R. v. C.B.A., 2020 BCPC 272

Citation: R. v. C.B.A. 2020 BCPC 272 Date: 20201113 File No: 104934 Registry: Lillooet IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.B.A. BAN ON PUBLICATION -

SECTION 486.4(2.2) C.C.C. REASONS FOR JUDGMENT RE:

SECTION 7 CHARTER ARGUMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: R. Carot Counsel for the Accused: C. Johnson Place of Hearing: Kamloops, B.C. Date of Hearing: September 1, 2020 Date of Judgment: November 13, 2020

[1] C.B.A. has been convicted of sexual interference under

section 151(

b) of the Criminal Code. I have dismissed in separatereasons for judgment his application under

section 12 of the Canadian Charter of Rights and Freedoms (the Charter). The sentence Iwould impose is a 150 day sentence because a conditional sentence order is not available. However, the fittest sentence I would imposeabsent that prohibition is a conditional sentence order of eight months, followed by a probation order. [2] Defence had asked that if I dismissed the

section 12 application, C.B.A. be permitted to make an application under

section 7 andthis is that application. I should note that crown did not strenuously object to proceeding in this fashion but I would not bifurcate such anapplication in the future. The issues and arguments are too bound up to justify arguing them separately, even without regard to theunnecessary delays and the duplication of court time. [3] Both counsel agree that the application arises because the mandatory minimum sentence under

section 151(

a) has been declaredof no force and effect. It is the mandatory minimum under

section 151(

b) that is in issue before me. [4] The relevant legislation for this decision are sections 7 of the Charter, and sections 151(a), 151(

b) and 742.1(

b) and (

c) of theCriminal Code: 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance withthe principles of fundamental justice. 12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the bodyof a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment ofimprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less aday and to a minimum punishment of imprisonment for a term of 90 days. 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, forthe purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community,subject to the conditions imposed under

section 742.3, if (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; [5] Mr. Johnson argued – rightly - that the test under

section 7 of the Charter whether the mandatory minimum sentence undersection 151(

b) is irrational, arbitrary and grossly disproportionate is different from the test for cruel and unusual punishment undersection 12 of the Charter. He also argued that the effect of the mandatory minimum sentence on a

summary conviction, where there isno such mandatory minimum on its corresponding indictable offence, offends an unarticulated principle of fundamental justice thathybrid offences prosecuted summarily cannot have a harsher sentencing regime than those prosecuted by indictment. By reason of crownelection, C.B.A. faces a harsher sentence on this

summary conviction than he would have had the crown proceeded by indictment. [6] The Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004SCC 4 , 2004 S.C.C. 4 articulates the framework for a

section 7 analysis as follows: 1. There must be a deprivation of life, liberty or security of the person; and 2. The deprivation does not accord with the principles of fundamental justice. [7] There is a deprivation of liberty at issue in this case. The dispute is with respect to whether that deprivation does not accord withthe principles of fundamental justice. [8] Mr. Carot argued that the disparity between sentencing options under

section 151(

a) and (

b) does not offend

section 7 of theCharter. The arguments advanced by the defence under the three headings of irrationality, arbitrariness, and gross disproportionality donot meet the stringent and specific tests under any of those headings. Mr. Carot also argued that the application is moot because,regardless of the crown election, a conditional sentence order is not available by virtue of

section 742.1(c). [9] I will first address the mootness argument. In several paragraphs of his written argument, Mr. Johnson submitted that it wasbecause the crown elected to proceed summarily that a conditional sentence order is not available to C.B.A. However, the maximumsentence for a conviction under

section 151(

a) was increased to 14 years in July 2015. By operation of

section 742.1(c), a conditionalsentence order is barred even if crown had elected to proceed by indictment. [10] Mr. Carot directed me to R. v. Mollon, 2019 BCSC 423 , 2019 B.C.S.C. 423 which found

section 742.1(

c) did notinfringe

section 12 of the Charter. In British Columbia, then, Mr. Johnson’s argument cannot succeed on the basis of crown election. [11] However, in the recent decision of the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478 , 2020 O.N.C.A. 478,the majority in a split decision found that

section 742.1(

c) infringed sections 7 and 15 of the Charter. Consequently, the issue is not yetfirmly decided across Canada though I am bound by Mollon to the extent that it applies to my considerations. A conditional sentenceorder is not available in British Columbia to anyone against whom the crown has proceeded by indictment because of the fourteen yearmaximum sentence.

[12] Crown election, therefore, has no impact on whether a conditional sentence order is available or violates

section 7 of the Charterin the case before me. Mr. Johnson now concedes this. Therefore, insofar as his argument addresses crown election and conditionalsentence orders, I decline to delve further into it. [13] That does not end the matter. Mr. Johnson argues that while a conditional sentence order may be statute barred at either level,crown election could result in a suspended sentence for an indictable offence and not for a

summary conviction offence. [14] I would not suspend the passing of a sentence in this case regardless of election. Indeed, I specifically rejected this option atparagraph 53 of my Reasons on Sentence: 53 A suspended sentence with a probation order would not meet the denunciatory and deterrent component of the sentence I mustimpose, particularly in light of this offender, this complainant and these circumstances. That component is paramount in these offencesand therefore must be present in the sentence.

Certainly restrictive terms can be punitive but suspending passing of a sentence does notamount to the same measure in such cases as this. [15] That, though, is only part of the issue. Bearing in mind the exhortation that provincial court judges decline to address the validityof legislation where it will have no impact in a specific case, I must determine whether the possibility of such a sentence at the indictablelevel still requires consideration of the

section 7 argument. I find that the question is not entirely moot because of the prospect of adisparity between an indictable matter and a

summary conviction matter. Arguably, if

section 742.1(

b) or section 151(1)(

b) offendsection 7 of the Charter, then the conditional sentence order is an option available to this sentencing [16] As Mr. Carot argued, crown election is not premised entirely on the severity of the crime. It is based on a number of factors thatmay exist in some cases and not in others. For instance, an offence on the lower end of the spectrum may indeed be less serious, but theCrown may have to proceed by indictment to retain jurisdiction. In such a case, a sentence for the indictable offence may indeed bejustified at the lower end of the range.

Even with the mandatory minimum in effect for indictable offences, such a defendant couldreceive a lighter sentence than a defendant sentenced for a

summary conviction of the same offence at the maximum level. That wouldnot be irrational, arbitrary or grossly disproportionate. [17] It is true that when the crown elects to proceed summarily, it has determined that the offence is on a different spectrum of seriousthan one that proceeds by indictment absent the issues of limitations.

However, it does not mean to say that the offence is not serious.Consequently, there is overlap found in many hybrid offences between the upper end of the sentencing regime and the lower end of anymandatory minimum that may be in effect. [18] The Supreme Court of Canada has made it clear that the punishment for sexual offences against children must increase, making itunlikely or at least rare that a suspended sentence would be available for a person convicted of the indictable offence. [19] While it may be true that the floor has dropped away from

section 151(a), that is not adequate to render

section 151(

b) irrational,arbitrary or grossly disproportionate by virtue of that

section and

section 742.1(b). [20] Mr. Johnson argued the

section 7 analysis is focused on whether the deprivation of liberty is in accordance with the principles offundamental justice. This distinguishes

section 7 analysis from the

section 12 analysis. [21] Apart from the argument that the impugned sections are irrational, arbitrary and grossly disproportionate, he also argued thatthere is a previously unarticulated principle of fundamental justice. In order for there to be a principle of fundamental justice, the test inR. v. Malmo-Levine, 2003 SCC 54 , 2003 S.C.C. 54 must be met: 1. It must be a legal principle; 2. About which there is a significant societal consensus that is fundamental to the way in which the legal system ought fairly to operate;and 3.

It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty orsecurity of the person (para. 113). [22] In this case, Mr. Johnson argues that the unarticulated principle of fundamental justice is that a

summary conviction offence mustnot have a harsher sentencing regime than its indictable offence. [23] Mr. Carot argued that the principle of fundamental justice must comply with the three part test in order to be recognized withinthe meaning of

section 7. [24] For simplicity sake I will refer to the proposed principle of fundamental justice as the proposed principle. To be successful in thefirst component of the test, the question is whether the proposed principle is used as a rule or test in common law, statutory law orinternational law. [25] The disparity between hybrid offences where there still exists a mandatory minimum sentence on

summary conviction but themandatory minimum on the indictable offence has been struck has consistently been left to parliament to address. That in itself disposesof the issue of whether there is a consensus. There is certainly not the degree of significant consensus required to meet the test. [26] The flexibility in sentencing ranges is tied to many factors apart from whether it is a hybrid offence and whether it proceeds byindictment or summarily.

The proposed principle is therefore entirely within the realm of general public policy and not at all a rule or testin common law, statutory law or international law. [27] There is consensus, though, among the courts that this discrepancy with respect to hybrid offences where the mandatoryminimum has been struck for indictable but not

summary conviction offences is a matter for parliament to resolve, but that is the only

consensus that can be said to be operating in this analysis. There is certainly no consensus that the proposed principle is fundamental to the way in which the legal system ought to fairly operate. [ 28 ] Finally, I agree with Mr. Carot that any application of the proposed principle would be inevitably highly contextual and subject to dispute. [ 29 ] Without this principle in fundamental justice upon which to base the

section 7 analysis, the challenge cannot be successful. The test is not met. Disparities in sentencing regimes for hybrid offences are not irrational, arbitrary or disproportionate merely because the mandatory minimum for the indictable offence has been struck down and may result in sentencing options that are theoretically available in one case and not in another. [ 30 ] I dismiss the application under

section 7 of the Charter . ___________________________ S.D. Frame Provincial Court Judge