Her Majesty the Queen v. G.H.T. Sheck Date:, 2013 BCPC 105

Citation: Her Majesty the Queen v. G.H.T. Sheck Date: 20130103 2013 BCPC 0105 File No: 185633-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN HER MAJESTY THE QUEEN RESPONDENT AND GLENN HARLEY TETSUJI SHECK APPLICANT RULING ON APPLICATION OF THE HONOURABLE JUDGE J. D. BAHEN Counsel for Crown : Winston Sayson, Q.C. Lesley Ruzicka Counsel for Applicant: Neil L. Cobb Elizabeth P. Lewis

Place of Hearing: Surrey , B.C. Dates of Hearing: Jan. 9, 10; Sept. 11, 28, 2012 Date of Judgment: January 3, 2013 [ 1 ] The Applicant is subject to a mandatory minimum sentence of three years imprisonment after conviction for the offence of possession of a loaded prohibited firearm. The Crown proceeded by indictment on this Information.

As this Applicant is a first offender and has no criminal record, the Crown submits the appropriate sentence is the minimum sentence of three years imprisonment. [ 2 ] The Applicant asserts the mandatory minimum sentence violates sections 7 and 12 of the Charter of Rights and Freedoms, and asks this Court to remedy the constitutional violations of his rights by declaring the mandatory minimum to be of no force and effect in his sentencing. [ 3 ] For the reasons that follow, I find that the specific circumstances of this Applicant and this offence do not create a violation of

section 12. However, the general application of this mandatory minimum sentence and the position of persons convicted of this offence in reasonable hypothetical circumstances will create a potential violation of

section 12, by imposing cruel and unusual punishment. I also find the specific circumstances of this Applicant provide him with standing to assert he is directly affected by the differing sentencing provisions between indictable and

summary conviction proceedings for this offence. In the circumstances of this Application, he has established a breach of

section 7 on the balance of probabilities. This breach is caused by the arbitrary gap between the maximum sentence of one year in

summary proceedings and the minimum three year sentence when proceeding by indictment. [ 4 ] I will not grant the remedy sought by the Applicant at this stage of the sentencing hearing, as the Crown has requested an opportunity to consider the preparation and presentation of further evidence relevant to

section 1 of the Charter . Evidence heard in the context of a

section 1 application by the Crown may provide the basis to justify the constitutional breaches in this case and thereby preserve the effect of the mandatory minimum sentencing provisions. Facts of the Offence [ 5 ] The arrest and search of the Applicant on November 4, 2010, was the result of police surveillance on that date. The issues of the admissibility of the firearm seized from the Applicant have been previously decided following a voir dire dealing with issues arising from the arrest, the subsequent search and access to counsel.

Significant portions of the evidence heard at the voir dire cannot be considered proven or admissible at the sentencing phase of this trial. [ 6 ] For the purposes of sentencing, and for the consideration of the issues raised in this constitutional application, the following facts are relevant and admissible. The police had information that the Applicant was carrying a firearm in a black Louis Vuitton bag. The police surveillance team observed the Applicant leave his residence at about 6:40 p.m. He drove to another nearby residence where he spent about ten minutes.

He left this residence and drove to an Earl’s Restaurant on 152 nd Street in Surrey. He arrived at about 7:10 p.m. and entered the restaurant alone, carrying the black bag with him. He was inside the restaurant for about five minutes before coming outside to speak with another man near the restaurant for about 12 minutes. He re-entered the restaurant alone. There were numerous customers and staff inside at this time of the evening. He was seated alone inside the restaurant when the police attended and asked him to accompany them outside.

He complied with their directions and he was arrested without incident in the parking lot of the restaurant. The firearm was seized by police from the black bag that had been next to the Applicant inside the restaurant. The weapon was a handgun, a Glock 9 millimeter semi-automatic. It is a prohibited weapon. The magazine of the firearm, located inside the handle grip, contained 10 cartridges. The firing chamber did not contain any cartridge. Issues [ 7 ] At this stage of the application there are two issues: - whether the mandatory minimum sentence of three years is cruel and unusual punishment in breach of

section 12; and - whether the imposition of the mandatory minimum sentence in this case results in a violation of

section 7. The consideration of any remedy if breaches are found must await the opportunity for

section 1 evidence to be considered by the Crown. [ 8 ] The Applicant bears the burden of proof on the balance of probabilities when alleging a violation of either

section 12 or 7 in this application. The standard for review by courts dealing with applications under

section 12 must be deferential to the proper role of Parliament to assess the relative gravity of offences and create a range of penalties that address the concerns of the community while expressing the intention of the legislators. The presence of a mandatory minimum sentence must be regarded as a legislative decision to intentionally limit the range of judicial discretion in sentencing, while maintaining a proportionate balancing of the principles of sentencing. R. v. Latimer , 2001 SCC 1 ; R. v. Ferguson , 2008 SCC 6 .

Section 12: Is the three year mandatory sentence cruel and unusual punishment? [ 9 ] The individual circumstances of the Applicant must be considered in the first branch of the two stage analysis of this question. The usual range of sentence for this offence must then be assessed, which includes a measurement of the gravity of the offence. Punishment may be cruel and unusual if the individual sentencing outcome for this Applicant is grossly disproportionate when measured against the usual range of sentences for this offence. The three year minimum term of imprisonment is sought by the Crown.

The Applicant was 29 years old at the offence date. He has no criminal record. He is separated from his spouse and pays child support of

$1,500 per month for the three children of his marriage. He is in a common law relationship of about two years duration and has onechild from this relationship. Academic education includes high school graduation and vocational training at BCIT. He has beenemployed since about age 16 and currently works as an apprentice electrician in a family business with his father. There is a supportiveextended family who live in his community. He is also a business partner in the start up phase of a mill enterprise in the B.C. interior.

This planned mill business is intended to expand the opportunities for employment in the First Nations communities near Merritt. He isthe sole source of economic support for his family. There have been highly restrictive bail terms restricting his activities for over twoyears. The Applicant is a member of the Bonaparte Band from the Cache Creek area, which forms a part of the Shuswap First Nation. [10] The usual range of sentence for this offence has been recently considered and assessed by judges in British Columbia to be from18 months to 2 and one half years. R. v. Bacon, 2010 BCPC 325, and R. v.

Pirart, 6 July 2012, Nanaimo Reg. No. 68889-3 (BCSC). The previous statutory minimum of one year imprisonment for this offence can be regarded as creating an increase in the base or lowerlimit of the range, with a corresponding inflationary effect on sentences above that base level minimum. R. v. Guha, 2012 BCCA 423 [11] In this case the Applicant has asserted the range of sentence, in the absence of any statutory minimum, is 12 to 18 monthsimprisonment.

I decline to consider a range that is not guided by the legislative reality that includes a period of about ten years prior to2008, when there was a mandatory minimum of one year imprisonment for this offence. I have considered the differing analyses of therange and have concluded that by any estimation of the range of sentence for this offence, the imposition of the current mandatoryminimum sentence of three years, in place since amendments in 2008, can be viewed as harsh, or excessive or even unfit for thisindividual Applicant. However, a breach of

section 12 only arises where a grossly disproportionate sentence is imposed that is so severeit ventures beyond findings of harshness or unfitness. A cruel and unusual punishment creates an offence to standards of decency andfairness in the community. The imposition of such a cruel and unusual form of sentence leads Canadians to view the punishment asabhorrent and intolerable. R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, and R. v.

Fergsuon, 2008 SCC 6 , [2008] 1S.C.R. 96. [12] If this Applicant were sentenced for this offence based on the facts of the offence and his personal circumstances, without themandatory minimum provision, I would impose a sentence that is less than three years. When I consider the range of sentence for thisoffence and the individual circumstances of the Applicant and the gravity of the specific circumstances of his offence, I have concludedthat the mandatory minimum is not cruel and unusual punishment on the particular facts involved in this individual case.

The three yearmandatory sentence is harsh and excessive in my view, and does not fully address the individual circumstances of this Applicant, orprovide for any meaningful implementation or assessment of the role of factors that may be relevant to aboriginal persons. But thediscrepancies between an individualized sentencing for this Applicant and the mandatory minimum are not of the extreme degree thatwould result in a breach of

section 12. Primarily, the circumstances and gravity of the offence, the presence of a loaded gun readilyaccessible in a busy restaurant, are sufficiently serious to conclude the sentence of three years may be excessive and harsh but not crueland unusual. In addition, the legislative history involved in the creation of this sentencing structure and the analysis of crime andviolence related to use of firearms has been considered, as summarized in R. v. Nur, 2011 ONSC 4874.

My conclusion that the individualApplicant here is not subject to cruel and unusual punishment could seemingly end this constitutional application, as it did in the decisionin R. v. Pirart, supra. However, the Court in Pirart was not asked by counsel to consider the second branch of the analysis of section12. The second form of analysis has been advanced in this Application and was supported as a necessary aspect of the examination ofconstitutional validity in R. v. Goltz, (SCC), [1991] 3 S.C.R. 485.

This approach leads to a consideration of whether themandatory minimum sentence is a grossly disproportionate punishment, within the foreseeable scope of other cases described byreasonable hypothetical circumstances. This form of examination of constitutional validity should be undertaken without encompassingthe “far-fetched or marginally imaginable cases”. Goltz, para. 42. [13] The decision in R. v. Smickle, 2012 ONSC 602 , [2012] O.J. No. 612 illustrates the potential for individual casescenarios to present the wide scope of behaviour that may be encompassed in the offence of possession of a loaded firearm.

The accusedSmickle was subject to a mandatory sentence of three years, as he possessed a loaded handgun and the Crown elected to proceed byindictment. He was a youthful first offender and the evidence at trial, including evidence from the accused, established he was posingwith a gun that did not belong to him while visiting an apartment. He may have been posing to create photo images that would be postedon internet social network sites.

When police forced the door open in an effort to locate a different suspect, the accused Smickle wasinside the apartment, holding the gun in one hand and a laptop computer, presumably with a camera function, in his other hand. TheCourt found the individual circumstances of Smickle, his background and the specific facts of his offence, were sufficient to concludethat the mandatory minimum sentence of three years violated

section 12. The remedy of a declaration was granted, holding themandatory minimum sentence was of no force and effect. [14] The significance of the decision in R. v. Smickle is partly as an example of types of behaviour that may be subject to thesentence of three years imprisonment for this firearms offence. Reasonable hypotheticals have also been advanced in the Applicant’swritten submissions filed at the hearing of this application, following the examples found at paragraph 96 in R. v. Nur, supra.

Foolish orimmature behaviour, spiteful or misguided witnesses, forgetful or inattentive people could be portrayed or perceived initially aspresenting an imminent danger to the public. These types of examples do arise from the circumstances derived from other courtdecisions. While all firearms, and particularly handguns, are intrinsically dangerous when loaded and accessible in a public place, thereare a host of other scenarios that will be subject to the mandatory minimum when the elements of endangerment or serious criminalityare later shown to be tenuous or absent.

The decision to proceed by indictment will be made by Crown Counsel utilizing all of theavailable information gathered by police and presented by Crown witnesses before trial. This will certainly enable Crown to proceed bysummary conviction to avoid the mandatory minimum sentence when the pre-trial police investigation has revealed the innocuous orfoolish nature of some offenders’ conduct. But in Smickle, the defence evidence at trial was the first and only means to assess the entirescope and purpose of the offender’s conduct in the circumstances of the offence.

Our adversarial system of justice will not provideCrown with the full disclosure or even partial awareness of some determinative evidence that may be established at trial through cross-examination of Crown witnesses or the evidence of defence witnesses. [15] Prior to the decision in Smickle, the constitutional validity of the three year minimum sentence was challenged in R. v. Nur,supra. The issue of reasonable hypotheticals was addressed directly and the Court concluded:

…as a matter of common sense it is hard to conceive of a “reasonable hypothetical” that depends on the Crown unreasonably electing to proceed by indictment, when the fair, just and appropriate election is to proceed summarily. To the extent that the “reasonable hypotheticals” relied upon by the Applicant and the Intervenors posit a case where the Crown would and should reasonably elect to proceed summarily but, instead, unreasonably proceeds by indictment, I am satisfied that they are all “far-fetched or only marginally imaginable”, as Gonthier, J. put it in Goltz , supra.

In other words, they are not reasonable hypotheticals because they are all cases where Crown counsel, acting with fairness and objectivity, would elect to proceed summarily and, therefore, where no mandatory minimum sentence would ever apply. R. v. Nur , supra, at para. 110 [ 16 ] After expressing this confidence in the effectiveness of Crown discretion to ensure constitutional validity through electing the mode of proceeding in

section 95 offences, the potential for flawed outcomes through lack of information at the pre-trial stage when Crown election decisions are made was also addressed as follows: In conclusion on this branch of the Charter argument, I note that the Respondent’s success in relying on Crown discretion and the statutory power to proceed summarily under

section 95, as a constitutional “safety valve” against s. 12 violations, is not without risks or costs. Crown elections to proceed summarily or by indictment are usually made at an early stage of proceedings, when the Crown is not always in possession of all the facts.

If the Crown elects to proceed by indictment in a s. 95 case, based on incomplete knowledge of the facts, and a very different case later emerges at trial, a s. 12 Charter motion may well succeed at the sentencing stage of proceedings.… The first improvident Crown election, to proceed by indictment when the proper election was to proceed summarily, may well result in a successful s. 12 Charter motion. …This difficult issue is not before me, as there is no attack on the reasonableness of the Crown’s election in this particular case.

However, the issue is likely to arise if and when the Crown unfairly or unreasonably elects to proceed by indictment in a s. 95 case. R. v. Nur , at paras. 117, 118, 120 . [ 17 ] The Court in Nur referred to the absence of any attack on the reasonableness of the Crown’s election in declining to address this aspect of the Charter application. I respectfully disagree with the view that the analysis of potential reasonable hypotheticals, including a Crown election decision, can be undertaken only in the context of an attack on the reasonableness of the specific Crown’s decision to proceed by indictment.

There is no such attack in this Application, and there is no evidence to suggest there was anything in the Crown conduct here to permit judicial review in any way on the facts of the current Application. [ 18 ] All

section 95 offence cases where the potential for a

section 12 violation exists will necessarily involve cases where the Crown elected to proceed by indictment. It is the legislative framework of the sentencing regime that is under attack in this section12 Charter motion. There is no factual need or legal basis to characterize the Crown discretionary election as unreasonable or unfair. The Crown can be presumed to be acting within the defined and legitimate scope of their statutory authority when an election decision is made. The Crown election decision is not the true source of any violation of

section 12. It is the legislated sentencing framework that contains the potential source of the

section 12 violation. [ 19 ] The need for scrutiny of reasonable hypotheticals, including hypotheticals involving unforeseen mitigating circumstances, is given added necessity by the clearly expressed concerns in Nur , that a partially informed and early, yet not unreasonable, decision by Crown to proceed by indictment may lead to a

section 12 violation at sentencing. The prospect is real and foreseeable, based on the inherent unpredictable nature of the trial process and the evidence from witnesses who may be unknown and undisclosed to Crown until the trial has been completed. This is not a presumption against the reasonable exercise of discretion by the Crown. It is instead an acknowledgment of the reality of the criminal trial process and the discovery of evidence that results from that process.

Further individual factors that are often unknown to Crown before trial include the relevance and application of Gladue principles and aboriginal culture in the criminal justice system. The recent decision of the Ontario Court of Appeal in the context of extradition proceedings discusses the imperative requirement for prosecutorial discretion to be informed and responsive to relevant Gladue principles in the exercise of the fundamental decisions. It is not only in criminal sentencing, but also in the wider array of prosecutorial decisions where the Gladue principles should be considered. United States v.

Leonard, 2012 ONCA 622 , at paras. 81-89 . [ 20 ] The Ontario Court of Appeal has recently noted the

section 718.2(

e) principles relating to aboriginal persons will be part of the necessary process in sentencing where a mandatory minimum sentence applies. In terms of practical effect, the Gladue factors may be limited in their scope by the operation of a constitutionally valid mandatory minimum sentence. R. v. Brooks, 2012 ONCA 703 [ 21 ] I conclude there is a violation of

section 12 in reasonably foreseeable hypothetical circumstances where the circumstances of the offence and the offender, established by evidence at trial, would lead to a mandatory minimum sentence that is grossly disproportionate.

Section 7: Is there a violation of the principles of fundamental justice in the sentencing for

section 95 offences? [ 22 ] The question of whether the two year gap between the maximum of one year imprisonment on a

summary conviction proceeding and the minimum three year sentence for a indictable proceeding for

section 95 offences has been extensively analyzed in Nur and in Smickle . I agree with the concerns expressed in both those decisions regarding the apparently irrational and arbitrary results arising from the current two year gap in the sentencing framework for these offences. Although the lack of standing by the accused prevented the Court in Nur from proceeding beyond an initial overview of the

section 7 issue, the Court in Smickle found the range of potential sentences applicable to the accused could fall within the sentencing range of one to three years excluded from consideration by

the gap in the legislation. The Court found standing was therefore established by the accused Smickle, and concluded the gap resulted in an arbitrary sentencing regime that was contrary to the principles of justice and violated

section 7. [ 23 ] In my view, this Applicant has also shown a basis to obtain standing as I regard the potential range of sentences in this case could include a sentence in the gap between one year and three years. To view the question of standing as proposed by the Crown, would require that the accused be a candidate for a sentence of one year or less. That range of sentence may seem remote on the facts of this specific offence. But such a restrictive view of standing implicitly adopts the existing irrational structure, with the two year gap, and would limit

section 7 standing on the basis of assumed validity for a sentencing structure that is the subject of the

section 7 challenge. In addition, the real focus in this

section 7 challenge is not on the exercise of Crown discretion, which was reasonably applied on the facts of this case. To limit standing to cases where the Court finds the initial threshold is determined by the potential exercise of Crown discretion to proceed summarily would shift the focus of the

section 7 inquiry. It is the arbitrary sentencing gap, not the exercise of Crown discretion that may infringe

section 7. On that basis, and for the reasons expressed in Nur , at paragraphs 121 to 143 , and in Smickle , at paragraphs 90 to 96 , I conclude that the gap of two years in the structure of sentencing for

section 95 offences creates an arbitrary and fundamentally unjust sentencing process in violation of

section 7. [ 24 ] The concerns expressed by the Court in R. v. Safarzadeh-Markhali, 2012 ONCJ 494 , have some relevance to the present Application, as illustrating the potential injustice created by provisions other than mandatory minimums that operate inflexibly to curtail judicial discretion at the early stages of a criminal trial process. Mandatory minimum sentences are intended to curtail such discretion, but only to the extent that the limitation of discretion does not violate constitutional principles.

The issue in this recent Ontario decision was raised in the context of a constitutional challenge to the validity of section 719 (3.1) of the Criminal Code . The decision of a justice presiding at a bail hearing to invoke the provisions of section 515 (9.1) in detaining the accused would eliminate the discretion of the trial judge at sentencing to grant credit for time spent in custody at a ratio of 1.5 to 1. This legislative scheme was ruled unconstitutional. There was not any suggestion that the decision of the justice at the bail hearing should be the focus of the constitutional challenge.

Instead, the application concentrated on the constitutional flaws in the legislative framework that resulted in a violation of

section 7. As with the exercise of the Crown discretion to elect indictable or

summary procedures, the decision at a bail hearing stage could not be as fully informed of the individual circumstances relevant to the imposition of a just sentence as compared to the information provided months later to a trial judge at a sentencing hearing. This legislative flaw violated the principles of fundamental justice in

section 7. The initial decision was not viewed as unreasonable or wrong, but the consequences were unjustifiable when subject to the

section 7 challenge. R. v. Safarzadeh-Markhali , supra, at para. 28 . Conclusion [ 25 ] At this stage of this sentencing hearing, I will not consider any remedy for the breaches of sections 12 and 7 of the Charter , but will adjourn the proceedings to allow counsel an opportunity to advise the Court whether the Crown will require some additional time to prepare for the presentation of any evidence relevant to the possible application of

section 1 of the Charter. A consideration of the appropriate sentence for the Applicant must also await the potential

section 1 application and any further evidence relevant to the imposition of a sentence based on the individual circumstances of this case. ________________________________ The Honourable Judge J. D. Bahen Provincial Court of British Columbia