Bill C-10 Some constitutional considerations

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Anthony Moustacalis
 Bill C-10 contains 5 parts that incorporate 9 earlier bills
from the previous Parliamentary session.
 These nine specific parts include:
 1. Victims of Terrorism Act and
 2. Amendments to the Criminal Code re Sexual Offences
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against Children
3. Amendments to CDSA
4. Amendments to Criminal Code re conditional sentences
5. Amendments to Corrections and Conditional release Act
6. Amendments to Criminal Records Act (pardons)
7. Amendments to the International Transfer of Offenders
Act
8. Amendments to the Youth Criminal Justice Act
9. Amendments to the Immigration and Refugee Protection
Act
 Has been to expand mandatory minimums
 Reduce conditional sentences
 Alter parole eligibility
 Remove Pardons and lengthen time for “Record
Suspension” eligibility
 Reduce accountability of Minister in Transfer of
Offender cases
 Many of these amendments raise constitutional issues
 Use of mandatory minimums is being litigated now with
six cases before the Court of Appeal
 Three things to note
 Pre-trial custody can reduce a mandatory minimum
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R. v. Wust, 2000 SCC 18, [2000]
 R. v. Nasogaluak, [2010] 1 S.C.R. 206. In exceptional
circumstances a charter remedy may be appropriate,
but rare
 [55] Thus, 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. Provided the interests at stake can
properly be considered by the court while acting within the sentencing
regime in the Criminal Code, there is simply no need to turn to
the Charter for a remedy. However, if a Charter breach has already
been alleged and established, a trial judge should not be prevented
from reducing the sentence accordingly, so long as the incidents giving
rise to the breach are relevant to the usual sentencing regime. Of
course, as we shall see, as a general rule, a court cannot reduce a
sentence below a mandatory minimum or order a reduced sentence
that is not provided for by statute. That said, circumstances of
a Charter breach or other instances of state misconduct, in exceptional
circumstances, do allow a court to derogate from the usual rules to
which its decisions are subject.
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 “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.”
 In the end, the court held that the trial judge could not
go below the mandatory minimum sentence of a fine
(and licence suspension) for the impaired. The
circumstances (beating, resulting in broken ribs and
punctured lung, not sending to hospital right away )
did not warrant a 24 (1) remedy.
 Proportionality of sentencing is a principle of
 “constitutional weight”
 This is important, potentially, on the fight against
conditional sentences, because it may be argued that if
proportionality is now a principle of fundamental
justice, the mandatory sentence does not need to be
cruel and unusual to be unconstitutional
 To find a mandatory minimum sentence
unconstitutional court must determine if the sentence
is “cruel or unusual” under section 12.
 R. v. Smith(1987)
Cruel and unusual is a compendious expression of
a norm
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Meets test if sentence is grossly disproportionate
such that the punishment prescribed is so excessive as
to outrage standards of decency
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Merely disproportionate or excessive sentences do
not meet the test, and are for appellate fitness review.
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 McIntyre J. held that even if punishment is proportionate
to the offence it will be cruel and unusual if it is imposed
arbitrarily, unevenly and without reason upon some people
and not others
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Also permitted an accused standing to challenge
constitutionality even if his facts do not support the claim
(Smith court upheld 8 years but declared sentence
unconstitutional)
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Smith also held that law can be cruel or unusual and
unconstitutional because of its purpose or its effect
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Eg treatment of prisoners, how solitary is imposed,
location of prisons
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Majority also found could be saved under section 1
analysis becomes analysis if state goal or objective is of
sufficient importance to warrant overriding a Charter
right and does it meet the minimum impairment part
of Oakes proportionality test.
 Rcmp officer shot and killed a detainee, and was
convicted of manslaughter
 236 a minimum 4 years. Judge gave constitutional
exemption and imposed conditional sentence.
 Scc clarified no constitutional exemptions and 4 years
ok.
 R. v. Goltz, (1991) minimum 7 days for driving while
prohibited by BC Motor Vehicle act upheld by SCC (63)
 R. v. Morrisey (2000) Four years for crim neg cause
death with firearm ok per SCC
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Court of Appeal has reserved on six cases:
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R v. Leroy Smickle
Smickle was posing for a photo with a loaded handgun in his cousin's house when police burst in with
a search warrant for the cousin, who they believed had illegal firearms. He was convicted of
possession of a prohibited firearm, but the judge ruled that it would be cruel and unusual to send the
first-time offender to prison for a "very foolish" act for three years.
R v. Hussein Nur
Nur pleaded guilty to possession of a loaded prohibited firearm. The judge ruled that if the
mandatory minimum did not exist, he would sentence Nur to 2 1/2 years, so the three-year mandatory
minimum was not grossly disproportionate. The judge did raise several scenarios in which the
mandatory minimum would be inappropriate. Nur challenged the law on the basis that the two-year
gap between the maximum summary conviction sentence and the minimum on an indictable offence
was arbitrary and contrary to the Charter. The judge agreed, but dismissed the challenge on a
technicality.
R v. Frank Meszaros
Meszaros used a loaded shotgun to threaten two people who were fishing in his private trout pond.
He was convicted of assault and using a firearm in the commission of an indictable offence. Meszaros
challenged the one-year mandatory minimum sentence as violating the Charter, but the judge
dismissed it.
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R v. Matthew Rocheleau
Rocheleau was convicted of robbery with a firearm, along with a slew of other offences.
He argued it's unconstitutional that mandatory minimum sentences for robbery with a
firearm and using a firearm while committing an indictable offence must be served
consecutively. The judge upheld the mandatory minimum.
R v. Ian Chambers
Chambers was convicted of possession of a restricted firearm. Since he had previous gun
possession convictions, the mandatory minimum sentence was five years. Chambers was
sentenced to six years, but his lawyer argued that the mandatory minimum serves as an
"inflationary floor" and Chambers deserves at most four-year sentence.
R v. Sidney Charles
Charles pleaded guilty to several firearm offences after a loaded gun was found in his
bedroom at a rooming house. He was subject to the five-year mandatory minimum
sentence for a second offence, but he challenged the law about what constitutes an earlier
offence. The judge found there was no Charter breach.
(Summary from CBC website: http://www.cbc.ca/news/politics/story/2013/02/19/polcp-mandatory-minimums-ontario-court.html)
 May be struck down as being cruel or unusual
 Next battleground may be section 15 and section 7 and
12 –do these provisions disproportionately affect
Aboriginals, the Mentally Ill or other groups?
 See submission by David Asper Centre on Bill C-10
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