on the facts of a particular case, it should be declared
inconsistent with the Charter and of no force and effect under s.52 of the Constitution
Act. The court concluded that the arguments for a constitutional exemption under
s.24(1) of the Charter were outweighed and undermined by counter-considerations.
While the availability of constitutional exemptions for mandatory minimum sentencing
laws had not been conclusively decided, the weight of authority is against them. The
court also held that Parliaments intention in passing mandatory minimum laws was to
remove judicial discretion, so to allow courts to grant constitutional exemptions would
contradict Parliaments intent and represent an inappropriate intrusion. The Supreme
Court also observed that s.52(1) of the Constitution Act, 1982 and s.24(1) of the Charter
serve different remedial purposes. Section 52(1) provides a remedy for laws that violate
Charter rights in purpose or effect. Section 24(1) of the Charter provides a remedy for
government acts that violate Charter rights. Finally, the Supreme Court observed that
constitutional exemptions for mandatory minimum sentence laws buy flexibility at the
cost of undermining the rule of law and the values that underpin it: certainty,
accessibility, intelligibility, clarity and predictability. Allowing unconstitutional laws to
remain on the books deprived Parliament of certainty as to the constitutionality of the
law and the opportunity to remedy it. The court concluded that if a law providing for a
mandatory minimum sentence is found to violate the Charter, it should be declared of
no force and effect.
In Nasogaluak, [2010] S.C.J. No. 6, [2010] A.C.S. no 6, the accused was
charged with impaired and flight from police. The police received an anonymous tip
about a possible impaired driver and identified the accused as the suspect. A highspeed pursuit followed. Once stopped, the accused appeared to begin exiting his
vehicle which prompted one of the officers to pull his revolver and point it at the
accused. The officer then approached the accused and ultimately struck him two times
in the head while he was still in his car. Once removed from the car, the accused was
placed on the ground and there he was struck again in the head. Another officer then
struck the accused in the back two times ultimately fracturing one of his ribs which led to
his lung being punctured. The accused was later taken to the police station where he
appeared to be in pain but never asked to be brought to the hospital. After his release,
the accused attended at the hospital where he underwent emergency surgery.
The accused pleaded guilty but also brought a motion pursuant to ss.7 and 11(d)
of the Charter alleging that the police conduct violated his rights under those sections.
He sought a stay of proceedings, or in the alternative, a reduced sentence. The trial
9
judge noted, inter alia, that the police failed to report the force used, that they had aimed
a firearm at the accused and failed to provide medical assistance to the accused.
Ultimately the trial judge found a violation of ss.7 and 11(d). The trial judge, however,
did not grant a stay but instead granted a conditional discharge.
On appeal to the Supreme Court, LeBel J. (writing for a unanimous court) first
considered whether the police had used excessive force. While noting that [p]olice
actions should not be judged against a standard of perfection and that police engage
in dangerous and demanding work and often have to react quickly to emergencies,
LeBel J. held that the trial judges conclusion that the police had used excessive force
should be upheld. Turning to the issue of s.7, LeBel J. held that the trial judges
ultimate conclusion should not be disturbed. He stated the following (at para. 38):
[T]he excessive use of force by the police officers, compounded by the
failure of those same officers to alert their superiors to the extent of the
injuries they inflicted on Mr. Nasogaluak and their failure to ensure that he
received medical attention, posed a very real threat to Mr. Nasogaluaks
security of the person that was not in accordance with any principle of
fundamental justice.
Turning to the issue of sentencing in light of that breach, LeBel J. held that a
sentence cannot be fit if it does not conform to values of the Charter. Accordingly, a
Charter violation is something which may have relevance at the sentencing stage.
Justice LeBel stated (at para. 47):
The sentencing principles described above must be understood and
applied within the overarching framework of our Constitution. Thus it may,
at times, be appropriate for a court to address a Charter breach when
passing sentence. This may be accomplished without resort to s. 24(1) of
the Charter, given the courts broad discretion under ss. 718 to 718.2 of
the Code to craft a fit sentence that reflects all the factual minutiae of the
case.
Moreover, LeBel J. concluded (at para. 55) that a sentencing judge may take
into account police violence or other state misconduct while crafting a fit and
proportionate sentence, without requiring the offender to prove that the incidents
complained of amount to a Charter breach. With respect to the trial judges decision to
grant a sentence which was less than the statutory minimum, LeBel J. noted that the
Court of Appeal had overturned that decision and imposed the minimum required by
statute. LeBel J. agreed with that decision noting that the Court of Appeal was able to
impose a fit sentence without resort to s.24(1). However, LeBel J. offered the following
final comment (at para. 64):
I do not foreclose, but do not need to address in this case, the possibility
that, in some exceptional cases, sentence reduction outside statutory
limits, under s. 24(1) of the Charter, may be the sole effective remedy for
some particularly egregious form of misconduct by state agents in relation
to the offence and to the offender. In that case, the validity of the law
would not be at stake, the sole concern being the specific conduct of those
state agents.
10
The court was careful not to overstate the breadth of the trial judges remedial
authority under s.24(1) (at para. 38):
While we find that a reduction in sentence is an available remedy under s.
24(1) in some circumstances, it is a remedy to be used sparingly and as a
last resort in extraordinary cases. This interpretation respects the
provisions in the Criminal Code which set out the objectives and principles
of sentencing.
This appears to leave the door open to requesting a sentence reduction in
extraordinary cases. In Kent Roach, Constitutional Remedies in Canada (Toronto:
Canada Law Book, 2010), at 9-54, the author notes that Nasogaluak is in tension with
Ferguson where the court appeared to reject the availability of constitutional exemptions
as a s.24(1) remedy and seemed to hold that the only remedy available with respect to
a mandatory sentence was invalidation under s.52(1). He describes it as odd that the
court did not reflect on Ferguson when it held open the possibility of a sentence
reduction under s.24(1) that goes below the mandatory minimum. However, Professor
Roach also notes that elsewhere in the judgment, the Supreme Court in Nasogaluak,
referred to Ferguson when it stated that absent a declaration of unconstitutionality,
minimum sentences must be ordered where so provided by the Code (at 9-54).
Professor Roach recommends that an accused who faces a statutory minimum and
seeks a sentence below that minimum should challenge the statutory minimum under
both s.24(1) and s.52(1).
Recently in Mernagh, 2011 ONSC 2121, [2011] O.J. No. 1669, revd 2013 ONCA
67, the trial judge discussed the possibility of a remedy under s.24(1) of the Charter
when there is a suspended declaration. The accused was charged with production of
marihuana. He cultivated his own marihuana to provide relief from his fibromyalgia,
scoliosis, seizures and depression. The accused was unable to find a doctor to sign his
declaration in order to obtain a licence within the framework set out in the Marihuana
Medical Access Regulations [MMAR]. The court found that the legislative framework
violated s.7 of the Charter and was not saved by s.1. The appointment of doctors as
gatekeepers under the MMAR in a manner that required them to disregard their
professional duties and opened them up to liability was neither the only, nor the least
intrusive means open to Parliament to fulfill its objective of providing a medical
exemption for medicinal marihuana use in a manner that promotes health, safety and
effective drug control.
The court stated the following (at paras. 340-344):
As for a constitutional exemption for Mr. Mernagh himself, the Crown
argues on the basis of the Ferguson decision that constitutional
exemptions are no longer a valid constitutional remedy. This argument is
only partially correct. The court in Ferguson ousted the possibility of a
constitutional exemption for a violation of s.12 of the Charter due to a
mandatory minimum sentence. The ratio of the case is quite specific in
this regard and I do not read the case as overruling Corbiere v. Canada
(Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 [Corbiere].
11
In Corbiere the Court affirmed the principle from Reference re

Remuneration of Judges of the Provincial Court of Prince Edward Island,
[1998] 1 S.C.R. 3, at para. 20, that, In general, litigants who have brought
forward a Charter challenge should receive the immediate benefits of the
ruling, even if the effect of the declaration is suspended (at para. 122).
Ferguson was concerned with the situation that arises in the face of a
mandatory minimum sentence which in most circumstances is
constitutional but is found to be unconstitutional on the facts of a particular
accused. In such circumstances, it was argued that rather than declare the
offence in question to be of no force and effect, the court ought to grant
the particular offender a constitutional exemption from the mandatory
minimum sentence. The Court in Ferguson rejected this argument in part
because it would effectively negate s. 52(1) and undermine the intent of
Parliament in creating the statutory minimums.
The concerns in Ferguson are not present in the entirely different scenario
of granting an interim constitutional exemption to an individual who has
successfully challenged the constitutionality of legislation during the
suspension of a declaration of invalidity. In my view, the Ferguson
decision does not preclude the availability of a s. 24(1) remedy in
conjunction with a remedy under s. 52(1). Rather, it affirms the Courts
decision in Schachter, [[1992] 2 S.C.R. 679] at para. 89, that in rare cases
where legislation is declared unconstitutional but the declaration is
suspended, a remedy under s. 24(1) may be available in conjunction with
the suspended declaration under s. 52(1) where it is necessary to provide
the claimant with an effective remedy.
Accordingly, I see no reason why Mr. Mernagh should not receive the
immediate benefit of this ruling by way of an interim constitutional
exemption. [Emphasis added]
The Ontario Court of Appeal held the Superior Court of Justice had erred by
wrongly interpreting the prior case law as establishing a right to medical marijuana; by
relying on anecdotal evidence and making findings not supported by the record to
conclude that Mr. Mernagh and some witnesses qualified for exemptions under the
MMAR; and by finding that the MMAR operate in such a way as to make medical
exemptions practically unavailable, rendering the defence provided by the MMAR
illusory. A defence is not illusory simply because it is narrow and dependent on third
parties, such as physicians. The court held that no Charter remedies were available to
the accused, but noted that this was a test case and a Crown appeal, and suggested
the Crown might afford the accused a chance to obtain a medical exemption before
proceeding with the charge. The Court of Appeal did not address the issue of
constitutional exemptions.
In Nasogaluak, 2007 ABCA 339, [2007] A.J. No. 1217, varying [2005] A.J. No.
1741, affd on other grounds, 2010 SCC 6, the Court of Appeal held that the trial judge
erred in granting the accused a constitutional exemption in regard to an impaired driving
conviction where a mandatory minimum fine should have been imposed. The trial judge
12
imposed a conditional discharge as a remedy for the police violating ss.7 and 11(d) of
the Charter by using excessive force against the accused. The trial judge did not find
that s.12 had been breached as a result of the police neglecting to take the accused for
medical treatment.
The recent judgment in Nur, 2013 ONCA 677, held that no individual exemptions
are available following Ferguson, above, (at para. 77):
If a minimum penalty fails either the particularized or reasonable
hypothetical component of the gross disproportionality inquiry, the
provision, assuming it cannot be "saved" by s. 1 of the Charter, will be
found to violate s. 12. After some doubt, it is now established that if a
mandatory minimum sentence violates s. 12, the remedy lies under s. 52
of the Constitution Act, 1982. The offending provision to the extent that it
is inconsistent with s. 12 will be of "no force or effect" and will be struck
down. A more narrow case-specific remedy in the form of a constitutional
exemption applicable to the individual accused is not an available remedy:
Ferguson, at paras. 34-74. [Emphasis added]
Jurisprudence
(A) Credit for Pre-Trial Custody
One approach which has to some extent protected mandatory minimum
sentences against attacks under s.12 of the Charter is to allow for time spent in pre-trial
custody to be deducted from the minimum sentence.
The Ontario Court of Appeal has held that the minimum four-year sentence for
offence of robbery with a firearm, under s.344(a) of the Criminal Code (as it then was),
does not violate s.12 of the Charter: McDonald (1998), 127 C.C.C.(3d) 57, 17 C.R.(5th)
1, 40 O.R.(3d) 641, 111 O.A.C. 25 (C.A.). Moreover, the Court of Appeal found that
whether a constitutional exemption is available as a remedy in other circumstances, it
is not available in this province where a minimum definite sentencing provision is
attacked under s.12 of the Charter (at para. 86). However, the Court of Appeal also
held that the time spent in pre-trial custody by an offender should be credited towards
the minimum sentence, pursuant to s.719(3) of the Criminal Code. Section 719(3)
provides that: In determining the sentence to be imposed on a person convicted of an
offence, a court may take into account any time spent in custody by the person as a
result of the offence. The Court of Appeal suggested that the failure to take into
account pre-trial custody could, in certain circumstances, lead to a sentence which
violates s.12 of the Charter. The Court of Appeal stated (at paras. 82-83):
Neither pretrial custody nor a minimum four year sentence alone would, in
and of themselves, amount to gross disproportionality. However, I can
envisage reasonable hypothetical circumstances where the combination of
the two factors could result in gross disproportionality, if the sentencing
judge is not permitted to make allowance for pre-sentence custody.
Those are cases of a lesser offender, such as this appellant, or a person
who is merely a party to the offence, where the four year minimum is
13
excessive, but standing on its own, not grossly disproportionate. If the

Code precludes the judge from giving credit for pre-sentence custody, a
lengthy period of pre-sentence custody could push the sentence into the
range of the grossly disproportionate. If the sentencing judge is not
allowed to take into account pre-sentence custody, the effect of the
minimum sentence is that, in some cases, a violation of s. 12 will certainly
occur. It is the statute, not the judges sentence, that is in violation of the
Charter if the statute precludes the judge from giving credit for presentence custody.
However, as I have said, the sentencing court does have the power to
take into account pre-sentence custody, even if that would result in
reduction of the sentence imposed below four years. In my view, any
reasonable hypothetical that would outrage standards of decency
necessarily involves a substantial element of pre-sentence custody. Since
properly interpreted, s. 344(a) allows the court to take pre-sentence
custody into account and reduce the sentence imposed, I would hold that
the section does not violate s. 12 of the Charter. Accordingly, it is
unnecessary to consider whether the section can be saved by s. 1 of the
Charter.
In another case of robbery where the minimum four-year sentence was imposed,
the Supreme Court of Canada held that time spent in pre-trial custody can be taken into
account where a minimum sentence is imposed, even if it appears to reduce the
sentence below the minimum provided by law: Wust, [2000] S.C.J. No. 19, 143
C.C.C.(3d) 129, 32 C.R.(5th) 58, (S.C.C.) (also see: Arthurs, [2000] S.C.J. No. 2, 143
C.C.C.(3d) 149 (S.C.C.); Arrance, [2000] S.C.J. No. 21, 143 C.C.C.(3d) 149 (S.C.C.)).
In Wust, above, the Supreme Court stated (at paras. 42):
If this Court were to conclude that the discretion provided by s. 719(3) to
consider pre-sentencing custody was not applicable to the mandatory
minimum sentence of s. 344(a), it is certain that unjust sentences would
result. First, courts would be placed in the difficult situation of delivering
unequal treatment to similarly situated offenders: for examples, see
McDonald [(1998), 127 C.C.C. (3d) 57], at pp. 80-81. Secondly, because
of the gravity of the offence and the concern for public safety, many
persons charged under s. 344(a), even first time offenders, would often be
remanded in custody while awaiting trial. Consequently, discrepancies in
sentencing between least and worst offenders would increase, since the
worst offender, whose sentence exceeded the minimum would benefit
from pre-sentencing credit, while the first time offender whose sentence
would be set at the minimum, would not receive credit for his or her presentencing detention. An interpretation of s. 719(3) and s. 344(a) that
would reward the worst offender and penalize the least offender is surely
to be avoided.
While the Supreme Court, in Wust, above, did not consider the constitutionality of
the minimum four-year sentence under s.12 of the Charter, it did suggest that minimum
14
sentences could sometimes be grossly disproportionate (at paras. 18-22):

Mandatory minimum sentences are not the norm in this country, and they
depart from the general principles of sentencing expressed in the Code, in
the case law, and in the literature on sentencing. In particular, they often
detract from what Parliament has expressed as the fundamental principle
of sentencing in s. 718.1 of the Code: the principle of proportionality.
Several mandatory minimum sentences have been challenged under s. 12
of the Charter, as constituting cruel and unusual punishment: see, for
example, R. v. Smith, [1987] 1 S.C.R. 1045, R. v. Goltz, [1991] 3 S.C.R.
485, and Morrisey, supra [(1998), 124 C.C.C. (3d) 38 (N.S.C.A.)].
On some occasions, a mandatory minimum sentence has been struck
down under s. 12, on the basis that the minimum prescribed by law was,
or could be, on a reasonable hypothetical basis, grossly disproportionate
to what the circumstances called for. See for example Smith [ [1987] 1
S.C.R. 1045], striking down s. 5(2) of the Narcotic Control Act; Bill (1998),
13 C.R. (5th) 125 (B.C.S.C.), striking down the four-year minimum
sentence for manslaughter with a firearm under s. 236(a) of the Code; R.
v. Leimanis, [1992] B.C.J. No. 2280 (QL) (Prov. Ct.), in which the s.
88(1)(c) minimum sentence of the B.C. Motor Vehicle Act for driving under
a s. 85(a) prohibition was invalidated; and R. v. Pasacreta, [1995] B.C.J.
No. 2823 (QL) (Prov. Ct.), where the same penalty as in Leimanis for
driving under a s. 84 prohibition was also struck down.
In other cases, courts have fashioned the remedy of a constitutional
exemption from a mandatory minimum sentence, thereby upholding the
enactment as valid while exempting the accused from its application: see
R. v. Chief (1989), 51 C.C.C. (3d) 265 (Y.T.C.A.), and R. v. McGillivary
(1991), 62 C.C.C. (3d) 407 (Sask. C.A.). Finally, in some of the cases
where the courts have upheld a minimum sentence as constitutionally
valid, it has been noted that the mandatory minimum sentence was
demonstrably unfit or harsh in the case before the court. See, for
example, McDonald [(1998), 127 C.C.C. (3d) 57], at p. 85, per Rosenberg
J.A., and R. v. Hainnu, [1998] N.W.T.J. No. 101 (QL) (S.C.), at para. 71.
Even if it can be argued that harsh, unfit sentences may prove to be a
powerful deterrent, and therefore still serve a valid purpose, it seems to
me that sentences that are unjustly severe are more likely to inspire
contempt and resentment than to foster compliance with the law. It is a
well-established principle of the criminal justice system that judges must
strive to impose a sentence tailored to the individual case: R. v. M.C.A.,
[1996] 1 S.C.R. 500, at para. 92, per Lamer C.J.; R. v. Gladue, [1999] 1
S.C.R. 688, at para. 93, per Cory and Iacobucci JJ.
Consequently, it is important to interpret legislation which deals, directly
and indirectly, with mandatory minimum sentences, in a manner that is
consistent with general principles of sentencing, and that does not offend
the integrity of the criminal justice system. This is entirely possible in this
15
case, and, in my view, such an approach reflects the intention of

Parliament that all sentences be administered consistently, except to the
limited extent required to give effect to a mandatory minimum.
The Supreme Court of Canada reaffirmed the principle that pre-trial custody may
be considered in regard to mandatory minimum sentences in Morrisey (2000), 148
C.C.C.(3d) 1, 36 C.R.(5th) 85 (S.C.C.). Here, the Supreme Court held that the four-year
mandatory minimum sentence provided by s.220(a) of the Criminal Code for criminal
negligence causing death with a firearm did not violate s.12 of the Charter.
(B) Consecutive Sentences
The principle of proportionality which is well-recognized in the common law and
is now codified in the Criminal Code under s.718.1 provides that: A sentence must be
proportionate to the gravity of the offence and the degree of responsibility of the
offender. The Supreme Court of Canada, in M.(C.A.) (1996), 105 C.C.C.(3d) 327, 46
C.R.(4th) 269, 194 N.R. 321 (S.C.C.), affirmed that the quantum of sentence should be
commensurate with the gravity of the offences committed and the moral
blameworthiness of the offender (at para. 40) and that consecutive sentences for
multiple offences should not cumulatively exceed the overall culpability of the offender
(at para. 42). However, the Supreme Court also concluded that there are no fixed
ceilings or caps on numerical sentences under the Criminal Code (at para. 71). Thus,
the Supreme Court held that the majority of the Court of Appeal had erred in deciding to
reduce the sentence on the basis of a judicially-created rule that fixed-term cumulative
sentences should not exceed 20 years, barring special circumstances. This rule was
created because an offender sentenced to a fixed-term of 20 years or more would be
eligible for parole at a later date than an offender sentenced to life imprisonment. The
Supreme Court drew a clear line between the sentencing process and the parole
process. According to the Supreme Court, the Corrections and Conditional Release Act
does not restrict the sentencing discretion of trial judges under the Criminal Code.
Still, the Supreme Court noted (at para. 74) that: After a certain point, the
utilitarian and normative goals of sentencing will eventually begin to exhaust themselves
once a contemplated sentence starts to surpass any reasonable expectation of the
offenders remaining natural life span. The Supreme Court stated (at para. 41):
Within broader parameters, the principle of proportionality expresses itself
as a constitutional obligation. As this court has recognized on numerous
occasions, a legislative or judicial sentence that is grossly
disproportionate, in the sense that it is so excessive as to outrage
standards of decency, will violate the constitutional prohibition against
cruel and unusual punishment under s. 12 of the Charter. See Smith,
supra, at p. 1072 S.C.R.; R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193;
111 A.R. 161, at p. 724 S.C.R.; R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R.
1; 5 B.C.A.C. 161; 11 W.A.C. 161; 67 C.C.C.(3d) 481; 7 C.R.R.(2d) 1; 8
C.R.(4th) 82; 61 B.C.L.R.(2d) 145, at pp. 498-499 S.C.R. However, as I
noted in Smith, at p. 1072, [w]e should be careful not to stigmatize every
disproportionate or excessive sentence as being a constitutional violation,
16
and thus the review of the proportionality of sentences should normally be

left to the usual sentencing appeal process directed at the fitness of
sentence.
In the context of consecutive sentences, this general principle of
proportionality expresses itself through the more particular form of the
totality principle. The totality principle, in short, requires a sentencing
judge who orders an offender to serve consecutive sentences for multiple
offences to ensure that the cumulative sentence rendered does not
exceed the overall culpability of the offender. As D.A. Thomas describes
the principle in Principles of Sentencing (2nd Ed. 1979), at p. 56:
The effect of the totality principle is to require a sentencer
who has passed a series of sentences, each properly
calculated in relation to the offence for which it is imposed
and each properly made consecutive in accordance with the
principles governing consecutive sentences, to review the
aggregate sentence and consider whether the aggregate
sentence is just and appropriate.
Clayton Ruby articulates the principle in the following terms in his treatise,
Sentencing, supra, at pp. 44-45:
The purpose is to ensure that a series of sentences, each
properly imposed in relation to the offence to which it relates,
is in aggregate just and appropriate.
A cumulative
sentence may offend the totality principle if the aggregate
sentence is substantially above the normal level of a
sentence for the most serious of the individual offences
involved, or if its effect is to impose on the offender a
crushing sentence not in keeping with his record and
prospects.
Krug (1982), 7 C.C.C.(3d) 324 (Ont.Dist.Ct.), affd 7 C.C.C.(3d) at 337 (Ont.C.A.), affd
on other grounds 21 C.C.C.(3d) 193, 21 D.L.R.(4th) 161, [1985] 2 S.C.R. 255, 48
C.R.(3d) 97 (S.C.C.)
Section 83 of the Criminal Code (now s.85) provides for a minimum sentence of
one year imprisonment for a conviction for using a firearm while committing or
attempting to commit an indictable offence. This minimum one-year sentence is to be
served consecutively to any other punishment imposed for any offence arising out of the
same series of events. The provision for a mandatory minimum consecutive sentence
does not constitute cruel and unusual punishment.
Leong (February 14, 1984, B.C.S.C., Mackoff J.), affd without reference to this point 13
W.C.B.(2d) 389 (B.C.C.A.)
This case affirmed that the mandatory minimum sentence of one year
imprisonment to be served consecutively to any other punishment imposed for offences
17
arising out of the same series of events as the use of a firearm while committing or
attempting to commit an indictable offence does not violate s.12 of the Charter.
Wheatle (1993), 86 C.C.C.(3d) 378, 67 O.A.C. 373 (C.A.)
Section 85(2) of the Criminal Code, which provides that any penalty imposed
under subsection (1) for using a firearm in committing an indictable offence shall be
served consecutively to any punishment imposed for that underlying indictable offence,
does not violate s.12. The court followed Krug, above, and Spark (1987), 27 C.R.R. 28
(Ont.C.A.), where the court stated that s.85 (then s.83) did not violate s.12 of the
Charter.
Mackie v. Drumheller Institution (1994), 163 A.R. 81, [1995] 2 W.W.R. 369 (Q.B.),
appeal dismissed (1996), 111 C.C.C.(3d) 334, 187 A.R. 385, [1997] 2 W.W.R. 8 (C.A.)
The Court of Appeal saw no merit to the proposition that serving the Canadian
sentence constituted cruel and unusual punishment. Assuming, without deciding, that it
were proper to consider the combined affect of the Canadian and American sentences,
the Court of Appeal agreed with the lower court judge that requiring the accused to
serve his Canadian sentence plus the 12 years served in United States for the offences
committed there, was not so excessive as to outrage the standards of decency.
Beauchamp, [2002] J.Q. no 4593 (S.C.)
The court found that s.467.1 of the Criminal Code, which created the offence of
participating in gang activities, did not violate s.12 of Charter by requiring the court to
impose a consecutive sentence. Section 467.1 has since been replaced by new
provisions creating the offence of
participating in the activities of a criminal
organization. Presently, s.467.14 provides that a sentence imposed on a person for a
criminal organization offence shall be served consecutively to any other punishment
imposed on the person for an offence arising out of the same event or series of events
and to any other sentence to which the person is subject at the time the sentence is
imposed on the person for an offence under any of those sections.
(C) Firearm Offences
In the context of a firearms offence, the likelihood that the sentencing range for
an offence/offender or a reasonably hypothetical offence/offender would encompass a
sentence as long as, or relatively close to the minimum term, will be greater where the
criminality of the particular offence is elevated by it having been committed in
combination with another serious offence or by the presence of other aggravating
circumstances including: (1) the firearm being loaded; (2) the immediate accessibility of
the firearm on the accuseds person; (3) the carrying of the firearm in a public place; (4)
taking flight from the police while carrying the firearm; (5) the serial number of the
firearm being defaced; (5) the possession of the firearm being incidental to criminal drug
activity, including personal possession; (6) the accessibility of the firearm to children; (7)
18
possession of the firearm while using drugs/alcohol; (8) obtaining the firearm from a
drug dealer; (9) possession of an illegal high capacity magazine capable of causing
significant carnage; (10) discarding a firearm in a public location where it may expose
others to harm; (11) the prevalence of firearm offences in the community/locality; and
(12) the possession not being an impulsive, spur of the moment act, but planned and
deliberate: Curry, 2013 ONCA 420 (Endorsement), at para. 24; Scarlett, 2013 ONSC
562, at para. 16; P.(T.A.), 2013 ONSC 797, at paras. 20-22; Lawson, 2012 ONSC 1305,
at para. 16; James, 2011 ONSC 241, at paras. 23-24; Gobire, 2013 ONSC 3073, at
para. 22; Paryniuk, 2013 ONCJ 443, at paras. 15-18; Brown, 2013 ONSC 4230, at para.
51; Faria, 2013 ONCJ 119, at paras. 68-76; Crevier, 2013 ONSC 2630, at paras. 50-58.
However, the fact that the firearm is loaded may not increase the gravity of the offence
of possession of a loaded firearm: Mullings, 2012 ONSC 1938, at para. 42.
Use of Firearm
Section 85 of the Criminal Code imposes an additional consecutive punishment
upon those accused who use firearms while committing or attempting to commit an
indictable offence or during flight after committing or attempting to commit an indictable
offence. Section 85(1) of the Criminal Code renders s.85 inapplicable to certain
offences which themselves provide for a mandatory minimum four-year sentence of
imprisonment where a firearm is used in the commission of the offence: criminal
negligence causing death (s.220); manslaughter (s.236); attempted murder (s.239);
causing bodily harm with intent firearm (s.244); sexual assault with a weapon (s.272);
aggravated sexual assault (s.273); kidnapping (s.279); hostage taking (s.279.1);
robbery (s.344); and extortion (s.346).
In a case decided before the mandatory minimum four-year sentence for robbery
came into being, the Supreme Court of Canada held that s.85 of the Criminal Code was
constitutionally valid where the underlying offence is robbery: Brown (1994), 173 N.R.
317, 93 C.C.C.(3d) 97, 34 C.R.(4th) 24 (S.C.C.), varying (1993), 80 C.C.C.(3d) 275, 19
C.R.(4th) 140, 83 Man.R.(2d) 216, 36 W.A.C. 216 (C.A.). Here, the accused was
convicted of three counts of robbery, two counts of using a disguise with intent to
commit an offence and three counts of using a firearm in the commission of an
indictable offence. The Court of Appeal dismissed the accuseds appeal from the
overall sentence of 13 years imposed at trial. However, applying the sentencing
principles which require the imposition of consecutive sentences where the offences are
successive and unrelated (in this case, the robberies), the Court of Appeal recalculated
the sentences as follows: 3 years for first two robbery charges, 4 years for third robbery
charge, to be consecutive to each other; 3 years for each firearms offence, to be served
concurrently to each other but consecutively to sentences for robbery; and the
sentences for the disguise charges to be served concurrently to each other and to the
robbery charges.
The accused argued that s.85 resulted in cruel and unusual treatment or
punishment under s.12 of the Charter by mandating minimum and consecutive
sentences upon conviction. The Court of Appeal held that a 13-year sentence for these
offences and this offender did not result in a prima facie determination that s.12 had
19
been breached. The Court of Appeal stated that it was necessary to determine whether
a Charter challenge as to the validity of s.85 on the grounds that it would require the
imposition of a gross disproportionate sentence in reasonable hypothetical
circumstances. The Court of Appeal gave as an example of such a case, one in which
a youthful or first offender was charged with a series of 10 or 20 property offences while
using a pellet gun. Section 85 removed any burden from the Crown to prove that the
offence involved a danger to the public so that it could include within its ambit the
offender who used any kind of firearm in the commission of any kind of indictable
offence directed against property, animals, or persons. Even if the element of danger to
the public is present in the commission of such an offence, the imposition of a 10 or 20year sentence of imprisonment on a first offender would be grossly disproportionate.
Therefore, the legislation overreached its legitimate objective and was not a reasonable
limit within the meaning of s.1 of the Charter.
The Court of Appeal stated that it was not the provision for mandatory minimum
sentences nor the provision for multiple convictions that violated s.12. A mandatory
additional penalty which may be either a minimum of one or three years imprisonment
when firearms were used in the commission of an indictable offence may be onerous in
a particular case but was not grossly disproportionate so as to offend s.12. Instead, it
was the requirement that jail terms be imposed and that they be served consecutively
both to the sentences imposed for the indictable offences and to each other that
violated s.12. Therefore, in order to preserve Parliaments objective, the Court of
Appeal did not rule that the entire section was unconstitutional, but instead struck all
words following or series of events from what is now s.85(4), striking down only that
portion of s.85 that required that the minimum sentences for multiple firearms offences
be served consecutively to each other.
The Supreme Court of Canada, in Brown, held as follows (at paras. 1-2):
At issue in this appeal is the constitutionality of s.85 of the Criminal Code,
R.S.C. 1985, c. C-46. We are all of the view that the [Crown] appeal
should be allowed on the basis of the principles recently decided by the
court in R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11
W.A.C. 161; 8 C.R.(4th) 82 [67 C.C.C.(3d) 481] (S.C.C.). In Goltz, the
majority of the court held that a two-stage test should be employed to
evaluate the constitutionality of a legislative sentencing provision under
s.12 of the Canadian Charter of Rights and Freedoms. The first stage is
to view the provision in question from the perspective of the accused, and
on the facts of this case, which involved three armed robberies using a
shotgun, the provision clearly does not offend s.12.
The second stage involves considering reasonable hypotheticals involving
the offence underlying the sentence in the case before the court. Here,
the Attorney General of Manitoba limited its defence of s.85 to the case
which concerns armed robbery as the underlying offence. As such, the
hypothetical proposed by the respondent relating to mischief is not a
reasonable hypothetical envisioned by Goltz. We agree with these
submissions and would therefore find no violation of s.12 of the Charter.
20
The Ontario Court of Appeal held that the minimum four-year sentence for
robbery with a firearm (s.344(a)) does not violate s.12 of the Charter: McDonald (1998),
127 C.C.C.(3d) 57, 17 C.R.(5th) 1, 40 O.R.(3d) 641, 111 O.A.C. 25 (C.A.). Moreover,
the Court of Appeal found that whether a constitutional exemption is available as a
remedy in other circumstances, it is not available in this province where a minimum
definite sentencing provision is attacked under s.12 of the Charter (at para. 86).
However, the Court of Appeal also held that the time spent in pre-trial custody by an
offender should be credited towards the minimum sentence, pursuant to s.719(3) of the
Criminal Code. The Court of Appeal suggested that the failure to take into account pretrial custody could, in certain circumstances, lead to a sentence which violates s.12 of
the Charter. (Agreement with this approach can be found in Wust, [2000] S.C.J. No. 19,
143 C.C.C.(3d) 129, 32 C.R.(5th) 58, but the Supreme Court of Canada did not consider
the constitutionality of the minimum four-year sentence.)
One might note that, in Madeley, [2002] O.J. No. 2410, 160 O.A.C. 346, (C.A.),
application for leave to appeal dismissed (without reasons) [2003] S.C.C.A. No. 50
(S.C.C.), the Ontario Court of Appeal again suggested that constitutional exemptions
were not available. But this case did not involve a consideration of s.12 of the Charter.
The accused, who was convicted of first degree murder, argued that a number of
Charter violations by the police should have resulted in a stay of proceedings or in a
reduction in the mandatory parole ineligibility period. In its oral judgment, the Court of
Appeal rejected the latter remedy as follows (at para. 25):
With respect to this issue, the appellant relies on the same factual
background as for his argument for a stay of proceedings. It is conceded
that in R. v. Kelly (1990), 59 C.C.C. (3d) 497 (Ont. C.A.) this court held
that stand-alone constitutional exemptions from an otherwise valid
mandatory minimum sentence are not available. See also R. v. McDonald
(1998) 127 C.C.C. (3d) 57 (Ont. C.A.) at 89-91 and Corbire v. Canada
Minister of Indian and Northern Affairs (1999) 173 D.L.R. (4th) 1 (S.C.C.)
at 19. These decisions are determinative of this issue. We do not accept
that this state of the law has been changed by the subsequent decision of
the Supreme Court of Canada in R. v. Latimer (2001), 150 C.C.C. (3d)
129 (S.C.C.).
The Quebec Court of Appeal upheld the constitutionality of the minimum fouryear sentence for robbery under s.344(a) in Lapierre (1998), 123 C.C.C.(3d) 332, 15
C.R.(5th) 283, [1998] J.Q. no 91 (C.A.). Here, the accused fired a shot at the ceiling
while robbing a store and pointed the firearm at a number of people. She had no
criminal record, was raising a three-year-old child by herself, and was taking care of a
handicapped aunt. The Court of Appeal considered the minimum sentence in relation to
the specific circumstances of the accused as well as in relation to reasonable
hypothetical circumstances.
Justice Gonthier, for the majority of the Supreme Court of Canada in Morrisey,
[2000] S.C.J. No. 39, 148 C.C.C.(3d) 1, 36 C.R.(5th) 85, held that the four-year
minimum sentence provided by s.220(a) of the Criminal Code for criminal negligence
causing death with a firearm did not violate s.12 of the Charter. However, time spent in
21
pre-trial custody should be taken into account, even if it reduces the sentence imposed
below the minimum four years.
Morrisey, while holding a rifle he knew to be loaded and while under the influence
of alcohol and prescription drugs, attempted to get the attention of his friend who was
asleep on the top bunk of a bed. He lost his footing and fell. The rifle discharged and a
bullet struck the friend in the head, killing him instantly. There was no evidence that
Morrisey intended to aim the gun at his friend.
Justice Gonthier pointed out that criminal negligence under s.219 of the Criminal
Code requires proof of wanton or reckless disregard for the lives or safety of other
people. The Crown must establish that the accused acted in a manner that is a marked
departure from the standard employed by a reasonable person. To obtain a conviction
for the offence of criminal negligence causing death under s.220, the Crown must prove
that wanton or reckless disregard caused the death of another person. Persons who
merely cause death unintentionally are not caught by the offence. Moreover, in order to
attract a four-year minimum sentence under s.220(a), a firearm must have been used in
the commission of the offence. Thus, the Crown must meet a very high threshold in
order to prove criminal liability in such cases.
Since Justice Gonthier determined that the minimum sentence was not cruel and
unusual punishment for the particular accused in this case and he addressed two
reasonable hypothetical situations. The first hypothetical situation involves an individual
who plays with a gun believing that it will not discharge. He aims it at another person
and discharges it, killing someone. The second hypothetical situation involves reckless
hunting whereby the accused spots an object in the woods but is unsure what the object
is or forms a completely unreasonable belief that the object is game. The object is
actually another human being. The accused fires the gun and kills the other person. In
both of these hypotheticals, Justice Gonthier concluded that a four-year imprisonment
would not be cruel and unusual punishment.
Justice Gonthier stated that Parliament intended the four-year minimum sentence
to send a message to people who might fall under the two hypotheticals that failure to
be careful will attract severe criminal penalties. The sentence represents societys
denunciation, provides retributive justice, and serves a general deterrent function.
Justice Gonthier found it unnecessary to consider the issue of constitutional
exemptions, especially as Morrisey had conceded that the four-year minimum sentence
would not be grossly disproportionate for him personally.
Justice Arbour, in dissent with Justice McLachlin, held that the four-year
minimum sentence was not so excessive or grossly disproportionate as to violate s.12
of the Charter for the accused in the particular circumstances of this case. However,
Justice Arbour stated that the offence is so fact-driven that it could not be concluded
that the four-year minimum sentence is not grossly disproportionate for any reasonable
hypothetical offender. Justice Arbour, therefore, seemed to suggest that a constitutional
exemption may be available in some future cases where the s.220(a) offence is
charged. Such cases might include ones where an abused woman kills her abuser with
a gun or where a police officer or security guard negligently kills someone with a firearm
in the course of his or her duties.
22
The New Brunswick Court of Appeal upheld the constitutionality of the minimum
4-year sentence for discharging a firearm with intent to endanger life under s.244(b):
Roberts (1998), 125 C.C.C.(3d) 471, 199 N.B.R.(2d) 387, 510 A.P.R. 387 (C.A.). Here,
the accused did not argue that s.244(a) infringed s.12 on the basis of reasonable
hypothetical circumstances. He grounded his challenge exclusively on the first
component of the test set out in Smith (1987), 34 C.C.C. (3d) 97 (S.C.C.). As a result,
the court had to assess the sentence proportionality solely from his personal
perspective. In upholding the provision, the court noted that s.244(b) requires proof of
actual discharge of a firearm, not just its use. The court expressed its view that a
constitutional exemption was not available.
In Walcot, [2001] B.C.J. No. 974, 154 C.C.C.(3d) 385, 152 B.C.A.C. 200, 250
W.A.C. 200 (C.A.), the accused pleaded guilty, as a party, to two counts of
manslaughter involving the use of a firearm in the commission of the offences. He
drove the shooter to the deceaseds home and provided access to a rifle, but he did not
handle the firearm himself. When the shots were fired, he was standing in the doorway
of the deceaseds house while the shooter was a few steps inside. Nonetheless,
pursuant to s.236(a), he was subject to a four-year mandatory minimum sentence. The
trial judge granted him a constitutional exemption to that provision in the circumstances
of this case and imposed a conditional sentence of two years less a day. The majority
of the British Columbia Court of Appeal substituted a sentence of three years and 11
months (one month of credit for two weeks spent in pretrial custody) and ordered that
the substituted sentence took effect from the day that the original sentence was
imposed (the accused had already served 17 months of the conditional sentence).
The majority of the Court of Appeal stated that a sentence of four years
imprisonment, having regard to the direction of Parliament with respect to the minimum
sentence for the offence in question, was not a sentence which was outside the
appropriate range. Such a sentence was at the bottom of the new range for
manslaughter involving the use of a firearm, and that is where the sentence should have
fallen having regard to the gravity of the offence, the mental element in its commission,
and the circumstances of the offender. It followed that a sentence of four years
imprisonment on conviction for manslaughter and as a party to the offence, for Walcots
involvement in the cold blooded execution of two people sitting in bed in their own home
was not a sentence which was so excessive as to outrage the standards of decency,
nor was it a sentence which was grossly disproportionate to the gravity of the offence
and the circumstances of the offender. It would not have offended s.12 of the Charter if
it had been imposed on Walcot by the trial judge since it would not have constituted
cruel and unusual punishment.
McEachern C.J.B.C., dissenting in Walcot, would have affirmed the original
sentence in light of the particular circumstances of this case, including the degree of the
Walcots moral culpability.
In another case, the majority of the British Columbia Court of Appeal again found
that the mandatory minimum four-sentence for manslaughter committed with a firearm
did not violate s.12 of the Charter: Birchall, [2001] B.C.J. No. 1127, 158 C.C.C.(3d) 340,
155 B.C.A.C. 273, 254 W.A.C. 273, (C.A.). Here, the accused killed the victim in an
23
apparent hunting accident. The trial judge granted the accused a constitutional
exemption from the mandatory minimum sentence and imposed a conditional sentence
of 12 months which had already been served. The majority of the Court of Appeal held
that the trial judge erred in granting the constitutional exemption. The majority
substituted a custodial sentence of three years and eleven months, after taking into
account the 12 months served in regard to the conditional sentence and giving onemonth of credit for two weeks spent in pre-trial custody. The majority stated (at paras.
25-27):
Having regard to the reasons and the decision of the Supreme Court of
Canada in R. v. Morrisey, [2000] 2 S.C.R. 90, 148 C.C.C. (3d) 1, and
having regard to a comparison between the circumstances of this case
and the circumstances in Morrisey, it is my opinion that the sentencing
judge was wrong in law in granting a constitutional exemption from the
mandatory minimum punishment of imprisonment for a term of four years
for manslaughter, where a firearm was used in the commission of the
offence; and it is my opinion that the sentencing judge imposed an unfit
sentence. In reaching this conclusion I have noted that Birchall is an
aboriginal offender.
The mandatory sentence of four years, in the circumstances of this case,
is not so grossly excessive that it shocks the conscience of right-thinking
persons and is not so wholly disproportionate that it constitutes cruel and
unusual punishment.
Birchall has completed serving the conditional sentence of twelve months
imposed by the sentencing judge, which was to be served in the
community. In addition, he has fathered a child in that period. Neither of
those factors persuades me that a sentence which was unlawful and unfit
when it was imposed can now be regarded as lawful and fit. The
sentence did not constitute cruel and unusual punishment when it ought to
have been imposed. Having regard to the purposes of Parliament in
enacting the mandatory minimum four-year sentence for manslaughter
committed with a firearm, neither the completion of an unfit conditional
sentence served in the community, nor the birth of a child, can turn the
unfit and unlawful sentence into a fit and lawful one.
McEachern C.J.B.C., dissenting in Birchall, decided that the accused was entitled
to a constitutional exemption.
One accused achieved a constitutional exemption from the minimum punishment
of four years imprisonment for manslaughter with a weapon: Massettoe, 2003 BCPC
451, [2003] B.C.J. No. 3009. The court imposed a lesser sentence of 12 months
imprisonment followed by three years probation. Massettoe had shot and killed his
cousin when his rifle discharged during a drinking party. He was intoxicated at the time.
According to the court, the aggravating factors included his prior record for careless use
of a firearm, his handling of a firearm in the present case while he was intoxicated and
subject to a weapons prohibition, and his failure to seek help for the victim, and or to
advise anybody of what hed done. The mitigating factors included the lack of
24
premeditation, his prompt admission of guilt, and the prospects for his rehabilitation.
Moreover, the shooting seemed to have been accidental, except that a careful person
using a firearm would not point it at someone and would make sure that it was not
loaded.
In deciding that the minimum four-year sentence was grossly disproportionate for
the accused and the offence, the court considered that the aboriginal tribe to which
Massettoe belonged, the Sekani, had lost their traditional life-style. As well, their small,
isolated community offered few opportunities for employment. The court reviewed a
number of other manslaughter cases that had occurred in the community. In many of
the killings, one or both parties were intoxicated. Only one offender had been
sentenced to four years imprisonment. All of the other sentences were much less
severe. The court believed that since a four-year sentence would take Massettoe from
his roots and supports in that community this Sekani community for a significant period
of time, he would be psychologically devastated.
Another accused failed to get a constitutional exemption or a stay of proceedings
in regard to the minimum one-year prison sentence for the use of an imitation firearm
under s.85: Peterkin, [2003] O.J. No. 4403 (S.C.J.). Peterkin pleaded guilty to robbery
and using an imitation firearm while committing a robbery. He stole about $300 from a
variety store after pointing an imitation handgun at the 66-year-old cashier. Since
committing the offence, Peterkins skull had been fractured when he was attacked by a
group of men. His health had become precarious and he would be in danger of death if
he were to be hit on the head again. He required constant and special care. The
defence argued for a conditional sentence partly on the basis that the accused would be
in physical danger if placed in a prison. Peterkin testified that he had many enemies.
Defence counsel suggested that he would suffer cruel and unusual punishment by
having to serve his time in protective segregation.
As for the gravity of the offence, the court pointed out that robbery was a serious
offence, especially in this case where it was committed late at night against a vulnerable
store cashier by a masked person with an imitation weapon. Peterkins criminal
background included being on probation at the time of the offence as well as poor
performance on previous court orders. The offence was aggravated by the fact that his
motivation for committing it was to get drugs. The court noted that he would be at
greater risk than most people whether he was in the community or in custody. Also,
Peterkin functioned in society without wearing any protective device. He was able to
engage in activities that might result in a bump to his head if he took certain
precautions. The evidence indicated that the correctional system could accommodate
his special needs. The court was not persuaded of the likelihood that he would serve
his sentence in protective segregation. In any event, the court did not think that the
segregation in question would be the kind of solitary confinement that might violate s.12
of the Charter. A person in segregation would be permitted to exercise, have contact
with guards, and participate in programs and counselling.
The court noted that, in Olson (1987), 38 C.C.C. (3d) 534, affd on other grounds
47 C.C.C. (3d) 491 (S.C.C.) (discussed under Prison Conditions below), it was found
that segregation did not result in cruel and unusual punishment. The court concluded
25
that Peterkins case was not one of the rare cases where the sentence would result in
gross disproportionality. The court took into account the pre-trial custody of 37 days
and imposed a total sentence of 12.5 months on both charges.
In Ferguson, 2008 SCC 6, affg 2006 ABCA 261, [2006] A.J. No. 1150, 2006
CarswellAlta 1216, 212 C.C.C.(3d) 161 the majority of the Alberta Court of Appeal had
found that the trial judge erred in granting the accused police officer a constitutional
exemption from the mandatory minimum punishment of four years imprisonment for
manslaughter committed with firearm (s.236, Criminal Code). The trial judge imposed a
conditional sentence of imprisonment, even though such a sentence was unavailable
because of the mandatory minimum term of imprisonment (s.742.1). The offence
occurred during a struggle between the accused and a prisoner who was being held in a
police cell. The victim initiated the struggle and tried to pull the officers gun from his
holster. The officer believed that he was in danger. He ended up shooting the victim
twice first in the abdomen and then in the head. The head shot caused death. The
Court of Appeal rejected the trial judges finding that the second shot was instantaneous
and purely instinctive as that finding was inconsistent with the jury verdict. While the
trial judge was entitled to find that the first shot was fired in self-defence, the judge could
not find that the second shot was fired in self-defence.
The Court of Appeal held that the trial judge was mistaken in deciding that the
four-year mandatory sentence was cruel and unusual punishment in a hypothetical case
or in the particular circumstances of the offence and the personal characteristics of the
accused. The crime was grave in light of the serious consequences and the level of
mens rea. The trial judge was also wrong in determining that an individual constitutional
exemption was available as a remedy. Such a remedy did not mesh with the s.12
analysis articulated by the Supreme Court of Canada. In the rare case where a
mandatory minimum sentence was found to be cruel and unusual punishment and not
justified under s.1 of the Charter, the only remedy was for the law to be declared
unconstitutional and struck down. If a discrete class of persons could be defined to
whom the mandatory minimum sentence should not apply, the declaration of invalidity
would be suspended for a fixed period of time. Parliament would then have the
opportunity to draft replacement legislation. If a discrete class of persons could not be
identified, the law would have to be struck down.
The Supreme Court upheld the Court of Appeals ruling that the minimum
punishment did not violate s.12 of the Charter. While it could be concluded that the jury
must have rejected self-defence and the offender having had the intent for murder, the
trial judge erred in developing a theory that the verdict was based on the fatal second
shot having been an instinctive reaction associated with the officers training, rather than
a matter of anger and conscious judgment. In the absence of that underpinning for the
verdict, no basis remained for concluding that the minimum sentence violated s.12 on
the facts of the case. The mitigating features of the offence (absence of planning,
deceased having initiated the altercation and offenders limited time to consider his
response) did not reduce the offenders moral culpability to an extent that would make a
four-year term grossly disproportionate. Those factors were more than offset by the
aggravating features of the offender having been in a position of trust in relation to the
deceased and that he had been trained to respond appropriately to the common
26
situation of resistance by a detained person. In arguing for the first time that the
minimum term was unconstitutional in reasonably hypothetical circumstances, the court
concluded that the offender had not pointed to a hypothetical case where the offenders
minimum level of moral culpability for unlawful act manslaughter with a firearm would be
less than that in the reasonable hypotheticals considered in Morrisey, 2000 SCC 39.
Although the court reduced the sentence of imprisonment imposed on the
accused for manslaughter with a firearm from six years to the four-year mandatory
minimum, it stated that, even assuming that a constitutional exemption was legally
available, the minimum punishment was not so grossly disproportionate to the offence
committed in this case as to attract an exemption: Colville, 2005 ABCA 319, [2005] A.J.
No. 1255, 2005 CarswellAlta 1369, 201 C.C.C.(3d) 353, application for leave to appeal
dismissed (without reasons) [2004] S.C.C.A. No. 500. During an attempt to make a
citizens arrest, the accuseds rifle accidentally discharged. He killed one person and
injured another person. In light of the accuseds exemplary record as a productive and
law abiding citizen and the jurys conclusions on the acquitted charges, including
second degree murder and careless use of a firearm, the court found that the original
six-year sentence was demonstrably unfit. However, since Parliament had established
a new floor for the sentencing of persons convicted of manslaughter using a firearm,
with greater emphasis given to the gravity and prevalence of the use of firearms in
committing this offence, the court could not conclude that the offence in this case fell
outside the range of the four-year minimum sentence.
In K.(R.) sub nom. Kinnear, [2005] O.J. No. 2434, 2005 CarswellOnt 2423, 198
C.C.C.(3d) 232 (C.A.), the accused was convicted on several counts that included three
counts of using an imitation firearm while committing an indictable offence. The trial
judge decided that the prohibition in s.85(4) of the Criminal Code against concurrent
sentences for these offences violated s.12 of the Charter. The judge read the provision
down so as to allow the imposition of concurrent sentences on the three counts. Since
the Court of Appeal held that the Kienapple principle applied in that there should have
been a conviction on only one of the imitation firearm charges and the other two charges
should have been stayed, the constitutional issue was no longer a live one. However, the
Court of Appeal, in obiter, decided to address the trial judges finding of unconstitutionality
as it revealed three fundamental errors (at para. 58):
First, the trial judge should not have addressed the constitutional issue
at all as on the view he took of the case, the constitutionality of s.85(4)
was irrelevant to the determination of the appropriate sentence. Second,
the trial judge failed to consider and apply binding authority from this court.
Third, even if the prior decisions of this court were somehow
distinguishable, the trial judges finding that s.85(4) imposed cruel and
unusual punishment is entirely at odds with the analysis provided in the
controlling precedents from this court and the Supreme Court of Canada.
In Rochelau, [2010] O.J. No. 5308 (C.J.), the court sentenced the accused in
relation to his guilty pleas to 24 charges arising out of seven incidents. These charges
contained groupings of charges with minimum sentences and consecutive minimum
sentences. The accused argued that Kienapple should apply to a number of the
27
charges. In the alternative, he argued that the minimum sentences imposed would
result in a sentence of eight years that would constitute cruel and unusual punishment.
In conducting the s.12 Charter analysis, the court concluded that while an eight-year
sentence might be harsh and excessive, it did not equate to gross proportionality and
the court found it did not constitute cruel and unusual punishment. The court noted the
fact that McLaughlin C.J. suggested in Ferguson that if a mandatory minimum would
create an unconstitutional result, the minimum sentence could be struck down.
However, in this case, the accused presented far-fetched hypotheticals. Once credit
was applied, the court imposed a sentence of seven years and nine months.
On appeal, the court stayed the charge of using a firearm in the commission of
an indictable offence where the accused was also found guilty of robbery with a firearm
pursuant to the Kienapple principle. The accused had committed a number of robberies
with a firearm that involved the confining of victims. On the facts of those cases, the
court held the offences had a factual and legal nexus. The court varied the sentence to
reflect the staying of several counts of using a firearm to commit an indictable offence.
The total sentence imposed after trial of eight years imprisonment minus three months
pre-sentence custody credit remained fit.
In Elliston, 2010 ONSC 6492, [2010] O.J. No. 5152, 225 C.R.R.(2d) 109 (S.C.J.),
the accused applied for a declaration that s.84(5)(a) of the Criminal Code was
unconstitutional on the ground that it breached ss.7, 9 and 12 of the Charter. The
applicant argued that under the current scheme, offenders committing the same offence
might receive different sentences based solely on the order in which the convictions
arise, rather than the order in which the offences were committed. The court referred to
the judgment of Backhouse J. in Charles, [2010] O.J. No. 4209 (S.C.J.). The court
agreed with her analysis and adopted her conclusion that the possibility of disparate
sentences based solely upon the timing of the convictions did not support the
conclusion that s.12 Charter rights were violated. If the spectre of that possibility were
not farfetched, it would have arisen in actual fact before now. The court also accepted
the Crowns position that if a person is charged with a s.95 offence and prosecuted by
indictment in circumstances where there is a prior triggering offence, that person would
likely have access to competent legal advice so that the possibility of the disparate
sentences suggested is remote.
In Stewart, 2010 BCCA 153, 253 C.C.C.(3d) 301, 75 C.R.(6th) 304, the appellant
challenged the validity of the one-year mandatory minimum sentence in s.85 of the
Code (use of firearm while committing an indictable offence) at her sentencing hearing.
This was unsuccessful. She appealed arguing that the sentence amounted to cruel and
unusual punishment, contrary to s.12 of the Charter. There were a number of mitigating
factors, including her lack of record, exemplary background, and the fact that she did
not point or fire the firearm. These did not outweigh the aggravating factors including:
the offence occurred within the victims dwelling, the victim was assaulted, and the 911
call demonstrated how volatile the situation was. Section 85 was enacted by Parliament
to address concerns with firearm-related offences. The intention was to enhance the
publics protection from the illegal use of firearms by placing emphasis on the
sentencing principles of denunciation and general deterrence. The court concluded that
the sentence was not grossly proportionate.
28
In Meszaros, 2013 ONCA 682, the accused had confronted two trespassers
while holding a shotgun. He fired a shot before accosting one of the trespassers and
threatening him. There was a scuffle in which the accused bested the trespasser. A
jury acquitted the accused of assault for the scuffle, but convicted him of assault and
using of a firearm while committing an indictable offence relating to the trespasser who
fled, and two counts of unlawful storage of a firearm. He was sentenced to one years
imprisonment.
The Ontario Court of Appeal upheld the convictions. The court also upheld the
one-year sentence. The one-year mandatory minimum sentence for using a firearm was
constitutional and the sentencing judge did not err by not imposing discharges for the
other offences (at para. 82):
Absent a mandatory minimum, different judges might differ on whether a
period of incarceration was required to meet the goals of sentencing in the
context of Mr. Meszaros' offence and Mr. Meszaros as an offender.
However, use of the firearm is an essential requirement of the s. 85
offence -- a factor that distinguishes s. 85 cases from the reasonable
hypotheticals presented by Doherty J.A.'s s. 95 analysis in Nur -- and any
offence involving the use of a firearm is high on the gravity scale. I do not
think that some period of incarceration would be unreasonable in any such
circumstance, and it would certainly not be demonstrably unfit. Even if a
one-year punishment were demonstrably unfit, that would not make it
unconstitutional. Adapting the language of Rosenberg J.A. above, and of
Lamer J. in Smith, I conclude that, "having regard to the objective gravity
of an offence involving the use of a firearm", a sentence of one year's
incarceration for an assault involving the use of a firearm is not a
punishment "that is so excessive as to outrage standards of decency" in
the community.
In Sheppard, [2011] N.J. No. 252 (Prov.Ct.), the accused argued that the
minimum sentence for discharging a firearm under s.244(2)(b) violated s.12. The
accused and an accomplice carried out an armed robbery of a Dominion store in order
to pay off a drug debt. The robbery was unsuccessful and the accomplice asked the
accused to shoot him so that he might receive sympathy and more time to pay the debt.
The court dismissed the application, holding that the gravity of the offence could be
overstated. The accused had a prior conviction for a firearms offence and was subject
to a firearms prohibition. The accuseds actions were calculated and done out of
desperation. Despite his young age, the four year minimum sentence was not grossly
disproportionate.
In Abdullahi, 2014 ONSC 272, the court rejected the argument that
s.244.2(3)(a)(i), which provides for a mandatory minimum five year sentence for
recklessly discharging a firearm, was invalid as contrary to s. 12. The accused fired a
handgun three times into the air after his companion was shot. The court distinguished
Nur, 2013 ONCA 677, and Smickle, 2013 ONCA 678, on the basis that the facts in this
case were more egregious and there was a real risk of harm to the public. The accused
had served three years of pre-trial custody and would have two years left to serve on his
29
sentence. He would be eligible for parole in 8 months. In the circumstances, a five year
sentence would not be grossly disproportionate. The court did not accept as reasonable
a hypothetical where a licensed firearm owner shot his gun into the woods during target
practice at his cottage. The hypothetical did not involve the use of an illegal firearm nor
was it premised on a risk to the public, which is the basis of the offense under
s.244.2(3)(a)(i).
In McMillan, 2013 MBQB 229, the accused took a rifle and walked to the home of
the complainant where he fired six shells at the home. Three people were inside the
house at the time. The accused wanted to scare the complainant into leaving him alone,
as the complainant had a history of bullying the accused. The accused was convicted of
intentionally discharging a firearm into a place knowing that or being reckless as to
whether another person was in that place, contrary to s. 244.2(1)(a) of the Criminal
Code. The minimum penalty for this offence was a four year sentence, which the court
found to be harsh and excessive given the offenders circumstances and given the
extent of the bullying he experienced. The court held that, pursuant to s.719(2) it could
not deduct the 18 months that the accused spent on a strict house arrest bail. Coupled
with the four year minimum, the sentence was grossly disproportionate to what the
accused deserved for this offence. The minimum sentence provision was therefore
contrary to s.12 of the Charter and could not be justified under s.1. The court sentenced
the accused to one year of incarceration.
See also Crockwell, 2013 NLTD(G) 23, where the court held that the minimum
sentence for intentionally discharging a firearm while being reckless as to the life or
safety of another person (s.244.2(1)(b)) did not amount to cruel and unusual
punishment.
In Hailemolokot, 2013 MBQB 285, the accused challenged the four year
mandatory minimum for robbery with a firearm (s.344(1)(a.1)) on the basis that it
violated ss.7, 12, and 15 of the Charter. He drove a group of friends to a mall where
they pointed a pellet gun at the complainants in order to rob them. The court noted that
his level of involvement was serious, as he was involved in the planning of the offence
and then tried to hide the guns. The defence argued that the use of an unloaded pellet
gun was not the type of mischief that s.344(1)(a.1) is aimed at. The court, however, held
that s.344(1)(a.1) does not distinguish pellet guns when they are used for criminal
purposes. The accused had no criminal record at the time of the offence and was
generally of good character. A four year sentence would have a significant impact on
the accused and would also impact his immigration status. The court held that in the
absence of the mandatory minimum, it would have imposed a sentence of two and a
half years. Despite the mitigating circumstances, the court held that the minimum
sentence is not cruel and unusual punishment (at paras. 54-55):
However, the standard under s. 12 is not so exacting as to require the
punishment to be "perfectly suited to accommodate the moral nuances of
every crime and every offender" (R. v. L. (T.P.), [1987] 2 S.C.R. 309
(S.C.C.), at 344-45). The question is whether the sentence prescribed by
s. 344(1)(a.1) is so grossly disproportionate that it would outrage
commonly accepted standards of decency; and I conclude that it would
30
not. This was a robbery committed by a group of males who approached

and intimidated the complainants with two guns. Although neither accused
pointed the silver gun, they were nonetheless important participants for
the reasons I have outlined. These guns, if loaded and fired, were capable
of inflicting serious bodily harm. The use of such firearms, even unloaded
ones, creates a volatile situation and fear and intimidation on the part of
those victimized. Clearly, citizens must be protected against being
approached and threatened with guns.
In these circumstances, and taking into account the other factors relevant
to an assessment of gross disproportionality, I conclude that a four-year
sentence is not cruel and unusual punishment. In reaching this conclusion,
I have considered the mitigating circumstances of the offenders and the
significant impact of such a sentence on them.
Possession Offences
In Bressette, [2010] 4 C.N.L.R. 202 (Ont.S.C.J.), the court held that applying the
statutory minimum sentence in s.96(2)(a) did not violate ss.12, 15, or 7 of the Charter.
In considering the s.12 application, the mandatory minimum sentence for possession of
a restricted firearm was not grossly disproportionate punishment for Aboriginal
offenders. The court concluded that the requirement to consider the circumstances of
an Aboriginal accused under s.718(2)(e) of the Code in considering available
reasonable sanctions other than imprisonment, could not exempt Aboriginal offenders
from the mandatory minimum firearms offences. In addition, the fact that Aboriginal
communities possess more firearms for sustenance purposes does not mean that
mandatory minimum firearms sentences have a more serious impact on those
communities. When firearms are used criminally, individuals in all communities are
affected. The court also held that s.96(2)(a) did not violate s.15. The court relied on the
decisions in Ferguson, [2008] 1 S.C.R. 96; Morrisey, [2000] 2 S.C.R. 90; Smith, [1987] 1
S.C.R. 1045; and Latimer, [2001] 1 S.C.R. 3. These were all cases where the
mandatory minimum sentences were found not to violate s.15 because they fettered the
Charter. The mandatory minimum also did not negate s.718(2)(e) since the maximum
ceiling allowed the trial judge the opportunity to tailor the appropriate penalty. The court
also concluded that the mandatory minimum did not contravene s.7 of the Charter.
While, statistically, Aboriginals are over-represented in Canadian prisons and more
inclined to use firearms for sustenance, it did not follow that they would be more likely to
use firearms.
In Montague, 2010 ONCA 141, leave to appeal to S.C.C. refused [2010] S.C.C.A.
No. 157, the accused was convicted of multiple firearms-related offences. He
challenged the one year mandatory minimum sentence under s.95 and s.102 as being
cruel and unusual punishment. He also argued that the global sentence of 18 months
imprisonment was contrary to s.12 of the Charter. The court upheld the trial judges
reasoning for sentence and, in the circumstances, found the sentences and mandatory
minimums to be fit and not contrary to s.12. The accused did not rely on any reasonable
hypotheticals in this case.
31
In Adamo, 2013 MBQB 225, the three-year mandatory minimum sentence for
possession of a prohibited firearm with readily accessible ammunition (s.95(1 )) was
found to violate s.12 of the Charter. It was also found to violate s.7 due to
disproportionality and overbreadth, and s.15 due to the disproportionate effect it has on
mentally ill offenders. The violations could not be saved by s.1.
The accused was found guilty of several firearms offences relating to a pistol and
ammunition discovered in a shed on a residential property he shared with his mother.
He had a significant cognitive impairment due to a brain injury inflicted from two
members of the Hells Angels motorcycle gang years earlier. He experienced paranoia
and illusions consistent with a psychosis (at para. 12). He had a criminal record
including aggravated assault, threatening, and other offences. It appeared his mental
illness had not been adequately assessed or treated by either the medical or criminal
justice systems in the past. The court held that a fit sentence was six months
imprisonment, already served due to credit for seven months spent in pre-sentence
custody (credited at a rate of 3:1), and three years probation.
Conversely, in Nur, 2013 ONCA 677, on a reasonable hypothetical at the
regulatory end of the spectrum for the offence of possession of a prohibited or restricted
firearm without being the holder of a licence/registration certificate, the minimum
sentence of three years imprisonment under s.95(2)(a)(i) of the Code was held to
violate s.12. On a reasonable hypothetical under which: (a) the accused knowingly had
possession of an unloaded prohibited or restricted firearm, but with readily accessible
ammunition; (b) the accused had a licence/registration for the firearm, but knew that the
location or manner of possession was unauthorized; and (c) the possession was not
connected to any unlawful purpose or dangerous activity (at para. 150), a three-year
prison sentence was grossly disproportionate for what was essentially a licence
violation. The gravity of the offence was limited because it involved no harm and very
little, if any, risk of harm to person or property, and the offenders moral culpability
(knowledge that possession was not authorized at the particular place) was less than
that of an offender liable for a penal negligence offence by demonstrating a wanton or
reckless disregard for the lives of safety of others. More generally, the offenders moral
culpability was on a fundamentally different level than that of a person in public carrying
a loaded gun with knowledge that it was neither licenced nor registered and intending to
use it as he or she saw fit. The grossly disproportionate nature of the sentence was
confirmed by the fact that there was no minimum sentence in ss.92 and 93 of the Code
for offences that were similar to the postulated offence. The cavernous disconnect
between the severity of the postulated offence and the minimum three year term was
determinative of the s.12 analysis.
Nur, above, was applied in Charles, 2013 ONCA 681, in determining that the
mandatory minimum of five years imprisonment under s.95(2)(a)(ii) of the Code for a
second or subsequent conviction for the offence considered in Nur (s.95(1) - possession
of a prohibited or restricted firearm (loaded or unloaded with accessible ammunition)
without being the holder of a licence and a registration certificate), violated s.12 of the
Charter. Following a report to the police about an incident, the loaded firearm, with an
illegal over-capacity magazine, was found in the appellants bedroom in a rooming
house. The appellant had two prior convictions for offences that engaged the increased
32
punishment. The court determined that the minimum sentence was not grossly
disproportionate in relation to the appellant given the seriousness of the offence, his
criminal record and the absence of mitigating factors; however, the minimum five year
term was grossly disproportionate on the reasonable hypothetical postulated in Nur
even if modified to reflect the fact that the offender had prior convictions for robbery
while using an imitation firearm and possession of ammunition contrary to a firearm
prohibition. While the gravity of the postulated offence was greater than in Nur because
the hypothetical offender was a repeat offender and, therefore, had increased moral
culpability, the imposition of a five-year term for conduct that remained in the nature of a
licensing violation remained grossly disproportionate.
In Nur; Charles, 2015 SCC 15, affg 2013 ONCA 677, the minimum sentence
under s.95(2)(a)(i) of three years imprisonment for possession of a loaded prohibited or
restricted firearm without being the holder of a licence and a registration certificate was
not grossly disproportionate in relation to either offender; however, the minimum term
was grossly disproportionate on a reasonably foreseeable application of the law to an
offence in the nature of a licencing violation (i.e. licenced possession of firearm at wrong
location; untimely application for licence for an inherited firearm; spouse who finds
herself in possession of husbands firearm). As an offence in the nature of a licencing
violation involved little or no moral fault and little or no danger to the public, a minimum
sentence of three years imprisonment was grossly disproportionate to a fit and fair
sentence. Such a sentence was totally out of sync with the norms of criminal sentencing
set out in s.718 of the Code and legitimate expectations in a free and democratic
society - there was a cavernous disconnect between the severity of a licencing-type
offence and the mandatory minimum.
In Smickle, 2013 ONCA 678, the accused was found guilty of possession of a
loaded prohibited firearm and sentenced to a one-year conditional sentence after the
sentencing judge struck down the three-year mandatory minimum sentence. While at
his cousin's apartment, he was holding a loaded pistol in his non-dominant hand when
the police forcefully entered the house, executing a warrant against the accused's
cousin. The sentencing judge found the accused had used the firearm as a prop in a
photo he was taking and that he had not intended to use it as a weapon. He was 27 and
had no criminal record.
The Court of Appeal held that the sentencing judge had made several mitigating
findings of fact that were unsupported by the record, including that the accused had
brief possession of the gun and was only holding it to look cool. The court held that the
accused could have provided evidence of these facts, but had instead perjure[d] himself
at trial by claiming he did not possess the firearm. The offence demonstrated a wanton
or reckless disregard for the lives and safety of others. The mandatory minimum was
not grossly disproportionate when applied to this particular offender, but it had been
struck down in the companion case of Nur, 2013 ONCA 677 and was therefore of no
force and effect.
The Court of Appeals decision in Nur, above, has been followed in: Sheck, 2013
BCPC 105; Vandyke, 2013 ABPC 347.
A s.12 Charter violation founded on a reasonable hypothetical was established in
33
Lewis, 2012 ONCJ 413, in respect of the minimum punishment of three years
imprisonment for the offence of trafficking firearms contrary to s.99(1) of the Criminal
Code. The offender offered to obtain a firearm for a person (an undercover police
officer) as an incentive to keep the officer interested in making further purchases of
cocaine, but the offender had no gun or access to a gun and did not intend to transfer
one. The court found that the minimum sentence, while excessive given the relatively
low level of criminality (minimal danger of harm to the public compared to the offence of
possession of a firearm) and which would otherwise have attracted a sentence of one
year of imprisonment, was not grossly disproportionate for the particular offender. The
offenders significant record for violent offences increased the need for a sentence that
would be long enough to specifically deter him from future crime and its effect would not
be unduly harsh given the offenders familiarity with incarceration (seven prior custodial
sentences). However, the court concluded that the minimum sentence was grossly
disproportionate on the reasonable hypothetical of a youthful first offender committing
the same offence for the purpose of facilitating the trafficking of marihuana. The court
emphasized that the criminal culpability was limited because of the absence of actual
danger to the public and there were large magnitudes of difference between a one,
two and three year sentence from the perspective of a youthful first offender. The effect
of the sentence would also be unduly harsh and fail to give effect to the rehabilitative
purpose of sentencing because it would have to be served in a federal penitentiary. As
the s.99 offence was not a hybrid offence, it could not, as in Nur, 2011 ONSC 4874, be
upheld on the basis of the Crowns discretion to proceed summarily in the appropriate
case. In the result, the court imposed a sentence for the s.99 offence of one year of
imprisonment consecutive to the sentence for drug trafficking.
Charter Protection Against Crown Election to Prosecute by Indictment
Charter protection may be available if the Crown elects to prosecute a hybrid
offence by indictment simply in order to increase the accuseds punishment and without
regard to the circumstances of the particular case. An abuse of process may be found
on the basis that an arbitrary election impairs the integrity of the criminal justice system
in a broad sense by breaching the Crowns role as a minister of justice to act
objectively, moderately and impartially to ensure that justice is done; the requisite
objectivity requires a rational assessment of facts be brought to bear in making
decisions related to a case: Regan, 2002 SCC 12, at paras. 89 and 156; Larche, 2006
SCC 56, at para. 39. An abuse of process may also be founded on an improper use of a
mandatory minimum sentence in plea bargaining to extort a guilty plea: Babos, 2014
SCC 16; at paras. 58-71; Nur; Charles, 2015 SCC 15, at para. 169, per Moldaver J.,
dissenting on other grounds.
However, Crown Policy Manual practice memoranda (PM [2005] No. 20; PM
[2006] No. 8) provide for the Crowns election as to the mode of prosecution to be
informed by considerations beyond the maximum punishment. Moreover, to the extent
that the Crown`s election is a matter of prosecutorial discretion, the Charter protection
is limited to the abuse of process doctrine and its availability depends upon the accused
discharging a threshold burden based on a proper evidentiary foundation to show that
34
an inquiry into the Crown`s conduct is warranted: Nixon, 2011 SCC 34, at paras. 60-61;
Anderson, 2014 SCC 41, at paras. 53-55.
More generally, Crown decision-making in conducting a prosecution is not
immune from judicial review; however, the constitutional principle of prosecutorial
independence the principle that the office of the Attorney General is independent of
the courts in supervising prosecutorial decisions renders the exercise of prosecutorial
discretion immune from review based on s.7 of the Charter, except for abuse of
process: Anderson, 2014 SCC 41, at paras. 36, 46-48 and 51; R.(S.J.), 2012 ONCA
568, at para. 119; Krieger v. Law Society of Alberta 2002 SCC 65, at paras. 46-47. In
this context, the exercise of prosecutorial discretion relates to the ultimate decisions as
to whether a prosecution should be brought, continued or ceased, and what it ought to
be for or, in other words, decisions regarding the nature and extent of the prosecution
and the Attorney Generals participation in it: Anderson, at para. 40; Kreiger, at para. 47.
While it appeared from Gill, 2012 ONCA 607, that decisions that fall within the
scope of prosecutorial discretion might be relatively limited, a broader scope was
accorded to prosecutorial discretion in Anderson, 2014 SCC 41. Beyond the decisions
recognized in Kreiger, above, to fall within the scope of prosecutorial discretion
(whether to bring the prosecution of a charge laid by police; whether to enter a stay of
proceedings in either a private or public prosecution; whether to accept a guilty plea to a
lesser charge; whether to withdraw from criminal proceedings altogether; and whether
to take control of a private prosecution), Anderson determined that prosecutorial
discretion also includes the decisions to repudiate a plea agreement; to pursue a
dangerous offender application; to prefer a direct indictment; to charge multiple
offences; to negotiate a plea; to proceed summarily or by indictment; to initiate an
appeal; and to seek a greater punishment by reason of a previous conviction (at para.
44).
The Crowns discretion to seek a greater punishment by reason of a prior
conviction had been determined in Gill, above, not to be an exercise of prosecutorial
discretion; however, the Supreme Court in Anderson, above, concluded that the
tendering of evidence to trigger a greater punishment fundamentally altered the extent
of the prosecution and, in particular, the extent of the accuseds jeopardy. Moldaver J.,
on behalf of the court, emphasized that the Crowns decision was analogous to other
decisions by which the Crown may trigger a minimum sentence (proceeding with
charges that are punishable by a minimum when related offences are not so punishable
or triggering a minimum sentence by electing to prosecute a hybrid offence by
indictment) or by which the Crown may preclude a sentencing option (i.e., election to
prosecute by indictment and preclude the availability of a conditional sentence).
A challenge to the exercise of prosecutorial discretion under the abuse of
process doctrine requires that the prosecution have been conducted in a manner that
connotes unfairness or vexatiousness of such a degree that it contravenes fundamental
notions of justice and thus undermines the integrity of the judicial process: O'Connor
(1995), 103 C.C.C.(3d) 1 (S.C.C.), at para. 73; Regan (2002), 161 C.C.C.(3d) 97
(S.C.C.). More specifically, an abuse of process may be found on the basis that the
Crowns conduct (a) fundamentally impairs the fairness of the specific proceeding or (b)
35
contravenes fundamental notions of justice and thus undermines the integrity of the
criminal justice system in a broad sense: Anderson, 2014 SCC 41, at paras. 49-50;
Nixon, 2011 SCC 34, at para. 36; Gill, 2012 ONCA 607, at para. 61. The burden of
proof is upon the accused to establish the abuse of process on a balance of
probabilities: Nixon, above, at paras. 35-37 and 63.
The fairness branch of the abuse of process doctrine is concerned with fairness
in a procedural sense and is generally assured by compliance with the applicable
procedural and evidentiary rules, including proper notice of the case to be met and a fair
opportunity to meet the case: Gill, at paras. 62-63. In Gill, above, Doherty J.A., on
behalf of the court, stated (at para. 62):
The second category of abuse of process looks at the impact of the
exercise of the prosecutorial discretion on the right to a fair trial. That right
extends to the sentencing process. Fairness is generally assured by
compliance with the applicable procedural and evidentiary rules. Section 7
remains available, however, if despite compliance with those rules, the
proceeding is rendered fundamentally unfair to an accused as a result of
challenged prosecutorial conduct: R. v. Albright, 1987 CanLII 26 (SCC),
[1987] 2 S.C.R. 383, at pp. 395-396.
With respect to the integrity of the justice system branch of the abuse of process
doctrine, in Nixon, above, Charron J., on behalf of the court, stated (at para. 41):
Under the residual category of cases, prejudice to the accuseds
interests, although relevant, is not determinative. Of course, in most
cases, the accused will need to demonstrate that he or she was
prejudiced by the prosecutorial conduct in some significant way to
successfully make out an abuse of process claim. But prejudice under the
residual category of cases is better conceptualized as an act tending to
undermine societys expectations of fairness in the administration of
justice. This essential balancing character of abuse of process under the
residual category of cases was well captured by the words of LHeureuxDub J. in R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659.
She stated the following:
Under the doctrine of abuse of process, the unfair or
oppressive treatment of an appellant disentitles the Crown to carry
on with the prosecution of the charge. The prosecution is set aside,
not on the merits (see Jewitt, supra, at p. 148), but because it is
tainted to such a degree that to allow it to proceed would tarnish the
integrity of the court. The doctrine is one of the safeguards
designed to ensure that the repression of crime through the
conviction of the guilty is done in a way which reflects our
fundamental values as a society (Rothman v. The Queen, 1981
CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It
acknowledges that courts must have the respect and support of the
community in order that the administration of criminal justice may
properly fulfil its function. Consequently, where the affront to fair
36
play and decency is disproportionate to the societal interest in the

effective prosecution of criminal cases, then the administration of
justice is best served by staying the proceedings. [Emphasis
added; p. 1667.]
With respect to both branches of the abuse of process doctrine, in
Anderson, above, Moldaver J. on behalf of the court, stated (at paras. 4950):
The jurisprudence pertaining to the review of prosecutorial
discretion has employed a range of terminology to describe the type of
prosecutorial conduct that constitutes abuse of process. In Krieger, this
Court used the term flagrant impropriety (para. 49). In Nixon, the Court
held that the abuse of process doctrine is available where there is
evidence that the Crowns decision undermines the integrity of the judicial
process or results in trial unfairness (para. 64). The Court also referred
to improper motive[s] and bad faith in its discussion (para. 68).
Regardless of the precise language used, the key point is this:
abuse of process refers to Crown conduct that is egregious and seriously
compromises trial fairness and/or the integrity of the justice system. Crown
decisions motivated by prejudice against Aboriginal persons would
certainly meet this standard.
An abuse of process based on prosecutorial conduct that contravenes
fundamental notions of justice will, in most cases, require a demonstration of significant
prejudice to the accused, but the prejudice can exist by virtue of conduct that tends to
undermine societys expectations of fairness in the administration of justice: Nixon,
above, at para. 41. The overriding question is whether the Crowns conduct was so
unfair or oppressive to the accused, or so tainted by prosecutorial misconduct, bad faith
or improper motive, that to allow the Crown to proceed would tarnish the integrity of the
judicial system: Nixon, at paras. 59 and 68. Consideration may be given to the
significance of the type of decision to the administration of justice; to whether the
decision was made arbitrarily, without proper inquiry into the surrounding
circumstances, and without regard to any resulting prejudice to the accused; to whether
there was a systemic problem in the particular jurisdiction in respect of decision-making
indicating that the Crown acted in bad faith or with flagrant impropriety; and to whether
there was political or other improper interference in the decision-making process: Nixon,
at para. 64.
The court review under the abuse of process doctrine is not concerned with
whether the judge views the exercise of prosecutorial discretion as reasonable:
Anderson, 2014 SCC 41, at paras. 46-51; Nixon, 2011 SCC 34, above, at para. 52; Gill,
2012 ONCA 607, at paras. 63, and 74-75; Nur, 2013 ONCA 677, at para. 192. Such an
approach is inconsistent with the separate roles of judges and prosecutors in the
criminal justice process and implies that judges have some supervisory role over the
conduct of a prosecution when they do not: : Anderson, at paras. 46-51; Nixon, at para.
52; Gill, at para. 75. The separate roles of the court and the Crown in the criminal justice
process dictate that judges should not oversee trial decisions made in the exercise of a
37
prosecutorial discretion except to the extent that they engage the abuse of process
doctrine by virtue of their impact on the integrity of the process or on the fairness of the
trial: Anderson, at paras. 46-51; Gill, at para. 75; Nur, at para. 195-196.
The court review under the abuse of doctrine is also not conducted on the basis
that the Crown has an obligation to justify the decision: Gill, at paras. 63, and 74-75;
Nur, 2013 ONCA 677, at para. 192, affd 2015 SCC 15. The general principle that
decisions made in the exercise of prosecutorial discretion are beyond the proper reach
of the courts, dictates that a court not inquire into whether the decision amounts to an
abuse of process unless the accused discharges a threshold burden based on a proper
evidentiary foundation to show that the inquiry is warranted: Nixon, 2011 SCC 34, at
paras. 60-61; Anderson, 2014 SCC 41, at paras. 53-55. Moreover, an onus on the
Crown to justify the decision is inconsistent with the accused bearing the burden of
persuasion on the application: Gill, at paras. 70 and 76.
In Nur, 2013 ONCA 677, affd 2015 SCC 15, the Court of Appeal rejected the
argument that s.7 of the Charter was violated by a statutory scheme that permitted the
Crown to trigger a mandatory minimum sentence of three years imprisonment (under
s.95 of the Criminal Code) by electing to prosecute by indictment without having to
explain or justify the decision in a public and transparent manner. The Charter argument
implied some form of judicial oversight over the exercise of Crown discretion that could
only blur the constitutionally fundamental distinction between the role of the prosecutor
and the role of the judiciary and potentially undermine the independence of both.
Moreover, s.7 of the Charter could not be found to have been violated on the basis that
the scheme effectively permitted the Crown to determine the sentence as it was
Parliament that had determined the range of sentences available to the trial judge.
Accordingly, a bare allegation of abuse of process is insufficient and, therefore, it
would not suffice for an applicant to allege abuse of process based on the fact that the
Crown decided to pursue the charges against him but withdrew similar charges against
a co-accused: Nixon, at para. 62. Similarly, in Anderson, 2014 SCC 41, the
Newfoundland Court of Appeal erred in determining that the Aboriginal respondents s.7
Charter rights were violated having regard to the lack of explanation on the part of the
Crown for having sought a greater punishment by reason of a prior conviction. As the
Crowns decision to seek a greater punishment was a matter of prosecutorial discretion
and, therefore, reviewable only for abuse of process, the claim had to fail in the
complete absence of any evidence to support it.
Conversely, the Crowns repudiation of a plea agreement satisfies the threshold
burden because it is not just a bare allegation, but is evidence that the Crown has gone
back on its word: Nixon, at para. 63; Anderson, at paras. 52-54. A proper evidentiary
foundation might also be provided by the prosecutorial discretion having been
exercised in a manner that contravened a Crown policy or guideline: Anderson, at para.
56.
Where the threshold burden has been satisfied and the Crown is the only party to
information relevant to the decision in issue, the evidentiary burden shifts to the Crown
to enlighten the court on the circumstances and reasons behind its decision: Nixon, at
para. 63. While the ultimate burden of proving an abuse of process remains on the
38
applicant, the Crown`s provision of little or no explanation to the court should weigh
heavily in favour of the applicant: Nixon, at para. 63.
The Crowns election to prosecute a hybrid offence by indictment only to increase
the accuseds punishment without regard to the circumstances of the case might be
found to impair the integrity of the criminal justice system in a broad sense by breaching
the Crowns role as a minister of justice to act objectively, moderately and impartially
to ensure that justice is done, per Boucher, 1954 CanLII 3 (S.C.C.), Henderson, 1999
CanLII 2358 (Ont.C.A.), at paras. 22-23. The requisite objectivity requires that a rational
assessment of facts be brought to bear in making decisions related to a case: Regan,
2002 SCC 12, at paras. 89 and 156. The case law recognizes that an abuse of process
may arise where the Crown, through control over the mechanics of the prosecution, acts
to unfairly increase an accuseds punishment. In Larche, 2006 SCC 56, Fish J., on
behalf of the court, stated (at para. 39):
It is true that prosecutorial discretion in the laying of charges will not lightly be
interfered with by the courts. But proceedings cannot be delayed abusively to increase
punishment: Parisien (1971), 3 C.C.C. (2d) 433 (B.C.C.A.), particularly at p. 437. Nor
can offences be artificially fractioned in the pursuit of a like objective.
While the exercise of prosecutorial discretion is generally amenable to limited
judicial review, it is open to challenge in the event that it relates to a constitutional
obligation: Anderson, 2014 SCC 41, at para. 45. Prosecutorial discretion provides no
shield to the Crowns failure to fulfill a constitutional obligation, including the duty to
provide proper disclosure: Anderson, at para. 45.
In the event that a Crown decision in conducting a prosecution is a matter of the
Crowns tactics and conduct before the court rather than prosecutorial discretion, it is
subject to review on the basis of the inherent jurisdiction of a court to control its own
processes rather than by the constitutional principle of prosecutorial independence:
Anderson, 2014 SCC 41, at para. 57; Gill, above, at paras. 55-56; R.(S.J.), above, at
para. 121. This jurisdiction provides both superior and statutory courts with the powers
to penalize counsel for ignoring court rulings or orders or for inappropriate behaviour:
Andersen, 2014 SCC 41, at para. 58. Courtroom tactics or conduct may also be found
to amount to an abuse of process, but an abuse of process is not a precondition for
judicial intervention as it is for matters of prosecutorial discretion: Anderson, at para. 61.
At the same time, the adversarial system requires that courts accord a high degree of
deference to the tactical decisions of counsel and generally refrain from interfering with
the conduct of the litigation itself, as opposed to the inappropriate conduct of a litigant:
Anderson, at para. 59. Thus, Crown counsel is entitled to have a trial strategy and to
modify it as the trial unfolds, provided that the modification does not result in unfairness
to the accused, and a judge may exceptionally override a tactical decision in order to
prevent a Charter violation: Anderson, at para. 60.
The Crowns tactics and conduct before the court, to the extent that it may result
in a deprivation of life, liberty or security of the person within the scope of s.7 of the
Charter, is subject to review for compliance with the principles of fundamental justice
which encompasses both branches of the abuse of process doctrine, arbitrariness in the
exercise of prosecutorial discretion and gross disproportionality relative to the state
39
interest: Gill, above, at paras. 38 and 58-59; Nur, 2013 ONCA 677, at para. 197.
In respect of arbitrariness, a decision is arbitrary and contrary to the principles of
fundamental justice if it bears no relationship to, or is inconsistent with, the objective of
the relevant legislation: Gill, above, at para. 64; Nur, above, at para. 197. A decision is
also arbitrary if it bears no relationship to the objectives of a policy in the Crown Policy
Manual informative of the proper exercise of the prosecutors discretion: Gill, at para.
67. However, the arbitrariness assessment does not involve a consideration, on any
standard, of the merits of the decision: Gill, at para. 68. In respect of gross
disproportionality, if the decision results in a deprivation of liberty that is so extreme as
to be clearly disproportionate to any legitimate government interest furthered by the
exercise of the prosecutors discretion, it will contravene the principles of fundamental
justice: Gill, at para. 71.
In Gill, above, where a challenge to the Crowns decision to seek a greater
punishment by reason of dated prior convictions was considered a matter of the
Crowns tactics and conduct before the court (incorrectly decided in light of Anderson,
2014 SCC 41), the Court of Appeal nevertheless determined that there was no abuse of
process or deprivation of liberty inconsistent with principles of fundamental justice. It
was not suggested that the Crowns decision would undermine the integrity of the
criminal justice system and there was no procedural unfairness. The fairness branch
was not concerned with the trial judges notions as to the suitability of the minimum
sentence triggered by the Crowns decision. Exposure to a constitutionally valid
minimum sentence was not unfair in any relevant constitutional sense.
The Crowns decision in Gill, above, also could not be found to be arbitrary or
grossly disproportionate. With respect to arbitrariness, there was a prima facie
relationship between the decision and the objective of the relevant law to
denounce/deter repeated drinking and driving offences by providing minimum jail terms
for repeat offenders. There was also a relationship between the decision and the
objectives of the Crown Policy Manual, which was to ensure that the prosecutors
discretion was informed by the mitigating and aggravating factors of the specific case,
including any prior convictions and the timing of them. Provided that the decision was
predicated on the existence of discretion and an assessment of the relevant factors, it
was consistent with the objectives of the policy regardless of how the discretion was
exercised or the trial judges view of the merits of the decision.
In Nur, 2013 ONCA 677, affd on other grounds 2015 SCC 15, Parliaments
decision in s.95 of the Code to create a two-year gap between the one year maximum
sentence available on a summary conviction prosecution and the three year mandatory
minimum jail sentence on an indictable prosecution, while severely restricting the
flexibility of the hybrid procedure, was not arbitrary in a constitutional sense. The
narrowness of the summary conviction option was consistent with Parliaments objective
to stress deterrence and denunciation for gun-related criminal activity and the fact that it
would result in an offender receiving an unfit sentence did not afford evidence that it
operated arbitrarily. Mandatory minimum sentences necessarily resulted in some
offenders receiving sentences that would be unfit under general sentencing principles,
but such sentences became a constitutional problem only if the unfitness reached the
40
level of gross disproportionality.

(D) Narcotics Offences
Dickey, 2015 BCSC 191, [2015] B.C.J. No. 766
The minimum sentence of two years imprisonment under s.5(3)(a)(ii)(A) was
found to violate s.12 of the Charter both in relation to the offender and on the basis of
reasonable hypothetical. The offence involved the 27-year-old offender, who agreed to
meet an undercover police officer to sell him $100 of cocaine at a building that was
formerly a middle school, having been found on a sidewalk adjacent to the school with
seven small Ziploc baggies that contained in total 3.9 grams of cocaine. The minimum
term was grossly disproportionate to the appropriate sentence of six months
imprisonment (fit sentence determined by the offenders cocaine addiction/limited
criminal record/rehabilitative steps/unsophisticated dial-a-dope operation/limited
quantity/ no targeting of young persons) given that it was four times the fit sentence and
would have to be served at a distant location, resulting in fewer visitations. The
minimum sentence also failed to survive constitutional scrutiny on the reasonable
hypothetical of a youthful first offender who, with no intention to traffic to a young
person, sold a very small amount of a Schedule I drug, not for profit, but to support
his/her addiction. [Note: The Crown failed to prove the pre-condition to trigger the
minimum sentence commission of the offence in or near a school, on or near school
grounds or in or near any other public place usually frequented by persons under the
age of 18 years and the court addressed the Charter issue in the event that its finding
in respect of lack of proof of the pre-condition was not upheld on appeal].
Smith, [1987] 1 S.C.R. 1045, 34 C.C.C.(3d) 97, 40 D.L.R.(4th) 435, 58 C.R.(3d) 193
(S.C.C.)
The mandatory minimum sentence of 7 years imprisonment imposed by s.5(2) of
the Narcotic Control Act, R.S.C. 1985, c.N-1 violates s.12 of the Charter and is of no
force and effect.
A mandatory minimum term of imprisonment is not in itself cruel and unusual.
However, the 7-year minimum prison term is grossly disproportionate when examined in
light of the wide net cast by s.5(1) of the N.C.A, as that section does not differentiate
between cases depending on the nature of the narcotic imported, the quantity imported,
the purpose for the importation (i.e. personal use or trafficking), and the existence or
non-existence of previous convictions for similar offences. The minimum penalty
applies to such a wide range of activities, from importation of a large amount of heroin
for trafficking to importation of a small amount of marijuana for personal use. The
Court found that a seven year sentence for the importation of a small quantity of a less
dangerous narcotic for personal use would be grossly disproportionate to what that
small offender deserves.
Prosecutorial discretion could not be employed to avoid possible s.12 violations,
as this would totally disregard s.52 of the Constitution Act which, in providing that any
law which is inconsistent with the Charter is of no force and effect to the extent of the
inconsistency, imposes a duty on the court to make that pronouncement, and not to
delegate the avoidance of a violation to the prosecution.
41
Lamer J. held that section 5(2) was not a reasonable limit under s.1 of the
Charter. The purpose of the impugned provision, namely the deterrence of a serious
crime, was of sufficient importance to warrant overriding s.12. However, the means
chosen to achieve the objective did not impair as little as possible the right in question
because it was not necessary to subject the small offender to the same punishment as
the serious offender to achieve this objective. The objective could be achieved by
correlating the minimum sentence to a variety of factors including the nature and
quantity of the narcotic and the previous record of the offender.
Malmo-Levine; Caine, [2003] S.C.J. No. 79, 179 C.C.C.(3d) 417, 314 N.R. 1 (S.C.C.)
The majority of the Supreme Court held that the lack of any mandatory minimum
sentence together with the existence of well-established sentencing principles meant that
the mere availability of imprisonment on a charge of possessing marijuana could not,
without more, violate the principle against gross disproportionality.
The majority of the court decided that the issue of punishment for the simple
possession of marijuana had to be approached under s.12 of the Charter, rather than
under s.7, although it had implications for both s.7 and s.1. The majority did not think that
there was a principle of fundamental justice embedded in s.7 that would give rise to a
constitutional remedy against a punishment that did not infringe s.12. To find that gross
disproportionality of punishment is required under s.12, but a lesser degree of
disproportionality suffices under s.7, would render incoherent the scheme of interconnected legal rights set out in ss.7 to 14 of the Charter by attributing contradictory standards
to ss.12 and 7 in relation to the same subject matter. The majority stated that the result
would remain the same even if it were persuaded by the dissenting opinion of Arbour J.
that punishment should be considered under s.7 instead of s.12. In both cases, the
constitutional standard was gross disproportionality and the standard was not met in either
case. In any event, according to the majority, if the penalty of imprisonment were found to
violate the gross disproportionality standard, the constitutional remedy would have to
address the range of available penalties rather than the decriminalization of the underlying
conduct of marihuana possession.
The majority of the court determined that the requirement of proportionality in
sentencing undermined rather than advanced the accuseds argument. There was no
need to turn to the Charter for relief against an unfit sentence because if imprisonment
was unfit in a particular case it would not be imposed, and if imposed, it would be reversed
on appeal.
Lloyd, 2014 BCPC 8, revd 2014 BCCA 224
The British Columbia Provincial Court struck down the mandatory minimum
sentence of one year for possession of cocaine for the purpose of trafficking by a
person convicted of, or who has served a term of imprisonment for, a designated drug
offence within the past 10 years. The court held the mandatory minimum sentence
violated the right against cruel and unusual punishment, but no violations of ss.7 or 9
were established. In separate reasons, the court held the violation was not saved by s.1
of the Charter: Lloyd, 2014 BCPC 11.
The court applied the two-step test for gross disproportionality described in Nur,
42
2013 ONCA 677. As applied to the accused, the court held that the minimum sentence
was not grossly disproportionate, given that he has served several other jail sentences
and that the present sentence would be reduced to account for time served and the
accused will likely be subject to statutory remission. The sentence was found not to be a
significant departure from the prevailing judicial approach to sentencing in relation to
trafficking Schedule 1 substances (at para. 45). As a result, the accused would only
benefit from a finding of unconstitutionality if there was an inflationary effect on the
sentence he would have otherwise received.
The accused put forward a reasonable hypothetical where an addict is in
possession of a small amount of a schedule I substance, which he intends to share with
another person. Noting the broad application of traffic under the CDSA, the court held
that the moral culpability of such a person is much smaller than someone selling large
quantities of the substance for a profit. A one-year jail sentence for such an individual
would violate s.12 (at para. 54):
The offender in the identified hypothetical would have a prior conviction for
a designated drug offence which may be more than ten years old. He or
she is likely an addict but may instead be a recreational user of drugs.
That is a personal characteristic which is not relevant to a reasonable
hypothetical. All sorts of drug users share drugs. A one year jail sentence
for this hypothetical offender goes well beyond what is justified by the
legitimate penological goals and sentencing principles of the CDSA. It is a
sentence which Canadians would find abhorrent or intolerable.
Accordingly, I find that the mandatory minimum sentence of imprisonment
for one year required by s. 5(3)(a)(i)(D) of the CDSA constitutes cruel and
unusual punishment.
The British Columbia Court of Appeal, however, held that the sentencing judge
erred: the range of sentence before the introduction of the mandatory minimum
sentence would still have placed the sentence above the one-year minimum. Therefore,
the effect of the inflationary floor was not applicable. The Court of Appeal further held
that the sentencing judge erred by purporting to make a declaration of constitutional
invalidity. While provincial courts can decline to apply unconstitutional legislation, they
cannot strike down legislation in the same way as superior courts.
(E) Motor Vehicle Offences
Goltz, [1991] 3 S.C.R. 485, 67 C.C.C.(3d) 481, 7 C.R.R.(2d) 1, 8 C.R.(4th) 82, (S.C.C.)
The minimum penalty of 7 days imprisonment prescribed by s.88(1)(c) of the
Motor Vehicle Act, R.S.B.C. 1979, c.228, for driving while under suspension where the
suspension arose from the application of s.86(1)(a)(ii) of the Act, does not constitute
cruel and unusual punishment.
Applying the two-phased test, the accuseds personal circumstances did not
disclose any gross disproportionality. A prohibition order made under s.86(1)(a)(ii) is
only made when the superintendent is satisfied that the motorist had an unsatisfactory
43
driving record and that suspension was necessary in the public interest. Further, the
offence is committed when one drives knowing of the prohibition. These safeguards,
along with some others, ensure that the prohibition will not be imposed for trivial
infractions. The accused had been prohibited from driving and never even sought to
appeal the prohibition, and knowingly violated the prohibition. The effect of the
sentence was not grossly disproportionate. The accused failed to provide a reasonable
hypothetical situation which would constitute cruel and unusual punishment. The
regulatory system ensures that it will be exceptionally rare that a small offender of the
kind hypothesized in Smith will ever be subjected to the minimum penalty of s.88(1)(c)
where the prohibition is the result of the action of the superintendent under s.86.
Parsons (1988), 40 C.C.C.(3d) 128, 68 Nfld. & P.E.I.R. 206 (Nfld.S.C.)
Section 239(1), which provides for a minimum penalty of 90 days imprisonment
for a third or subsequent offence under s.237 (impaired driving) or s.238 (failing to
provide a breath or blood sample), does not constitute cruel and unusual punishment.
The minimum penalty depends upon the accuseds previous convictions; it is only the
repetition of the offence that brings the mandatory jail term into effect. While a
mandatory minimum period of imprisonment of 90 days is severe, it is not cruel and
unusual because lighter penalties have obviously failed to curb the accuseds continued
drunk driving.
Kumar (1993), 85 C.C.C.(3d) 417, 20 C.R.R.(2d) 114 (B.C.C.A.), leave to appeal to
S.C.C. refused 20 C.R.R.(2d) 114n (S.C.C.)
The accused pleaded guilty to failing to provide a breath sample under s.254(3).
Prior to sentencing, the Crown served notice under s.665(1) of intent to seek greater
punishment due to prior convictions contrary to s.253(b). The Crown invoked the
mandatory minimum sentence of 14 days imprisonment under s.255(1)(a)(ii). The
provisions do not violate s.12. The legislative intent is to protect others who use the
roads from injury and death. The purpose of a minimum penalty is to deter repeat
offences. Minimum sentences would be ineffective if they only applied to those
convicted of impaired driving and not to those who refuse to take a sobriety test,
because if that were so, previous offenders suspected of impaired driving would
inevitably refuse to take the test. However, there is a lack of a time limit in s.255(1)
between commission of the first and subsequent offences. The discretion given to the
Crown to invoke a past conviction whose significance for sentencing purposes may be
long spent (because convicted years ago) in order to oblige the court to impose a
sentence of imprisonment in respect of a minor subsequent offence introduces an
element of arbitrariness into the process. However, there was nothing commonly
grossly disproportionate. Where gross disproportionality does result (for example,
where there is a long period of good behaviour between convictions), a constitutional
exemption may be applied. Further, the discretion afforded by s.665 to serve notice of
increased penalty is not unconstitutional. As per Smith, above, prosecutorial discretion
is not to be taken into account as a factor which can be relied on to prevent minimum
sentences from being inappropriately imposed.
44
Stasuk, [2002] B.C.J. No. 798 (Prov.Ct.) and Mackenzie, 2001 BCPC 301, [2001] B.C.J.
No. 2415
These decisions highlight the disagreement at the provincial court level in British
Columbia respecting the effect of the Supreme Court of Canada decision in Goltz,
above. The disagreement relates to the imposition of a mandatory minimum sentence
where the accused breaches a 24-hour roadside driving suspension imposed by a
police officer who has reasonable and probable grounds to believe that the ability to
drive a motor vehicle is affected by alcohol or drugs. One line of cases (which includes
Stasuk) holds that portions of the Goltz decision in the British Columbia Court of Appeal,
which were not specifically overruled by the Supreme Court of Canada, are still the law
so that the mandatory minimum sentence is only constitutionally sound where the
Superintendent has prohibited the individual from driving because of a poor driving
history. The other line of cases (which includes Mackenzie) holds that the decision of
the Court of Appeal decision in Goltz cannot be relied upon as authority for the
proposition that an application of the mandatory jail term in the Motor Vehicle Act (B.C.)
is unconstitutional except where the underlying reason for the suspension is a poor
driving record. For more decisions which adopt one or the other line of reasoning, one
should see the cases cited in Stasuk and Mackenzie. Also see Anthony, [2004] B.C.J.
No. 1537 (Prov.Ct.) (below).
Sanghera, [2002] O.J. No. 173, 22 M.V.R.(4th) 155, (C.J.)
The court granted the accused, who was convicted of impaired driving, a
constitutional exemption from the effect of a notice by the Crown seeking a higher
penalty on the grounds that the accused had prior related convictions about 13 years
earlier. The court referred to the Ontario Crown Policy Manual (a copy of which was
before it). The manual stated that Crown counsel must, as a general rule, make an
application to seek a higher penalty in all cases where the accused has a previous
conviction for a drinking and driving offence within a five-year period. The manual also
stated that it may be appropriate for Crown counsel to exercise his or her discretion and
seek an increased penalty in cases where the accuseds previous conviction for a
drinking and driving offence is outside the five-year period. The manual provided
potentially aggravating factors to be considered in relation to convictions beyond 5
years. However, in the present case, the court found that the Crown had not attempted
in a serious way to correlate aggravating factors with the approximate 13-year time
period between convictions. The Crown emphasized the importance of a deterrent
sentence for all repeat offenders, seemingly without regard for the limiting effect of the
5-year standard. Here, the facts were of insufficient seriousness, particularly in the
context of the extended time period between convictions, to justify overriding the courts
opportunity to determine the fitness of a custodial or non-custodial sentence. The court
concluded that the Crowns exercise of sentencing discretion, in these circumstances,
requiring a mandatory minimum sentence, would bring about an unnecessarily and
disproportionately harsh result, and reflect an arbitrary exercise of that discretion. For a
similar result see: Cordero, [2001] O.J. No. 2901 (C.J.).
Middlebrook, [2002] O.J. No. 666 (C.J.) (see Garcia, below)
The court declared as unconstitutional s.255(1)(a)(iii) of the Criminal Code. This
45
provision provides for a mandatory minimum 90-day sentence on a third or subsequent

conviction for impaired driving and refusing to provide a breath sample. The accused
pleaded guilty to these two offences. He conceded that, in and of itself, the minimum
sentence did not amount to cruel and unusual punishment for this offender and these
offences. The court, therefore, considered reasonable, hypothetical cases involving
impaired operation causing bodily harm and impaired operation causing death. The
court pointed out that what is required to commit these offences is no different than
impaired driving simpliciter and that there is no reason to expect that the profile of the
offender would be different. Nonetheless, if, in the very same factual circumstances,
bodily harm or death result, the offender would not be subject to a minimum penalty.
The court set out the following factual situations. If on a charge of impaired
driving causing bodily harm, the accused was convicted of the included offence of
impaired driving simpliciter, he would move from no minimum sentence to some type of
minimum sentence. If an offender, who had a previous conviction for impaired driving
causing bodily harm or death, was subsequently convicted with one of those two
offences, he would not be subject to a minimum sentence. A person charged with
impaired driving simpliciter will receive a minimum sentence of imprisonment and will
not be allowed to serve it as a conditional sentence in the community (s.742.1 of the
Criminal Code). A person charged with impaired driving causing bodily harm has a full
range of sentencing options available, including a discharge, suspended sentence and
probation, a fine, incarceration with a length of incarceration being left to the judge, and
the decision about whether the incarceration may be served in the community also left
to the judge. A person charged with impaired driving cause death would be in the same
situation as the person charged with impaired driving causing bodily harm, except that a
discharge would not be available. The court noted that with all of the above
hypotheticals, it assumed the Ontario context where a curative discharge under s.255(5)
is not available. While there are also mandatory minimum driving prohibition orders for
offenders convicted of impaired driving simpliciter, over 80 and refusing to provide a
breath sample, the prohibition orders for those convicted of impaired driving causing
bodily harm or death are discretionary, regardless of the accuseds record.
The court concluded that the minimum sentences were grossly disproportionate
because, while custody was a certainty in the accuseds case, it would not be a
certainty in similar but more serious cases. There was no apparent legislative end or
goal achieved by structuring the overall scheme in this way. Also, the disproportionality
conflicted with the purpose and principles of sentencing as set out in the Criminal Code.
Ultimately, the court imposed a conditional sentence: [2002] O.J. No. 667 (C.J.).
James, [2002] O.J. No. 4999, 8 C.R.(6th) 88, 33 M.V.R.(4th) 210, 100 C.R.R.(2d) 189,
(C.J.)
The accused argued that he would be subjected to cruel and unusual
punishment if the court imposed the applicable minimum punishment for failing to
provide a breath sample as required by s.255(1)(a)(ii) of the Criminal Code. Since he
had a prior conviction for driving 80 (one month previously), the provision mandated a
minimum sentence of 14 days imprisonment. The court adopted the analysis applied in
Middlebrook, above, to find that the mandatory minimum prison sentence for a simple
46
refusal does pose a grossly disproportionate punishment in reasonable hypothetical

circumstances when there are no mandatory minimum sentences for second time
offenders who cause bodily harm or death by driving impaired. However, the court
decided that in this case the appropriate remedy was not a stay the proceedings. A
stay of proceedings was only appropriate if the Charter breach had caused such
prejudice that there was no other appropriate remedy. Instead, the appropriate remedy
was not to apply the mandatory minimum under s.255(1)(a)(ii) in these sentencing
proceeding.
Gomes, 2003 ABCA 149, [2003] A.J. No. 567, 175 C.C.C.(3d) 125, 14 Alta.L.R.(4th) 95
In this non-Charter case, the court rejected the Crowns argument that the
accused, who was convicted of impaired driving causing bodily harm, was subject to the
mandatory minimum term of imprisonment set out on s.255(1)(a)(ii) of the Criminal
Code, because he had a prior conviction for refusing to provide a breath sample.
According to the court, the possibility that a repeat impaired driving offender who
causes bodily harm will not go to prison does not create an absurd result or necessitate
a strained interpretation of s. 255(1). By law, sentences must be proportionate to the
gravity of the offence and the degree of responsibility of the offender (s.718.1). In
imposing a sentence a court must take into consideration a number of principles,
including the requirement that the sentence should be similar to sentences imposed on
similar offenders for similar offences committed in similar circumstances (s.718.2(b)). A
proper application of the sentencing principles and case law should result in a fit
sentence for impaired driving causing bodily harm. The fact that a judge has greater
flexibility in sentencing does not mean that confining s.255(1)(a) to impaired driving
simpliciter is illogical or creates absurd results. Since the minimum sentencing
provisions in s.255(1)(a) do not apply to impaired driving causing bodily harm, the trial
judge was entitled to impose a conditional sentence.
White, [2003] N.J. No. 158, 227 Nfld. & P.E.I.R. 267, 41 M.V.R.(4th) 201 (S.C.T.D.)
The mandatory minimum sentence for a second offence of impaired driving, as
provided by s.255(1)(a)(ii) of the Criminal Code, did not violate s.12 or justify a
constitutional exemption even though the second offence occurred about 13 years
after the first offence. Regarding the gravity and particular circumstances of the
offence, the court noted that the accused drove his motor vehicle while impaired and
actually drove it across the oncoming lane for traffic and off the road and into a
snowbank. While the accuseds actions did not result in any injuries to others, they
could have led to much more serious consequences for others. Regarding the
characteristics of the offender, the aggravating factors were the accuseds previous
criminal record, excluding the previous drinking and driving conviction. Also, at the time
of the offence, he was subject to a probation order and a recognizance both with a
condition that he keep the peace. The court was satisfied that the minimum sentence
was consistent with a number of valid penological goals and sentencing principles,
including protection of the public, specific and general deterrence and denunciation.
The minimum mandatory sentence was, therefore, not grossly disproportionate. A
consideration of the gravity of the offence and the characteristics of the offender did not
diminish the degree of his criminal responsibility.
47
Garcia, [2004] O.J. No. 1714, 20 C.R.(6th) 63, 2 M.V.R.(5th) 169, [2004] O.T.C. 346
(S.C.J.)
The appellate court held that s.255(1)(a)(iii) of the Criminal Code, which provides
for an increased and mandatory minimum punishment for third and subsequent
convictions of impaired driving, did not violate s.12 of the Charter. At trial, the Crown
served the accused with a s.727(1) Criminal Code notice in order to seek a greater
punishment for the subsequent offence. The effect of the notice was to subject the
accused to a mandatory 90-day term of imprisonment for his third conviction. A
conditional sentence was not available because s.742.1 of the Criminal Code did not
permit such a sentence where the offence was punishable by a minimum term of
imprisonment. The trial judge imposed a conditional sentence by applying her earlier
decision in Middlebrook, [2002] O.J. No. 666 (C.J.) (discussed above), which declared
s.255(1)(a)(iii) of the Criminal Code unconstitutional as authorizing cruel and unusual
punishment. The appellate court substituted the mandatory minimum sentence of 90
days incarceration (service of the sentence was stayed having regard to the conditional
sentence of imprisonment already served, the passage of time since conviction, and the
reality that the accuseds sentencing became a vehicle for appealing the Middlebrook
decision).
The appellate court noted that the trial judge proceeded on the basis that the
unavailability of a conditional sentence of imprisonment for impaired driving causing
harm or death necessarily meant that the s.255(1)(a)(ii)(iii) mandatory minimum
sentencing scheme was grossly disproportionate. She did not consider whether the
sentencing structure for the consequence-based offences might itself be too lenient.
She also did not distinguish between the use of a certain mandatory penalty in the
instance of a recidivist impaired driving offender and the scope of sentencing discretion
properly available to the court for a first offender. To the extent that the trial judge made
comparisons to sentences available for other crimes in the same jurisdiction to find a
s.12 Charter violation, she relied on a single contextual or guideline factor despite the
recognized caution not to rely on any one factor as determinative of constitutionality.
The hypotheticals used by the trial judge court departed from the same crime rule.
The appellate court concluded that s.255(1)(a)(iii) did not create a grossly
disproportionate penalty. In other words, according to the appellate court, a reasonably
informed person knowledgeable of the circumstances of Parliaments objectives would
not find the statutory provision abhorrent or as outraging standards of decency.
While the appellate court pointed out that this case did not engage s.7 of the
Charter, it did not foreclose the possibility of a s.7 Charter review where, for example,
the Crown sought to use a very dated prior impaired driving conviction to invoke a
mandatory minimum penalty or where, as here, the Crowns reliance on a pre-Charter
case compelled the trial judge to foreclose from the offender the benefits of the
progressive punishment of 14 days imprisonment for a second offence as opposed to
90 days for a third or subsequent offence. The appellate court made this suggestion in
the context of the government alone being able, through invocation of the s.727(1)
notice provision, to determine the application of s.255(1)(a)(iii) and in turn eligibility for a
conditional sentence of imprisonment. The appellate court stated that while the
proportionality protection in sentencing under s.7 of the Charter is also a standard of
48
gross disproportionality, proportionality considerations did not exhaust the s.7 protection
in sentencing. (Note: The Crown successfully appealed against the order that it pay the
accuseds costs in Garcia (2005), 194 C.C.C.(3d) 361, 195 O.A.C. 64, 12 M.V.R.(5th)
169, [2005] O.J. No. 732 (C.A.), wherein the constitutional issue was not before the
court.)
Gerardy, [2004] M.J. No. 277, 185 Man.R.(2d) 181, 7 M.V.R.(5th) 260 (Prov.Ct.)
The accused, who had a prior related conviction, pleaded guilty to driving while
over 80. The Crown served a notice under s.727 of the Criminal Code seeking a greater
punishment by reason of the previous conviction as provided by s.255(1)(a)(ii). The
accused unsuccessfully applied for a declaration, pursuant to s.52 of the Constitution Act,
1982, that those two provisions were of no force and effect as they violated ss.7 and 12 of
the Charter and could not be saved under s.1 of the Charter. Regarding s.12, the accused
argued that s.255(1)(a) allowed for the imposition of grossly disproportionate punishment
in reasonable hypothetical circumstances because persons in circumstances similar to his,
but charged with impaired driving causing bodily harm or impaired driving causing death,
would not be subject to a minimum penalty and had the full range of sentencing options
available, including a conditional sentence. The court found the reasoning in Garcia,
above, to be persuasive. The accused had not brought forward reasonable hypothetical
circumstances to establish gross disproportionality. Moreover, finding a s.12 breach would
not demonstrate the proper deference to a valid exercise of legislative discretion.
Anthony, 2004 BCPC 239, [2004] B.C.J. No. 1537
The mandatory minimum sentencing provisions in the Motor Vehicle Act (B.C.)
for driving while subject to a 24-hour suspension, which in this case required a sentence
of seven days incarceration and a $300 fine, did not violate s.12 of the Charter. The
court noted that the law in British Columbia regarding the application of the mandatory
minimum sentencing under the Motor Vehicle Act was in a somewhat confused state.
Some of the cases suggested that the British Columbia Court of Appeal decision in
Goltz was still good law save the one specific restriction overturned by the Supreme
Court of Canada in Goltz, above. The Supreme Court dealt specifically only with the
applicability of the mandatory minimum s.95 Motor Vehicle Act sentences in relation to a
person who was caught driving while suspended from driving by the Superintendent of
Motor Vehicles as a result of a poor driving record. Other cases suggested that to
interpret the Supreme Court decision in Goltz in such a restrictive manner was wrong in
law.
Defence counsel provided the court with decisions of other judges of the
Provincial Court which held that the imposition of the type of mandatory sentence at
issue here violated s.12. However, the court decided that these decisions were not in
accord with the decision of a higher court in Knoche, [1994] B.C.J. No. 2102 (S.C.),
which questioned whether any portion of the Court of Appeal decision in Goltz survived
the Supreme Court decision. In any event, according to Knoche decision, even if part of
the Court of Appeals decision survived, it would still be necessary to consider whether
the imposition of the mandatory sentence on a person who drove contrary to a 24-hour
suspension was cruel and unusual in the circumstances of the particular case or in any
reasonable hypothetical case. The court in Knoche found that s.12 had not been
49
violated.
The court in Anthony felt bound by Knoche. Nonetheless, it still performed an
individualized assessment on the matter as it pertained to Anthony himself. First, the
court pointed out that the police officer who dealt with Anthony at the roadside saw
symptoms that were indicative of some level of impairment by alcohol, Anthony
admitted to drinking, and the officer initially had his attention drawn to Anthonys motor
vehicle because of complaints of an erratic driver. Second, the officer acted reasonably
by prohibiting Anthony from driving for 24 hours. Third, Anthony did not challenge the
suspension by providing a breath sample or by obtaining a doctors medical certificate.
Fourth, when Anthony arrived home he did not call a lawyer. Fifth, Anthony went out
with his vehicle a few hours later to buy cigars. Sixth, Anthony knew when he was
driving that he was prohibited from doing so. Finally, Anthony got into an unexplained
accident.
Although Anthony had borne a significant financial cost as a result of that
accident, it was his bad driving and not the prohibition itself which was to blame for the
accident and the consequent loss. The fact of the accident was in itself suggestive of
poor judgment that had been impaired by alcohol consumption. If a person knowingly
violated a 24-hour suspension, the impact of the minimum sentence would not outrage
the standards of decency or appear grossly disproportionate to the offence. The sevenday jail term, even served intermittently, might be excessive in response to the crime in
a relative sense, but the court did not find that it amounted to cruel and unusual
punishment in relation to Anthony and his circumstances. Also see: Stasuk, 2002
BCPC 123, [2002] B.C.J. No. 798 (Prov.Ct.) and Mackenzie, [2001] B.C.J. No. 2415
(Prov.Ct.) (above).
Locke, 2004 ABPC 152, [2004] A.J. No. 1206, 2004 CarswellAlta 1412, 7 M.V.R.(5th)
81
The penalty of $115 for failing to wear a seatbelt while driving a motor vehicle did
not amount to cruel and unusual punishment so as to breach s.12 of the Charter. The
leading cases made it that the test to find cruel and unusual punishment was one of gross
disproportionality. Considering the seriousness of the offence, the personal circumstances
of the offender and the particular circumstances of the case, in the context of the entire
legislative scheme of penalties for traffic related offences, the specified penalty was
proportional and constitutionally valid.
Martin, 2005 MBQB 185, [2005] M.J. No. 300, 2005 CarswellMan 292, 22 M.V.R.(5th)
273
The accused failed in her attempt to have the minimum statutory punishment for
a second offence of driving while over 80 declared to be of no force and effect on the
basis of a breach of s.12 of the Charter.
Sever, 2006 ONCJ 138, [2006] O.J. No. 1593, 2006 CarswellOnt 2407, 34 M.V.R.(5th)
87
The court granted a constitutional exemption from the minimum sentence of 90
days for a third offence of impaired driving after the Crown had provided notice seeking
an increased penalty pursuant to ss.727(1) and 255(1) of the Criminal Code. The court
50
treated the offence as being a second offence after deciding that the accuseds first
conviction in 1987 was spent for the purposes of sentencing, particularly as the Crown
had not given notice for an increased penalty when he committed his second offence in
2002. The court noted that the accused had not been given the benefit of progressively
more severe mandatory minimum sentences.
Luc, [2007] O.J. No. 4209, 222 C.C.C.(3d) 299 (C.J.)
The court granted a constitutional exemption and imposed a sentence of 45 days
in an impaired driving case where a mandatory minimum sentence of 90 days would
have applied as the Crown issued a notice of increased penalty on the basis of the
accuseds two prior convictions. The court noted that the combined effect of ss.727(1)
and 255(1)(a)(iii) of the Criminal Code effectively allowed the Crown to determine the
sentence and preclude a disposition other than imprisonment. The court emphasized
that it was up to the sentencing judge to ensure that the sentence imposed was in
accordance with the principles of fundamental justice. Although s.12 of the Charter was
averted to by the court and the court suggested that a 90-day sentence would be
disproportionate, the court also indicated that it could grant a constitutional exemption
without ruling on the constitutionality of the relevant provisions. The court cited the
decision in King, 2007 ONCJ 238, [2007] O.J. No. 2099, 221 C.C.C.(3d) 71, where it
was determined, in similar circumstances, that the combined effect of ss.255(1) and
727(1) violated ss.7 and 15(1) of the Charter, especially as it negated the effect of
s.718.2(e), which required the sentencing judge to consider all available sanctions other
than imprisonment that were reasonable in the circumstances, with particular attention
to the circumstances of aboriginal offenders. The court in King held that ss.727 and 255
remained in force and effect, but not for aboriginal offenders to whom the Crown gave
notice of increased penalty. It granted the accused a constitutional exemption and
imposed a sentence of 45 days. A similar argument in the case of another aboriginal
offender failed: Boissoneau, 2006 ONCJ 561, [2006] O.J. No. 5607.
Schwartz, 2010 ONCJ 504
The accused challenged the constitutionality of the mandatory minimum
provisions under s.255(1) on the basis that they violated ss. 7 and 12 of the Charter.
The accused had multiple drinking and driving convictions on his record, though the last
conviction occurred 16 years prior. The Crown had filed notice of increased penalty and
so the accused faced a mandatory 120 day jail sentence. The Charter argument
primarily aimed at the Crowns discretion to file the notice of increased penalty. The
defence argued that, given the mitigating circumstances in this case, a four month jail
term would constitute cruel and unusual punishment. This argument was rejected firstly
on the basis that it is within parliaments authority to enact mandatory minimum
sentencing laws. Secondly, the s.255 mandatory minimums are tempered by the
Crowns discretion not to file notice (at para. 12):
The rigour of the law is tempered by Parliament's additional step -creating the prospect of the prosecution not filing the notice. Absent that
forbearance, the minimum penalty follows. A prosecutor's declining to
51
forbear cannot, in my view, convert an otherwise constitutional law into

one which is invalid as a cruel and unusual punishment.
Almeida, 2008 ONCJ 631
The minimum penalty of $2000 for stunt driving under s.172 of the Highway
Traffic Act is not a cruel and unusual punishment contrary to s.12. The court reached
this conclusion after comparing s.172 to other offences in the Highway Traffic Act and
other provincial offences.
Dookie, 2012 ONCJ 719
The court upheld the constitutionality of s.255(1) of the Code, which fixes the
maximum penalty for those convicted summarily of certain drinking and driving offences
at 18 months, along with a minimum penalty of a $1000 fine. To argue that the
maximum sentence violates s.12 is to ignore the discretionary nature of such a
sentence. The courts reasoning mirrored the s.12 analysis of mandatory minimum
sentences (at paras. 12-16):
To some degree it seems to me that the standard to be applied here at
best for the accused is sort of a mirror image of how it is applied to
minimum periods of imprisonment. For minimum periods of imprisonment,
if one can think of reasonable hypotheticals in which the minimum period
of imprisonment is grossly excessive, the breach is made out.
Here, it seems to me that if one can think of reasonable hypotheticals
where the discretionary maximum could not be said to be grossly
excessive, no Section 12 argument could conceivably succeed.
In my view, one can think of very aggravated impaireds or over eighties in
which significant periods of imprisonment may be imposed, even on first
offenders. For example: persons driving very dangerous vehicles, such as
transports or public transportation vehicles whose readings were very
high, or who were grossly impaired; these persons may be, for example,
driving in very busy settings, such as major highways; they may perhaps
cause multiple vehicle accidents involving large amounts of property
damage and pose grave dangers to a large number of innocent users of
the roads, or their services. Such person may have had bad provincial
driving records, or be proceeding even without a licence. They may have
records of criminal convictions quite apart from drinking and driving related
records, involving significant jail terms.
In my view, at the end of a lengthy trial in which no insight or remorse was
shown, such persons might well appropriately receive very significant
reformatory terms.
Now, I accept that it might be said that even in such circumstances a
sentence of 18 months imprisonment could be seen as excessive, but that
is not the Section 12 test. The test is, could it be seen as grossly
excessive? I'm not satisfied that is the case.
Boschman, 2012 SKPC 131
52
The accused was convicted of his fifth drinking and driving offence. The Crown
served notice of elevated penalty, which meant the accused was facing a minimum
penalty of 120 days. The court held that given the aggravating factors in this case, the
accused was likely facing a lengthy term of incarceration regardless of the minimum
sentence. In light of the accuseds criminal history, the sentence was not contrary to
s.12 (at para. 19):
I have decided that this accused is not entitled to a constitutional
exemption but further, in my opinion, the sentence asked for by the Crown
in my opinion does not amount to cruel and unusual punishment. This is
Mr. Boschman's fifth conviction for a Criminal Code driving offence, or six
if you count the initial Driving while Disqualified. Clearly he has not
benefited from the leniency extended to him in the past twenty plus years.
Anderson, 2014 SCC 41
The accused, an Aboriginal man, was charged with driving with a blood alcohol
level over 80. Crown counsel served a Notice of intent to seek greater punishment by
reason of the accused's four previous impaired driving convictions, meaning that the
accused would be subject to a minimum sentence of not less than 120 days
imprisonment under s.255(1)(a)(iii).
The trial judge held that ss.255(1) and 727(1) violate s.7 of the Charter because
their combined effect is to transfer what is a judicial function to the prosecutor, namely,
the setting of the floor or minimum sentence in a given case. Further, the statutory
scheme violated s.15(1) of the Charter because it deprived an Aboriginal person of the
opportunity to argue for a non-custodial sentence in an appropriate case. The trial judge
held that these infringements were not saved by s.1 of the Charter. In order to ensure
compliance with s.7, he held that the Crown must in all cases, including those involving
non-Aboriginal offenders, provide justification for relying on the Notice. As for the
violation of s.15(1), he declared the statutory scheme to be of no force and effect as it
applied to Aboriginal offenders. Having determined that he was not bound by the
minimums in s.255(1), the trial judge imposed a 90-day intermittent sentence, two years
probation, and a five-year driving prohibition.
The Court of Appeal dismissed the Crown's appeal, holding that where the
Crown tenders the Notice at the sentencing hearing without considering the accused's
Aboriginal status, this renders the sentencing hearing fundamentally unfair, leading to a
s.7 Charter breach. The court held that there would be no breach of s.7 if the Crown's
policy statement regarding the decision to tender the Notice included a specific direction
to consider the offender's Aboriginal status. Because of the absence of such a direction,
and the lack of explanation on the Crown's part for its decision to tender the Notice, s.7
had been breached.
In a unanimous decision, the Supreme Court of Canada allowed the Crown's
appeal, set aside the order of the Court of Appeal, and substituted a 120-day jail
sentence, with service of the remainder of the sentence stayed in accordance with the
concession of the Crown. Moldaver J., writing for the court, held that Crown prosecutors
are not constitutionally required to consider the Aboriginal status of an accused when
deciding whether or not to seek a mandatory minimum sentence for impaired driving, for
53
two reasons:
While it is a principle of fundamental justice that a sentence be
proportionate to the gravity of the offence and the degree of responsibility
of the offender, the duty to impose a proportionate sentence rests upon
judges, not Crown prosecutors. Aboriginal status is one of the factors that
judges must consider when crafting a proportionate sentence. However,
there is no basis in law to support equating the distinct roles of the judge
and the prosecutor in the sentencing process; and
The principle that the accused asked the court to recognize that Crown
prosecutors must consider the Aboriginal status of the accused prior to
making decisions that limit a judge's sentencing options does not meet the
test that governs principles of fundamental justice. A principle of
fundamental justice must (1) be a legal principle, (2) enjoy consensus that
the rule or principle is fundamental to the way in which the legal system
ought fairly to operate, and (3) be identified with sufficient precision to
yield a manageable standard against which to measure deprivations of
life, liberty or security of the person. The principle advanced by the
accused did not meet the second requirement, as it was contrary to a
long-standing and deeply rooted approach to the division of responsibility
between the Crown prosecutor and the courts.
Moldaver J. then considered whether the Crown's decision to tender the Notice
was reviewable in some other way, and if so, on what standard. Decisions by Crown
prosecutors are either exercises of prosecutorial discretion or tactics and conduct
before the court. Prosecutorial discretion is an expansive term. It covers all decisions
regarding the nature and extent of the prosecution and the Attorney General's
participation in it. Prosecutorial discretion is entitled to considerable deference. It is
reviewable only for abuse of process. In contrast, tactics and conduct before the court
are governed by the inherent jurisdiction of the court to control its own processes.
Deference is not owed to counsel who behave inappropriately in the courtroom, but a
high degree of deference is accorded to the tactical decisions of counsel. Abuse of
process is not a precondition for judicial intervention in relation to a party's tactics and
conduct before the court. In the case at bar, tendering the Notice was a matter of
prosecutorial discretion. As a result, it was reviewable only for abuse of process. The
accused's abuse of process argument failed, as there was no evidence to support it.
(F) Murder
Mitchell (1987), 39 C.C.C.(3d) 141, 81 N.S.R.(2d) 57 (C.A.)
Section 669(b) (now s.742(b)), which provides for a mandatory minimum
sentence of life imprisonment with no eligibility for parole until having served at least 10
years of the sentence for those convicted of second degree murder, does not violate
s.12. The Court held that life imprisonment has always been an usual and acceptable
punishment for murder. Since it does not violate s.12 to hold for life a prisoner found to
be a dangerous offender subject only to release by the Parole Board, as per Lyons
(1987), 37 C.C.C. (3d) 1, [1987] 2 S.C.R. 309, then it certainly cannot violate s.12 to
54
hold a convicted murdered who is sentenced to life imprisonment with a 10-year period
of parole ineligibility, rather than the 7-year period which applies to offenders sentenced
to life imprisonment for other crimes.
Cairns (1990), 51 C.C.C.(3d) 90 (B.C.C.A.)
The imposition of a life sentence (s.235(1)) without eligibility for parole for 25
years (s.742(1)) for those convicted of first degree murder pursuant to s.231(2) does not
violate s.12. The court held that 25 years imprisonment for the planned and deliberate
taking of another human life does not constitute cruel and unusual punishment.
Luxton (1990), 58 C.C.C.(3d) 449, 79 C.R.(3d) 193, [1990] 6 W.W.R. 137 (S.C.C.)
The combined effect of s.231(1)(e), which provides that murder is first degree
when death is caused during forcible confinement, whether or not it is planned and
deliberate, and s.742(a), which provides a minimum penalty of life imprisonment without
eligibility for parole for 25 years, does not violate s.12. Moreover, there is a provision in
the Criminal Code (s.745) for judicial review of the period of parole ineligibility after the
accused has served 15 years of the sentence, and this provides for some sensitivity to
the individual circumstances of each case when it comes to sentencing.
Bowen (1990), 59 C.C.C.(3d) 515, 2 C.R.(4th) 225, [1991] 1 W.W.R. 466 (Alta.C.A.),
leave to appeal to S.C.C. refused 63 C.C.C.(3d) vi
The accused was convicted of first degree murder under section 231(4), which
deems murder as first degree regardless of whether it was planned and deliberate
where the victim is a police officer. The accused was sentenced to life imprisonment
without eligibility for parole for 25 years, pursuant to s.742(a). Section 231(4) in
conjuction with s.742(a) does not even prima facie violate s.12 of the Charter.
The offence committed was a very serious one, and there is no trivial way to
commit the offence of murdering a police officer. The intent, knowledge and results
must be grave to warrant a conviction. Therefore, it cannot be said that the minimum
punishment is grossly disproportionate.
Lefebvre (1992), 72 C.C.C.(3d) 162, [1992] R.J.Q. 590 (Que.C.A.), leave to appeal to
S.C.C. refused C.C.C. loc. cit., p.vi
The combined effect of s.231(4)(a), s.234 and s.745 does not violate s.12.
Section 231(4)(1) imposes a heavy burden on the Crown in establishing guilt, in that the
following must be proven: the accused killed the victim; the accused intended to cause
death, or intended to cause bodily harm that he knew was likely to cause death and was
reckless whether death ensued or not; the accused believed that the victim was a
police officer; the victim was in fact a police officer; the victim was acting in the course
of his duties when killed; there is no fact sufficient to give a defence; and there is no
fact sufficient to reduce the offence to manslaughter or a lesser offence. Further, s.745
allows the accused to apply after 15 years to reduce or remove the 25-year period of
55
parole ineligibility.
Sidoruk (1994), 17 C.R.R.(2d) 112, 25 C.R.(4th) 126 (B.C.S.C.)
The accused was convicted of second degree murder in 1982 and sentenced to
life imprisonment without eligibility for parole for 20 years. Under the Criminal Code,
persons convicted of second degree murder when they are under 18 years of age may
be eligible for parole after 5 to 10 years. The court held that the fact that a 20-year
period of parole ineligibility was no longer an option did not render the accuseds
sentence grossly disproportionate. The trial judge carefully considered the gravity of the
offence, the personal characteristics of the accused, and the circumstances of the case
in determining the 20-year period. The accuseds present incarceration without access
to parole did not violate s.12.
Wilson, [1999] B.C.J. No. 1371, 11 B.C.T.C. 26 (S.C.)
The 17-year-old accused was convicted of second degree murder after being
transferred to adult court. He and the co-accused entered the deceaseds bedroom and
subjected him to a prolonged and violent beating in the presence of his common law
wife and two small children. Since neither of them intended to kill the deceased, their
culpability was based upon their recklessness as to whether death ensued as a
consequence of the beating. The court rejected the accuseds argument that the
minimum sentence of life imprisonment with parole ineligibility for a period of seven
years, pursuant to the Criminal Code, violated s.12 of the Charter. Assuming without
deciding that the doctrine of constitutional exemption applied, the court denied the
accuseds request for a such an exemption. The co-accused, who was tried in youth
court, was sentenced to 3 years custody followed by 3 years of conditional
supervision. The accused did not advance the s.12 argument on the basis of
reasonable hypothetical circumstances but relied upon his actual circumstance in the
offence.
The court stated that society must be permitted to enact criminal sanctions that
reflect its legitimate values even though in individual circumstances they may result in
harshness or even disproportionate consequences. Parliament is entitled to establish
reasonable compartments of criminal conduct as opposed to customizing every
sentence to fit each accused and offence.
Thus, it is the test of grossly
disproportionate that protects the individual in the establishment of a legislative scheme
of sanctions in which the respective importance of the various goals of sentencing, such
as deterrence and rehabilitation, will vary according to the nature of the crime and in the
circumstances of the offender.
The accused had a serious anger problem and was a threat to other youths.
While he had taken some preliminary steps towards rehabilitation since the time of the
offence, the court was not satisfied that his violent tendencies as evidenced by his
conduct on the night of the murder would not occur again in similar circumstances
where he felt threatened or demeaned. The aboriginal background of the offender was
only one of many factors to be considered on sentencing and it was a factor that could
be accommodated to some measure within the penitentiary system. The co-accused
56
may have been sentenced to a lesser sentence, but that did not in and of itself amount
to an inconsistency in treatment of two persons convicted of the same offence. The
differences were the consequence of age, of the considerations such as those
expanded upon by the Court of Appeal in its reasons for returning the accused to trial in
ordinary court, and the differences in conduct during the offence itself. Moreover,
despite many common aspects, the accused was not similar to his co-accused. For one
thing, he was more sophisticated.
Latimer, [2001] S.C.J. No. 1, 150 C.C.C.(3d) 129, 39 C.R.(5th) 1 (S.C.C.)
The Supreme Court of Canada upheld the sentence of life imprisonment with no
eligibility for parole for ten years imposed on the accused Latimer for the second degree
murder of his twelve-year-old disabled daughter. The Supreme Court found that the
minimum sentence for second degree murder was not grossly disproportionate and
therefore did not constitute cruel and unusual punishment under s.12 of the Charter.
Since the accused conceded the general constitutionality of the relevant statutory
provisions here, his arguments were focused on the particularized inquiry under s.12,
that is, the effect of the sentence on the particular accused in the particular
circumstances of this case. Thus, the Supreme Court stated that only the individual
remedy sought by the accused, of a constitutional exemption, was at issue.
The Supreme Court reiterated that the test for determining whether a sentence
was disproportionate was properly stringent and demanding. The Supreme Court
stated that the greatest degree of criminal responsibility or moral blameworthiness was
attached to the conduct of an accused who commits an offence with subjective foresight
law. Even if the gravity of second degree murder was reduced in comparison to first
degree murder, it was still an offence accompanied by an extremely high degree of
criminal culpability. The Supreme Court considered the characteristics of the accused,
including the fact that he was by all accounts a loving and caring father, and the
particular circumstances of the offence, including the accuseds initial attempts to
conceal his actions, his lack of remorse and the vulnerability of his daughter. The
Supreme Court found that these characteristics and circumstances did not displace the
serious gravity of the offence.
The Supreme Court also found that the sentence was consistent with valid
penological goals and sentencing principles. While rehabilitation, specific deterrence
and protection of society were not triggered for consideration, the mandatory minimum
sentence played an important role in denouncing murder. Denunciation became much
more important where there was a high degree of planning and premeditation, the
offence and its consequences were highly publicized, and the victim was a vulnerable
person. The Supreme Court concluded that as there was no violation of the accuseds
s.12 rights, it was not necessary to decide whether or not the trial Judge erred in
granting a constitutional exemption rather than declaring the relevant statutory
provisions inoperative.
The Latimer decision does not advance the law on the availability of
constitutional exemptions. While the Supreme Court indicated that only a constitutional
exemption was at issue, it found it unnecessary to decide whether or not the trial Judge
erred in granting such an exemption. In fact, the Supreme Court did not provide any
57
substantive discussion on the availability of such a remedy and did not explicitly state
that such a remedy is available. The Supreme Courts discussion focused on whether
or not s.12 was violated in the particular circumstances of this case.
Morrissey, [2003] O.J. No. 5329, [2003] O.T.C. 1133 (S.C.J.)
The court dismissed the accuseds application for a constitutional exemption
under s. 12 of the Charter from the minimum penalty of life imprisonment with a
minimum 10-year parole ineligibility for second degree murder. The accused shot and
killed his ex-girlfriend. He then turned the gun on himself, thereby suffering a devastating
brain injury that caused severe physical and cognitive impairments. The defence argued
that the effect of the mandatory minimum sentence would be grossly disproportionate
given the accuseds disabilities. The Crown submitted that while the mandatory minimum
sentence might not be necessary to rehabilitate, deter or protect the public from the
accused, it was necessary to denounce his conduct and deter others. The Crown pointed
out that there was no evidence that the imposition of the mandatory minimum sentence
would place the accuseds life or health at risk. The Crown stated that the federal
correction system was able to accommodate persons with his disabilities. The court
noted that, as in Latimer, above, the defence submissions were directed to the effect of
the sentence on this particular offender in this particular case. Thus, the court restricted
its analysis to the particularized inquiry described in Latimer.
The court stated that second degree murder is an offence accompanied by an
extremely high degree of criminal culpability and that the accuseds actions resulted in
the most serious of all possible consequences to the victim. The aggravating factors
included the domestic nature of the accuseds relationship with the victim, his obsessive
behaviour and attitude toward the victim after they had broken up, and evidence that the
murder was planned. The mitigating factors included the absence of a history of
physical abuse of the victim by the accused prior to their break-up, his disturbed mental
state in the period leading up to and at the time of the murder, and the permanent
injuries that he suffered as a result of the attempt to take his own life.
The court recognized that the accuseds medical and rehabilitation issues would
require ongoing monitoring. He would be dependent on others for assistance with the
activities of everyday living, including personal hygiene. His cognitive impairments
rendered him vulnerable to being taken advantage of by others. Since the impairments
would pose challenges for his management in the correctional system, it was
reasonable to infer that he would face some additional hardship above and beyond that
inherent in any lengthy incarceration. Nonetheless, the court found that these factors
did not render the minimum punishment so excessive as to outrage standards of
decency. The court agreed with the Crown that there was no evidence before the court
that the mandatory minimum sentence posed a risk to the accuseds life or health.
Furthermore, the court decided that the minimum sentence was consistent with a
number of valid penological goals and sentencing principles such as denunciation and
general deterrence. The court concluded that the mandatory minimum sentence was
not grossly disproportionate. No aspect of the particular circumstances of the case or
the accused diminished the degree of criminal responsibility borne by him so as to
justify a constitutional exemption.
58
(G) Provincial Offences

Smith, [1996] N.B.J. No. 549, 184 N.B.R.(2d) 314, 469 A.P.R. 314 (T.D.)
The accused was convicted of unlawful possession of a deer carcass in
contravention of the Fish and Wildlife Act (N.B.). He was subject to a mandatory
minimum seven day jail sentence for a first offence under the statute. The trial judge
held that the mandatory sentence was cruel and unusual punishment and refused to
apply it. Instead, the judge imposed a $1,200 fine on the accused (or 60 days in default
of payment). The appellate court remitted the matter for sentencing on the basis that
the mandatory sentence did not violate s.12 of the Charter. The court noted that the
constitutionality of mandatory jail sentences for offences under the Fish and Wildlife Act
had been upheld in Campbell (1990), 96 N.B.R.(2d) 234, 243 A.P.R. 234 (Q.B.), where
the judge concluded that the provision of mandatory jail sentences for certain offences
was necessary to attain the legitimate purposes of the legislation. There were no
developments in the interpretation of the Charter since that decision to change the law.
Moreover, in Desjardins (1996), 182 N.B.R.(2d) 321, 463 A.P.R. 321(C.A.), the Court of
Appeal reviewed the constitutionality of compulsory minimum sentences and held valid
the minimum amount of fines prescribed under the Excise Act.
(H) Minimum Fines
The following is only a selection of cases involving attacks on mandatory
minimum fines under s.12 of the Charter. The selection represents the general lack of
success of such attacks.
MacAulay, [1991] N.J. No. 264, 96 Nfld. & P.E.I.R. 66, 305 A.P.R. 66 (S.C.T.D.)
The accused pleaded guilty to seven infractions of the Income Tax Act. In spite
of proper demands, the accused failed to file personal and corporate income tax returns
for the three specified years. The trial judge declined to impose the mandatory fine of
$1,000 for each offence, as required by under s.238(1) of the Income Tax Act, on the
ground that it offended s.12 of the Charter. Instead, he imposed a fine of $200. On
appeal, the appellate court held that the fine was not grossly disproportionate and did
not breach the Charter. The court substituted a fine of $1,000 on each count. The court
found that the accuseds refusal failure to file the returns was willful and based in
unacceptable reasons. The accused was in the business of preparing income tax
returns for 18 years. Thus, he should have known that none of his excuses were
legitimate, especially given the clear warnings contained in the oral, personal, and
written demands made to him by Revenue Canada.
Euerby, [1992] B.C.J. No. 396, 2 C.T.C. 149 (S.C.)
The accused was convicted of failing to comply with a notice to file a return and
fined the minimum $1,000 under s.238(1) of the Income Tax Act. The accused argued
that the trial judge erred in finding that the mandatory minimum fine did not contravene
59
s.12 of the Charter because it did not constitute cruel and unusual punishment. On
appeal, the court held that for the reasons given by the trial judge, s.12 was not
infringed. Moreover, the court noted that it was significant that the charge was one of
failing to comply with the notice to file a return and not one of failing to file a return. The
accused had been given sufficient time to comply with the demand. A person who
received the notice was made aware of the consequences of a failure to comply and
was given an opportunity to respond. Thus, the accused had the opportunity to avoid
the consequences. Finally, the provision in question did not create an absolute liability
offence, but instead created a strict liability offence which allowed for a defence of due
diligence.
Desjardins, [1996] N.B.J. No. 467, 182 N.B.R.(2d) 321 (C.A.)
The Court of Appeal held that s.240(1)(a) of the Excise Act did not offend s.12 of
the Charter. The accused was convicted of illegal possession of tobacco and was
subject to a mandatory minimum fine. But the trial judge found that the minimum
sentence provided under s.240(1)(a) was of no force or effect in this case because it
was contrary to s.12. The trial judge imposed a fine of $10,000 with 15 months
imprisonment in default of payment of the fine. The Court of Appeal increased the fine
to about $112,000. The Court of Appeal stated that judges should adopt an attitude of
deference to the legislature and not put into question a decision to take measures
considered fit for the protection of society. The Court of Appeal rejected the trial
Judges contention that the Excise Act did not create serious offences. While the trial
judge had considered the accuseds characteristics, the Judge had not taken proper
account of those characteristics in context, which involved a charge of importing a very
large quantity of tobacco in a planned operation involving other people. The Court of
Appeal stated that one could not find that the punishment prescribed by the law was
cruel and unusual merely because the accused was on welfare and the Crown had not
proved the accuseds ability to pay a fine. In trafficking cases, courts inferred an ability
to pay, taking into account the illegal profits which resulted from such conduct, and
imposed prison terms in default. The fine prescribed by the law was proportionate to
the quantity of the contraband tobacco imported. The trial judge erred in finding that
penalty to be arbitrary. The Court of Appeal noted that given the trial Judges findings
he should have declared that all or part of s. 240(1)(a) was unconstitutional and
inoperative in general, rather than declaring that it was only inoperative in relation to the
accused alone. In other words, a constitutional exemption was not available.
Zachary, [1996] J.Q. No. 2970, 3 C.R.(5th) 96 (C.A.)
The two accused were convicted of tobacco offences under s.240(1) of the
Excise Act and were sentenced to pay a fine of $165,009.18 within one year with 30
months imprisonment in default of payment of the fine. Both the Crown and defence
parties agreed that the 30-month sentence on default of payment of the fine was illegal,
because the Excise Act provided for a maximum prison sentence of two years. It was
also agreed that the trial judge had intended to impose the mandatory minimum fine of
twice the value of the duties evaded, being $161,700. The issue was whether
mandatory minimum fine of twice the value of the duties constituted a violation of ss.7,
11(d) and 12 the Charter. The Court of Appeal quickly dismissed the arguments under
60
ss.7 and 11(d) which were based on the contention that s.240(1) deprived the accused
of their right to be tried by an independent tribunal, unshackled by the constraints of a
mandatory minimum penalty. The Court of Appeal stated that minimum and maximum
penalties do not infringe ss.7 and 11 of the Charter solely because they limit judicial
discretion. Moreover, the penalties were a matter of legislative policy and not judicial
discretion.
On the s.12 argument, the Court of Appeal held that the accused failed to show
either that the effect of the punishment, given their particular circumstances, was so
severe as to outrage standards of decency, or that it was grossly disproportionate, as
evidenced in reasonable hypothetical circumstances. They were charged with a serious
crime involving many thousands of dollars and had engaged in an activity which cost
the public millions. There was no evidence as to their personal circumstances which
would lead to the conclusion that the sentence had an overly severe impact on them.
The minimum fine required by the s.240(1) was entirely commensurate with the
objective gravity of the offence and indeed, from a quantitative point of view, a mere
function of its social impact. Also, there was nothing startling about the fact that the
mandatory minimum penalty provided by s.240(1) was imposed on each accused.
When two or more offenders together commit a crime, each is subject to the full
sentence provided by law for its commission, rather than to the prescribed punishment
divided by the number of co-offenders. It was thus not unusual at all, particularly in
respect of revenue offences, to find several accomplices each subjected to the same
minimum punishment. The Court of Appeal reduced the fine to $161,700 because of a
miscalculation on the part of the trial Judge and reduced the period of imprisonment on
default to two years.
Sass, [1996] A.J. No. 810, 188 A.R. 234 (Prov.Ct.)
The accused was convicted of driving a non-insured motor vehicle contrary to the
Motor Vehicle Administration Act (Alta.). As a first time offender, he was subject to a
fine of not less than $2500 and not more than $10,000, in default of which he was liable
to imprisonment of 30 days to 60 months. The court found that the penalty was
regulatory in nature and did not constitute cruel and unusual punishment. Those who
engaged in a regulated activity were deemed to have accepted certain terms and
conditions. This minimum penalty was also found not to violate the Charter in
Raymond, [1997] A.J. No. 481 (Prov.Ct.).
Karami, [1997] O.J. No. 5962 (Prov.Div.)
The accused first offender was convicted of possession of unstamped cigarettes
contrary to the Excise Act and unmarked cigarettes for the purpose of sale contrary to
the provincial Tobacco Tax Act. He was the driver of a rental cube van that contained a
large number of cases of contraband cigarettes. He was not a principal in the
smuggling enterprise. The minimum fine was $137,660 for the first offence and
$258,114 for the second offence. The court noted that to impose the minimum
penalties would be oppressive and unjustly disproportionate to the accuseds
involvement in the serious offences. The court decided as follows (at para. 28-30):
61
Under s.60(2) [as it then was] of the The Provincial Offences Act a court is
entitled to relieve from the impact of a minimum sentence when to impose
it in the exceptional circumstances of the case would be unduly
oppressive, or otherwise not in the best interests of justice. In my view,
the ability of this court to have recourse to s.60 of The Provincial Offences
Act defeats the s.12 Charter challenge to the Ontario statute. There is no
matching relieving provision under the Excise Act.
Finding as I do that the Accused, a first offender, has persuaded me that
he was not a principal but rather a subordinate I am satisfied that to
impose the minimum penalties would be oppressive and unjustly
disproportionate to his involvement in this serious offence. this [is] a
legitimate ground for relieving against the oppressive impact of a minimum
sentence in certain cases. However, the fines imposed should represent
a serious deterrent to not only the Accused but to any person who might
consider acting as a courier or driver for smuggled illicit goods. At the
same time, the fines should not be so large as to deprive the Accused of
any hope of taking his place in an honest way in the main stream
economy. A crushing fine will only drive the Accused deeper into the
black market and that is not rehabilitative or in the public interest. In the
result I grant relief under s.60(2) of The Provincial Offences Act for the
fines imposed under the Ontario statute and impose a fine of $20,000
rather than the statutory minimum fine. Under the Excise Act, I find the
minimum fine required is disproportionate to the offenders involvement in
this serious offence and constitute fine under the Excise Act shall also be
$20,000.00 for a total of $40,000.00. This is a serious penalty but a
penalty that an honest man can discharge with application. There will be
one year granted to pay these fines.
In reaching this conclusion, the Court was favourably impressed by the
Accuseds willingness to admit that the officer told him he did not have to
agree to the search and by stating that the officer spoke to him politely
and not in a threatening manner. A sophisticated and experienced courier
would likely have conducted himself differently at the roadside and in
court. I note the Accused initially testified that he thought the officer had
drawn a pistol but this effort to characterize police behaviour as
threatening was abandoned as he testified.
MacFarlane, [1997] P.E.I.J. No. 208, 121 C.C.C.(3d) 211, 157 Nfld. & P.E.I.R. 208
(C.A.)
The minimum fine under s.240(1) of the Excise Act for selling contraband
tobacco was determined by the quantity of tobacco involved and a formula set out in the
legislation. The accused were liable to a minimum fine of roughly $16,000 as a result of
having conspired to obtain and sell $90,000 of cigarettes and 18,000 grams of other
manufactured tobacco. The trial judge imposed a fine less than the prescribed
minimum on the basis that the imposition of the minimum fine would violate the principle
of proportionality under s.718.1 of the Criminal Code and would constitute cruel and
62
unusual punishment under s.12 of the Charter. The Court of Appeal held that the
sentence was illegal, allowed the appeal by the Crown and imposed the appropriate
sentence. While noting that the mandatory minimum fine amounted to a considerable
sum and would impose a great hardship on the respondents, the Court of Appeal found
that the amount of the fine was directly proportional to the amount of contraband
involved, did not constitute cruel or unusual treatment or punishment, and was not
contrary to the Criminal Code sentencing provisions. There was a logical and coherent
connection between the quantity of contraband and the fine imposed.
Piscione, [1997] O.J. No. 4416, 12 C.R.(5th) 131 (Prov.Ct.), appeal dismissed [1998]
O.J. No. 6455 (Gen.Div.)
The accused, who pleaded guilty to eight counts of failing to file tax returns
following a demand contrary to the Income Tax Act, was subject to a minimum fine
totaling $8,000, or in default, imprisonment for 60 days. However, the trial judge
suspended the sentence and ordered the accused to serve 18 months probation. The
judge found that s.12 of the Charter would violated if the minimum fine was imposed on
an accused who had no income and was significantly in debt. The trial judge decided
that that the minimum fine was not founded on recognized sentencing principles,
including totality and ability to pay. The accused failed to respond to demands to file the
returns because of stress due to the break-up of his marriage, the failure of his
business, and because of a dispute with his accountants. He filed the returns before
pleading guilty and no tax had been payable during any of the years in question. A fine
option program was not available in the province. The appellate court dismissed the
Crowns appeal. Although the appellate court had doubts as to the correctness of the
trial judges conclusions that s.12 was engaged in this case, it was not prepared to
interfere with his disposition, particularly as the accused had almost completed his
sentence. The appellate court noted that the trial judge did no more than to decide that
in the particular circumstances of the accused the imposition of mandatory fines
constituted an infringement of s.12, requiring a remedy under s.24(1). If he had struck
striking down the minimum fine requirement, he would have been in error. The
appellate court suggested that the minimum fine requirement itself was constitutional.
Samaha, [1998] N.S.J. No. 358 (Prov.Ct.)
The accused had pleaded guilty to illegally distributing tobacco contrary to the
provincial Revenue Act. The minimum fine under that statute was $10,000. A provision
in the statute made the Remission of Penalties Act unavailable to the court for
consideration. The accused was the sole financial provider for both his wife and two
young children, age five years and two years. Based on his income and expenses, he
was not likely to pay the fine. If he were to discharge the through the fine option
program, the court calculated that he would be required to provide approximately 1818
hours of community service work. Assuming that he was able to provide eight hours of
community service work on each of the two days when he was not required to be at his
place of employment, it would take him over two years to discharge the fine working at a
pace of sixteen community service hours per week. The court held that the minimum
fine would constitute a cruel and unusual punishment contrary to s.12 of the Charter
both in relation to the offender and the offence before it and also in relation to
63
reasonable hypotheticals. The court determined that the appropriate remedy was to
sever the provision in the Revenue Act which removed the application of the Remission
of Penalties Act. The severance would allow the court to remit the prescribed minimum
fine. While it did not decide the issue in this judgment, the court suggested that a fine in
the range of $1,000-$1,500 dollars would be appropriate to achieve deterrence.
Bisson, [2000] J.Q. No. 3273 (C.A.)
The accused, who was living on social assistance, was convicted of two counts
of possession of contraband tobacco. The trial judge found that the minimum
punishment under the Excise Tax Act violated s.12 of the Charter. The minimum fine in
this case was $52,800. The trial judge granted the accused a constitutional exemption
and imposed a lesser fine of $3,600 with a term of six months imprisonment in default
of payment of the fine. The accused had 36 months to pay the fine. The first appellate
court dismissed the Crowns appeal from the trial judges decision. However, in a very
short judgment, the Court of Appeal ordered the accused to pay a fine of $52,800
without delay. In default of payment of the fine, the accused was to serve a 12-month
conditional sentence. The Court of Appeal noted in its judgment that it had quashed the
trial decision on November 25, 1999, because a constitutional exemption was not
available in this case.
Lazare, [2000] Q.J. No. 4701 (Que.Ct.)
The Aboriginal accused were found guilty of conspiring to possess and to sell
manufactured tobacco not put up in packages and stamped in accordance with the
Excise Act and of conspiring to possess and to sell imported spirits not in accordance
with the Customs Act. The accused were unable able to pay the mandatory minimum
fine of 24 million dollars. The court denied the request for a constitutional exemption
under s.12 of the Charter. The court ordered that the accused pay the minimum fine
without delay. In default, the accused were to serve a conditional sentence of
imprisonment. The court stated (at paras. 37-51):
Defence counsel stated that he does not challenge the constitutional
validity of the sentencing sections involved here but only their operation
with respect to each accused.
The defence submits the same argumentation as the one advanced in the
case of Bisson. However, this argumentation was not followed by the court
of appeal.
The court of appeal reversed a Superior court decision that upheld a
constitutional exemption that had been granted by a Quebec court judge
to an accused found guilty on 2 counts of broach of 240(1b), possession
of unstamped cigarettes where totalling $53,400 were mandated by s.
240.
This issue of constitutional exemption in relation to the penalty provides

for in section 240 of the Excise Act was addressed in R. vs Desjardins
64
(N.B.C.A.) (1996) 182 N.B.R. 2d 321, where Mr. Justice Bastarache (as
he then was) restated the words expressed in Smith. It was clearly
explained that courts cannot be deemed to have the power to determine
the applicability of a sentence on the basis of the characteristic of each
given case.
In a similar case, a same view was expressed in Zachary vs PG Canada
(Qu.C.A.) (1996) R.J.Q. 2484.
There is a clear indication from our appeal court that a constitutional
exemption may only be granted in the clearest cases where overwhelming
evidence shows that a sentence provision or the punishment prescribed in
an otherwise valid provision is so manifestly disproportionate to the gravity
of the offence and the degree or responsibility of the offender that it
outrages standards of decency.
The defence has not succeeded in demonstrating that a constitutional

exemption should be granted in the case at bar. The court is bound by the
decisions rendered at the appeal level R. vs Bisson (supra). The accused
are not a group and the defence has not contested the constitutionality of
the validity of the provision.
Notwithstanding the magnitude of the fine, the sanctions prescribed by the
sentencing provisions of the Act for tobacco smuggling may be fashioned
in such a way that they will not become grossly disproportionate to the
gravity of the offence and the degree of responsibility of the offender.
McLean, [2002] O.J. No. 1833 (C.J.)
The accused failed in their challenge to the constitutionality of the minimum
penalties provided by the Income Tax Act and the Excise Tax Act for failing to file tax
returns. The court found that the accuseds non-compliance was wilful, long-standing
and continuous. The defendants led evidence that they had limited financial means with
which to pay the minimum fines, and the imposition of such fines would create an
economic hardship. But the court decided that it is not economic hardship alone that
determines whether a sentence is grossly disproportionate. In a self-reporting system
that relies on the honesty and integrity of taxpayers, according to the court, there will be
a temptation to take advantage of the system for financial gain. The provisions of the
two statutes are designed to provide for a significant penalty in order to deter not only
the offender, but others who would behave in a like fashion. Although alternatives to
minimum fines may exist, general deterrence is a valid sentencing objective and one
that is founded upon recognized sentencing principles. The application of minimum
fines to the accused in the circumstances here did not amount to grossly
disproportionate penalties. As there was no violation of s.12 Charter rights, there was
no basis to impose a constitutional exemption in the circumstances.
Pham, [2002] O.J. No. 2545, 167 C.C.C.(3d) 570, 6 C.R.(6th) 373, 161 O.A.C. 80 94
C.R.R.(2d) 371 (C.A.)
65
The two accused were found guilty of possessing 1,200 kilograms of contraband
tobacco and were each sentenced to the minimum fine of $154,000 under s.240 of the
Excise Tax Act. They were given two years to pay the fine and two years in jail in
default of payment. The court rejected their argument that the minimum fine constituted
cruel and unusual punishment. The court noted that s.240 aims to prevent the serious
offence of tobacco smuggling which damages the commercial interests of those who
legitimately sell it and which causes a loss of significant tax revenue to the government.
The court stated that the ability of the accused to pay the minimum fine was
entitled to very little or no weight in the s.12 Charter analysis in light of the obvious
illegal profits to be derived from such a smuggling operation. Any impact on the s.12
analysis was attenuated by their right under s.734.3 of the Criminal Code to apply for an
extension of time beyond the two-year period imposed by the trial judge. Moreover,
while the term of imprisonment which the trial judge elected to impose in default of
payment was not a part of a minimum fine provision, s.734.7 of the Criminal Code
attenuated its impact as well by permitting a warrant for committal to be issued only
where the offender has refused to pay the fine without reasonable excuse.
The accused had shown nothing about their personal characteristics or the
particular circumstances of their crime to render the minimum fine grossly
disproportionate to what would have been appropriate.
The most important
consideration in the s.12 analysis was the direct connection between the quantity of the
illegal substance possessed and the size of the fine. Those who possess larger
quantities are clearly players in larger criminal enterprises with larger illegal profits for
whom larger minimum fines are rationally founded. The use of this factor, which is both
objective and reasonable, to regulate the size of the minimum fine ensures that the
punishment will not be grossly disproportionate. Parliaments decision to try to deter
smuggling of contraband tobacco by establishing proportionality between their illegal
profits and the amount of the fine imposed is a legislative scheme that is not apt to
outrage the public conscience.
The court reiterated that it will only be on rare occasions that a sentence will be
so grossly disproportionate as to offend s.12 of the Charter. (The fine was reduced to
$132,000 as there was a mathematical error in the calculation of the amount.)
(I) Child Pornography
Constitutional challenges to the minimum sentences for child pornography
offences appear to limited to Schultz, 2008 ABQB 679, where the minimum term of one
year for transmitting child pornography contrary to s.163.1(3)(a) was determined not to
violate the s.12 Charter protection against cruel and unusual punishment. The 21-yearold first offender posted two nude photographs of the 16-year-old complainant (his
former girlfriend) on his webpage, where he also offered nude photographs to anyone
who asked and identified her name/age; sent one photograph to an anonymous friend
who asked for it via chat logs; and created a link to a website that contained eight
photographs of the complainant, including ones that revealed her breasts and vagina.
Applying the Supreme Court of Canada s.12 jurisprudence, the court concluded that the
appropriate sentence in light of the gravity of the offence and relevant contextual factors
was 12 months imprisonment/two years probation and, therefore, the minimum term
66
was not grossly disproportionate in the relation to the offender before the court. With
respect to the reasonable hypothetical of an young adult offender having taken a
photograph on consent of his or her 15/16-year-old partner and after the relationship
ends, out of vindictiveness, giving or showing it to others on a single occasion, a one
year term might be somewhat excessive, but would not reach the threshold of being
so excessive as to outrage standards of decency. Moreover, on the reasonable
hypothetical of a teenaged girl who had taken nude pictures of herself and, after she
turned eighteen, distributed them to friends over the Internet, Topolniski J. concluded
that the minimum term would not be grossly disproportionate, having regard to the harm
associated with the conduct (at paras. 129-132):
In terms of the hypothetical dealing with a teenaged girl who uses the
Internet to transmit nude photographs of herself to friends, she would be
dealt with under the Youth Criminal Justice Act and, in all likelihood, would
receive a youth sentence. Even if the girl involved did not transmit the
photographs until after she turned 18, I would again find that the minimum
sentences in s. 163.1(3) do not constitute cruel and unusual punishment.
Again, reference to Sharpe [2001 SCC 2] is instructive. The distribution of
child pornography causes harm beyond that caused by the exploitation
and abuse of children portrayed in existing pornographic material,
including:
(i) The promotion of "cognitive distortions" causing the
possessor to view child abuse as normal (at para. 87);
(ii) The fueling of fantasies and consequence of making
paedophiles more likely to offend (at para.89); and
(iii) The facilitation of new production of child pornography by
using existing materials to groom or seduce victims (at para.
91).
Incidental to preventing harm to children, the law recognizes the need to
prevent "attitudinal harm to society at large"(Sharpe at para. 82).
These concerns apply equally to the hypothetical distributor. She
contributes to harmful attitudinal shifts, fuels fantasies, and provides
material that may be used to exploit and traumatize future victims. By
distributing her self-created materials, she causes the same societal
harms as if she had distributed pornographic materials involving other
children. The need for general deterrence is as great in this scenario as in
the facts of the present case. The minimum sentence represents society's
denunciation, having regard to the gravity of the offence. It also serves as
a general deterrent to prevent others from acting in a similar manner in the
future.
(J) Sexual Offences
In Lonegren, 2009 BCSC 1678, the accused was convicted of sexual
interference involving a nine-year-old girl. He was a 51-year-old man with no criminal
67
record who was otherwise of good character. Pursuant to s.151, the mandatory
minimum (at the time) was 45 days imprisonment. The accused brought an application
arguing that the minimum sentence violated s.12 as well as ss.7 and 9 of the Charter.
The s.12 argument was not based on any reasonable hypotheticals, but on the
particular circumstances of the offender. The defence argued that the offence fell on the
less serious end of the spectrum and had the Crown elected to proceed summarily the
accused would have faced a minimum penalty of 14 days imprisonment. The election to
proceed summarily meant that he faced a minimum penalty that was grossly
disproportionate in the circumstances.
The court rejected this argument. Given the gravity of the offence and the
penological goal of general deterrence of offences against children, the minimum
sentence was not grossly disproportionate. The court also noted that the sentence could
be served on three-day weekends and could be remitted to 30 days on good behaviour.
The court did, however, find the provision to be arbitrary contrary to s.9 of the Charter.
The court took issue with the fact that s.151 created a scheme were the applicable
sentence could vary for reasons unrelated to the principles of sentencing, since the
Crown may elect to proceed by indictment for reasons unrelated to sentencing.
In Khan, 2013 ONCJ 267, the 22-year-old accused was convicted on the charge
of invitation to sexual touching. He met two young girls at the skating rink where he
worked. They ended up exchanging contact information and he would communicate
with them via text messaging and MSN Messenger. Their discussions turned sexual
and he told one of the girls that he wants to fuck. Although he argued that the
messages were a joke, the court found them to be an invitation to sexual touching. The
defence brought an application arguing that s.152 of the Criminal Code, which at the
time prescribed a 14 day mandatory minimum sentence, was cruel and unusual
punishment and violated this particular defendants s.7 and s.12 Charter rights. No
reasonable hypotheticals were advanced. The accused had no criminal record, was
attending college, and was otherwise of good character. The court, however, noted the
prevalence of sexual offences and against children and held that they must be deterred
in the strongest terms. The 14-day sentence was not grossly disproportionate.
In Stapley, 2014 ONCJ 184, the accused entered a guilty plea to luring a child by
means of a computer. The accused sent facebook messages to the underage
complainant offering inducements for sexual acts. Pursuant to s.172.1(2)(b), he faced a
minimum sentence of 90 days. The defence brought an application arguing that this
sentence constituted cruel and unusual punishment. The court held that for this
particular offender, a 90 day sentence would serve no rehabilitative purpose and it
would be difficult for Sebastian Stapley, a man who suffers from intellectual deficits, to
serve time in custody as he will be an easy target for the unsavoury members of the
inmate population (at para. 49). The court would have otherwise imposed a sentence of
14-21 days. Despite this, a 90 day sentence was not so excessive as to outrage
standards of decency and was therefore not grossly disproportionate.
Although neither the Crown nor the defence raised any reasonable hypotheticals,
the court considered a hypothetical of its own creation. The hypothetical consisted of a
19-year-old year old male, by way of smartphone, communicating with a sixteen-and-a-
68
half year-old girl from his school, asking her to send him a picture of her breasts.
Instead of complying, she notifies her mother of the message, who then notifies police.
The court struggled with whether a 90 day sentence would be grossly disproportionate
in such a scenario (at para. 67):
I am however struggling with whether the mandatory minimum sentence
is cruel and unusual punishment when applied to the reasonable
hypothetical. I am extremely troubled by what might be seen as a fine line
between being an advocate, by creating a reasonable hypothetical and by
being a Judge answering the question on a reasonable hypothetical that
had been presented to me by counsel. It is very disconcerting as a society
that we are imprisoning young people because of how they
telecommunicate or how they use their telecommunication devices and it
may well be that Parliament acted prematurely in creating the child luring
offence without a proper understanding of the role of telecommunication
device or the role that telecommunication devices play in the day to day
lives of many younger members of our society.
Griffin J. reluctantly held that a 90 day sentence would not be disproportionate in
the reasonable hypothetical and he invited the appellate courts to provide definitve
guidance (at paras. 72-74):
It is with significant hesitation and reluctance brought on by some slight
uncertainty as to the correctness of my reasonable hypothetical that I am
unable to conclude that the 90 day jail sentence would be, in the words of
Justice Gonthier found at paragraph 26 of the Supreme Court of Canada
decision of R. v. Morrisey, [2000] 2 S.C.R. 90 (S.C.C.), to be so grossly
disproportionate that "Canadians would find the punishment abhorrent or
intolerable."
It is however my belief that this halting decision could and should be
reviewed by a higher court and there could be a robust articulation of the
reasonable hypothetical that I have used by allowing the Crown and the
defence to develop arguments which in turn could lead to a different
conclusion in that it could be determined, much like what was done by
Justice Doherty in R. v. Nur, [2013] O.J. No. 5120 (Ont. C.A.), that the
minimum jail sentence is grossly disproportionate to the severity of the
offence described in the hypothetical.
To be even more blunt, based upon the record before me it would be an
error to find gross disproportionality based upon the reasonable
hypothetical created by myself without any argument from counsel but that
on a more complete record, it may well be determined that the 90 day
minimum jail sentence is grossly disproportionate to the severity of the
offence described in my proposed reasonable hypothetical.
In T.M.B., 2013 ONSC 4019, the Aboriginal accused was convicted of sexual
interference. While his five-year-old granddaughter was in his care, they removed their
clothing and lay down on the floor. The accused then touched his penis to her vagina for
approximately two minutes. The accused was 53 years old and had no criminal record.
69
He indicated, that he had been sexually abused as a child and suffered racism as a
result of his Aboriginal background. At the time of the proceedings, the offence carried a
maximum 18 months imprisonment and a minimum of 14 days imprisonment when the
Crown proceeded summarily.
The appellant and an intervener argued that, while the mandatory minimum was
non-discriminatory on its face, it nevertheless amounted to adverse effect
discrimination as the mandatory minimum meant that a conditional sentence was not
available (as per s.742.1 as it existed at that time) despite the fact that the appellant
was an Aboriginal offender. The argument rested on the fact that it has previously been
judicially noted that Aboriginal persons are over-represented in Canadas prisons, thus
the appellant argued that Canadas system of incarceration as a whole is discriminatory
against Aboriginals and mandatory minimums exacerbate this problem.
On appeal, the appellants argument failed all parts of the test under s.15(1) for
more or less the same reason: the court found that the sentence that had been
imposed, eight months imprisonment, was an appropriate sentence under the
circumstances. Binding precedent provided that conditional sentences were not
appropriate in cases where a child had been sexually assaulted by a family member in a
position of trust, especially where the child was of a very young age (in this case, a fiveyear-old child under the care of her grandfather). Thus, there was no actual adverse
impact on the appellant as a conditional sentence was not appropriate in his case
anyway. The mandatory minimum would only affect those rare exceptional cases
where significant and unusual mitigating circumstances meant that a conditional
sentence was in fact appropriate. The court reasoned that, in order to accept the
appellants argument, it would have to rule that all mandatory minimums in the Criminal
Code were unconstitutional, and further it would have to do so on the basis that it might
negatively impact a very small subset of the appellants group. In other words, the
correspondence between the discriminatory effect alleged and the group affected was
too tenuous to support a successful challenge under s.15(1), and further, that perfect
correspondence between the impugned law and the group affected (Aboriginal
offenders convicted of sexually assaulting children) was not required under the s.15
jurisprudence at present, as the law was fit for all but the rare exceptional case. The
s.7 argument was found to be without merit. Accordingly, the application was dismissed.

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NOTE: This document is intended to aid legal aid counsel

Charter of Rights Section 12

Nur, at para. 87.

preclude a future offender from arguing that the section is unconstitutional

Personal characteristic of the reasonable hypothetical offender cannot be

With respect to linked offences, where a mandatory minimum is predicated on

Second, what would have been the fit and appropriate

sentence for this offence and this offender, prior to May 1,

In Corbiere the Court affirmed the principle from Reference re

excessive, but standing on its own, not grossly disproportionate. If the

sentences could sometimes be grossly disproportionate (at paras. 18-22):

case, and, in my view, such an approach reflects the intention of

and thus the review of the proportionality of sentences should normally be

not. This was a robbery committed by a group of males who approached

play and decency is disproportionate to the societal interest in the

level of gross disproportionality.

provision provides for a mandatory minimum 90-day sentence on a third or subsequent

refusal does pose a grossly disproportionate punishment in reasonable hypothetical

forbear cannot, in my view, convert an otherwise constitutional law into

(G) Provincial Offences

This issue of constitutional exemption in relation to the penalty provides

The defence has not succeeded in demonstrating that a constitutional

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