R. v. Penunsi, 2020 NLSC 101

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Penunsi , 2020 NLSC 101 Date : July 17, 20 20 Docket : 201908G0006 Her Majesty The Queen v. Isabel Penunsi Before: Justice Frances J. Knickle Judgement on Appeal Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: August 8, 2019

Summary: The Appellant was convicted of driving while her blood alcohol was in excess of the legal limit. The conviction was her third for such an offence. Notwithstanding that she faced mandatory imprisonment, she advised the sentencing court that she wished to seek a curative discharge. The option was not available in Newfoundland and Labrador.

The Appellant challenged the constitutionality of legislation affording the Provinces the discretion whether to enact the curative discharge provision in the Criminal Code ; asserting the failure to be able to take advantage of a curative discharge disadvantaged her as an aboriginal offender. The sentencing judge dismissed her application at the outset; adopting the reasoning from another provincial court judge who had previously decided the issue. The Appellant was sentenced to the mandatory minimum of 120 days imprisonment.

The Appellant appealed; arguing that the sentencing judge erred in dismissing the application. The appeal was dismissed.

Appearances: Michael E. Berrigan Appearing on behalf of the Crown Jessica D. Tellez Appearing on behalf of the Appellant Authorities Cited: CASES CONSIDERED: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13 , [2012] 1S.C.R. 433; R. v. Andrew and R. v. Penashue (April 18, 2018), Happy Valley-Goose Bay, 1715A00264/1717A00374 (PCNL); R. v. S.S.,[1990] S.C.R. 254; R. v. Jackson (1993), (NL CA), 104 Nfld. & P.E.I.R. 349, 18 W.C.B. (2d) 622 (Nfld. C.A.); R. v.Jordan, 2016 SCC 27; R. v. Cody, 2017 SCC 31; R. v. Henry, 2005 SCC 76; R. v.

Kapp, 2008 SCC 41; Droit de la Famille – 09178, 2013SCC 5; Kahkewistahaw First Nation v. Taypotet, 2015 SCC 30; R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296; R. v.Daybutch, 2015 ONCJ 302; R. v. Daybutch, 2017 ONSC 6678; R. v. Sabbatis, 2020 ONCJ 242. STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27(1st Supp.); Canadian Charter of Rights and Freedoms, s. 11,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act1982 (U.K.), 1982, c.11; Young Offender’s Act, R.S.C. 1985, c. Y-1. TEXTS CONSIDERED: Rowe, J. and Leanna Katz, “A Practical Guide to Stare Decisis”

(2020) Windsor Review of Legal and SocialIssues, Vol. 41, Page 18. REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] The Appellant, Isabel Penunsi, is aboriginal. She is Innu and resides in the community of Sheshatsiu, Newfoundland andLabrador. She has now acquired three convictions under the Criminal Code of Canada, R.S.C. 1985, c. C-46, for impaired driving. Thismeans that having been found guilty after a trial for her third conviction, she was liable to a minimum term of imprisonment of 120 days. [2] In sentencing Ms.

Penunsi, the sentencing judge was satisfied the mandatory minimum of 120 days imprisonment was the fitsentence. Ms. Penunsi disagreed; asserting that as an aboriginal offender, she should be entitled to avail of the curative dischargeprovisions under section 255(5) (as that

section read at the time) of the Criminal Code, even though that

section has never been in forcein Newfoundland and Labrador. Section 255(5) states: 255(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under

section 253, afterhearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcoholor drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under

section 730 on theconditions prescribed in a probation order, including a condition respecting the person’s attendance for curative treatment in relation tothat consumption of alcohol or drugs. [3] Ms. Penunsi in company with another accused Mr. Pokue, who was also facing sentencing for a driving offence, brought anapplication seeking to have the court find that the legislation that affords the provinces the discretion whether to enact the curativeprovision, section 209(2)[1] of the Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.) (the “CLA”) violates their rightsto equal treatment under

section 15 of the Canadian Charter of Rights and Freedoms, s. 11,

Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the “Charter”). Section 209(2) of the CLA states: 209.

(1) Subject to this section, this Act or any provision thereof or any provision of the Criminal Code or any other Act of Parliament asenacted or amended by this Act shall come into force on a day or days to be fixed by proclamation. (2) Subsections 254(2) and 255(5) of the Criminal Code, as enacted by

section 36 of this Act, shall come into force in any province on aday or days to be fixed by proclamation with respect to that province.

[4] Ms. Penunsi asserted that section 209(2) violates her right to equal treatment under

section 15 of the Charter in that it permitsthe Province to decline enacting the curative sentencing section. Ms. Penunsi asserted that as an aboriginal offender, she is entitled to arestorative approach to sentencing; relying on

section 718.2(

e) of the Criminal Code and the

interpretation that

section has receivedunder such cases as R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13 , [2012] 1S.C.R. 433. As an aboriginal person,

section 718.2(

e) requires that she should be entitled a restorative approach to sentencing. [5]

Section 718.2(

e) states: 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [emphasis added] [6] Ms. Penunsi asserted that the availability of curative treatment would provide a more “restorative” sentencing option thanmandatory imprisonment as required under

section 718.2(e). Because the Province has not enacted section 255(5), availing of this morerestorative sanction is not a sentencing option for her. [7] In response, the Crown sought to have both applications summarily dismissed. In support of their position that the applicationhad no merit, the Crown supplied the decisions of R. v. Andrew and R. v. Penashue (April 18, 2018), Happy Valley-Goose Bay,1715A00264/1717A00374 (PCNL) where Judge Trahey recently pronounced on the constitutionality of the unavailability of the curativeprovision.

The decision in Andrew and Penashue [8] The accused in Andrew and Penashue, like Ms. Penunsi and Mr. Pokue, were aboriginal, and like Ms. Penunsi and Mr. Pokueasserted they were being discriminated against by the curative discharge not being an available sentencing option. Judge Traheydismissed the applications on the basis that the challenge had not been properly framed. The parties had challenged the provisionproviding for the curative discharge itself, not section 209(2) of the CLA. There also had been no notice provided to the federal attorneygeneral of the challenge to the federal legislation.

Given these inadequacies, Judge Trahey dismissed the applications. [9] However, Judge Trahey reasoned that even if the applications had been properly framed she would not find that the rights ofthe accused under

section 15 were violated. After a thorough review of Charter decisions involving allegations of legislation violatingsection 15 rights, Judge Trahey found that the offenders in Andrew and Penashue did not establish that the legislation permitteddiscrimination as contemplated by

section 15 of the Charter. Judge Trahey relied in part, upon the Supreme Court of Canada’s decisionin R. v. S.S., [1990] S.C.R. 254, where the Supreme Court considered a similar constitutional challenge. In S.S., the province of Ontariohad not enacted “alternative measures” programs under

section 4 of the former Young Offender’s Act, R.S.C. 1985, c. Y-1. Otherprovinces had enacted such measures. The accused claimed discrimination under

section 15 of the Charter. The Supreme Courtdisagreed finding that the differences of treatment was on the basis of the province in which the accused lived, and that this was adifference, in the circumstances that did not offend

Section 15. [10] Judge Trahey also pointed to the Newfoundland Court of Appeal decision in R. v. Jackson (1993), (NL CA),104 Nfld. & P.E.I.R. 349, 18 W.C.B. (2d) 622 (Nfld. C.A.), where Chief Justice Goodridge of the Court of Appeal overturned a lowercourt’s decision that an accused should have had the opportunity to avail of the curative provision in sentencing. Judge Trahey stated: ...The discretion to declare the curative treatment conditional discharge provisions of the Criminal Code in force is granted to theprovinces.

Where a province fails to do so, it is the citizens of that province who are deprived of the sentencing options. In provinceswhere the discharge provisions have not been declared in force, constitutional challenges have been raised. In this province, theconstitutional challenge was mounted in the case of R. v. Jackson, [1993] NJ No. 39. There the offender was granted a discharge at trialdespite the failure of the province to enact the curative treatment discharge provisions.

The trial judge held that the non-proclamation ofthen s. 239(5) affected Jackson’s equality rights and determined in remedy that he should have the benefit of the provisions of thesection. On appeal, Chief Justice Goodridge, as he then was, having considered the facts and the prevailing case law, includingAndrews, held that: The respondent did not show, however, that the inequality or distinction between himself and persons similarly situated in those otherprovinces where s. 255(5) has been proclaimed in force was the result of discrimination as described by McIntyre J. in Andrews.

There is no reason to suppose that the failure to proclaim s. 255(5) in force is the result of discrimination against persons inNewfoundland and in those other provinces where s. 255(5) has not been proclaimed in force or, for that matter, that it is the result ofdiscrimination of any nature. Chief Justice Goodridge concluded:

Any inequality that may deem to exist in this case is not the consequence of discrimination under s. 15(1) of the Charter. The respondentis not entitled to a remedy under s. 24(1), more specifically the remedy which the trial judge provided by deeming s. 255(5) in force inNewfoundland. Similar outcomes have resulted in constitutional challenges launched in other provinces. And I refer to, R. v. Vanvleet, [1988] BCJ No2480, a Decision of the British Columbia Court of Appeal, R. c. Ellsworth, [1988] JQ No 1800, a Decision of the Quebec Court ofAppeal, and R. v.

Alton, [1989] OJ No 2418, a Decision of the Ontario Court of Appeal. … [11] Applying the above reasoning, Judge Trahey accepted that there was differential treatment of persons as a result of thediscretion afforded the provinces under section 209(2). However the differential treatment was not based on the fact that the accusedwere aboriginal, but because they resided in Newfoundland and Labrador. Differences of treatment based on the unavailability of thecurative discharge provision because of being a resident of Newfoundland and Labrador, as per Jackson, did not offend

section 15. [12] Judge Trahey also did not accept that the enactment of

section 718.2(

e) of the Criminal Code established a link between section15 of the Charter and the discretion afforded the Provinces to not enact the curative provision. Judge Trahey reasoned that section718.2(

e) had application only to sanctions that were available and thus had no application to the unavailability of the curative provisionin Newfoundland and Labrador. Judge Trahey stated: …Thus, when s. 718.2(

e) was crafted to read that, “all available sanctions, other than imprisonment should be considered for alloffenders with particular attention to the circumstances of aboriginal offenders”, it can be presumed that Parliament intended to excludefrom consideration sanctions which were not available to citizens in particular provinces, as they had not yet been declared in force. HadParliament intended otherwise, it could have changed the the (sic) promulgation criteria, such that the curative treatment conditionaldischarge provision would be in force and effect in each province and territory in the country.

Without such a universal proclamation, thecurative treatment conditional discharge provision, is not a sanction available to Nathan Penashue or Derek Andrew. … [13] The Crown submitted that the reasoning in Andrew and Penashue applied to the circumstances involving Ms. Penunsi and Mr.Pokue. As such, there was no reasonable prospect of success of their applications. Given the strong direction from the Supreme Court ofCanada in R. v. Jordan, 2016 SCC 27, and R. v.

Cody, 2017 SCC 31 to ensure that matters are not unnecessarily delayed, and court timeis used efficiently, the sentencing judge should exercise her discretion to dismiss the applications. The Decision by the Sentencing Judge [14] The sentencing judge dismissed the applications. Relying on the reasoning in Andrew and Penashue, and exercising herdiscretion to consider the merits of the application at the outset, the sentencing judge stated, at paragraphs 18 to 20 of her oral decision: [18] All courts have limited resources and time in which to hear matters. The Supreme Court of Canada in R. v.

Jordan 2016 SCC 27, [2016] 1 S.C.R. 631 has been critical of the amount of time it takes to have matters proceed through the court process. In thepost-Jordan era, there is pressure on all parties in the justice system, including the court to have matters move as expeditiously aspossible without compromising the rights of those involved in the system. [19] It is important to recognize matters which are duplicitous and engage unnecessary use of court time in order to allow more timefor matters which are pressing.

Provincial courts, in particular, are tasked with “frontline” duties and often have persons in custodyawaiting bail hearings, trial dates and sentencing dates and almost all accused persons are subject to conditions restricting their libertiespending resolution of their matters. [20] Having reviewed the applications by Mr. Pokue and Ms. Penunsi and the decision of Judge Trahey which reviews relevantjurisprudence from across the country, I find her reasons compelling and, although made in obiter, find they address the question raisedby defence counsel.

It would be duplicitous and cause unnecessary delay in concluding both Mr. Pokue’s and Ms. Penunsi’s matter toconduct a hearing in this instance and the Charter applications are dismissed. [15] Ms. Penunsi now appeals to this Honourable Court. Mr. Pokue also initially appealed the decision of the sentencing judge. Hehas since abandoned his appeal and thus has no further

part in these proceedings. The Appellant initially launched her review of thesentencing judge’s decision by way of certiorari; arguing that the sentencing judge had exceeded her jurisdiction by not considering herapplication on its merits. However the parties agreed that the Application for certiorari should be treated as an appeal from sentenceunder

section 813 of the Criminal Code. Given the nature of the arguments, an appeal from sentence was what the Appellant wasseeking from the Court. [16] At the hearing of the appeal in this Court, the Appellant was afforded the opportunity to present her argument not solely as tohow the sentencing judge erred in the manner in which the application was heard, but also as to why section 209(2) was unconstitutional. Both parties agreed that if a finding of unconstitutionality was made the matter would need to be set over for a hearing with respect towhether the

section could be saved under

section 1 of the Charter. Both parties also confirmed that the proper notices to the provincialand federal attorneys general had been given. THE POSITION OF THE PARTIES [17] Ms. Penunsi submits that the sentencing judge erred in dismissing the application. The sentencing judge erred in exercising toher discretion to screen the application on a preliminary basis and failed to consider the application on the merits. The sentencing judgealso erred in relying on the obiter comments in Andrew and Penashue to support her decision.

[18] The Crown submitted that there was no error committed by the sentencing judge in dismissing the application and the appealshould be dismissed. There is no basis to find that the section 209(2) of the CLA discriminates against the Appellant on the basis of herbeing aboriginal. The reasoning in Andrew and Penashue was compelling and applied equally to the circumstances of Ms. Penunsi. Thesentencing judge properly adopted the reasoning.

ISSUES [19] The issues can be framed as follows: 1) Did the learned sentencing judge err in exercising her discretion to consider the application as per the direction in R. v.Cody? 2) Did the learned sentencing judge err in relying on the reasoning of Judge Trahey? 3) Did the learned sentencing judge err in finding that section 209(2) did not violate

section 15 of the Charter? ANALYSIS 1) Did the learned sentencing judge err in exercising her discretion to consider the application as per the direction in R. v.Cody? [20] The sentencing judge exercised her discretion as per the guidance from the Supreme Court of Canada in Cody, to consider theapplication on a preliminary basis. In Cody, the direction given to trial judges to exercise their discretion to screen out weak pre-trialapplications was in the context of addressing systemic concerns of unreasonable delay under

section 11(

b) of the Charter. Under section11(b), persons charged with an offence have a right to be tried within a reasonable time. The Supreme Court provided clear direction totrial courts in Jordan initially, and confirmed in Cody, as to how the assessment of reasonableness was to be done; including the need forall participants to overcome their own inertia in managing their caseloads. At paragraph 38, the Court stated: 38 In addition, trial judges should use their case management powers to minimize delay.

For example, before permitting anapplication to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defencecounsel to summarize the evidence it anticipates eliciting in the voir dire and, where that

summary reveals no basis upon which theapplication could succeed, dismissing the application summarily (R. v. Kutynec (1992), (ON CA), 7 O.R. (3d) 277(Ont. C.A.), at pp. 287-89; R. v. Vukelich (1996), (BC CA), 108 C.C.C. (3d) 193 (B.C. C.A.)). And, even where anapplication is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss“applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function appliesequally to Crown applications and requests.

As a best practice, all counsel — Crown and defence — should take appropriateopportunities to ask trial judges to exercise such discretion. [21] In these circumstances, the sentencing judge was asked to assess the application on a preliminary basis by the Respondent, assuggested in Cody, to determine whether there was a realistic prospect of success before launching into a full fledged hearing on whetherthere was a violation under

section 15 of the Charter. I see no error in her approaching the application in this manner. At the time theapplication was made, whether the failure of the province to enact the curative discharge provision violated

section 15 rights of anaboriginal accused had been recently and thoroughly considered by a fellow judge, albeit in obiter and in relation to a different accused. [22] More importantly, the issue, at least insofar as it related to residents of Newfoundland and Labrador, was settled by the Court ofAppeal in Jackson. In the absence of a distinguishing feature of the Appellant’s circumstances, it was reasonable for the sentencingjudge to consider whether the application had a reasonable prospect of success.

If the sentencing judge was satisfied there was no basisto distinguish the circumstances here from the circumstance that would affect the applicability of the reasoning in Jackson, or in Andrewand Penashue, that would be the end of the matter. [23] Further, notwithstanding that the sentencing judge was asked to assess the application on a preliminary basis, her analysis wasnot cursory. The sentencing judge in fact set the matter to a specific date for a hearing, and gave the appellant the opportunity to file awritten argument and support for her position.

In making her decision, the sentencing judge considered the reasoning in Andrew andPenashue in detail, and understood the arguments. She found there was no difference in the arguments between Ms. Penunsi and thosemade in Andrew and Penashue. [24] I see no basis to interfere with her decision on the basis that the sentencing judge improperly exercised her discretion to assessthe application on a preliminary basis.

To the contrary, the sentencing judge exercised properly her discretion when she considered theapplication within the ambit as contemplated in Cody. 2) Did the learned sentencing judge err in relying on the reasoning of Judge Trahey? [25] I also see no error by the sentencing judge in relying on the reasoning in Andrew and Penashue. [26] It is true that the comments by Judge Trahey that the accused’s rights under

section 15 were not violated were “obiter” in thesense that they did not form the basis for her dismissal of their application. However, the fact that the comments or reasoning in adecision may not constitute the core of the decision, does not mean they are not of value to another judge seeking to apply the law. Asstated in R. v. Henry, 2005 SCC 76 at paragraph 57: 57 The issue in each case, to return to the Halsbury question, is what did the case decide?

Beyond the ratio decidendi which, as theEarl of Halsbury L.C. pointed out, is generally rooted in the facts, the legal point decided by this Court may be as narrow as the juryinstruction at issue in Sellars or as broad as the Oakes test. All obiter do not have, and are not intended to have, the same weight. Theweight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidanceand which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be

helpful and may be found to be persuasive, but are certainly not “binding” in the sense the Sellars principle in its most exaggerated formwould have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that eachphrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with thebasic fundamental principle that the common law develops by experience. [27] As the above statement in Henry illustrates, whether reasoning is obiter depends on what issues were to be decided. Even obiterreasoning may have persuasive value. As recently explained in the

article by Rowe, J. and Leanne Katz from “A Practical Guide to StareDecisis”,

(2020) Windsor Review of Legal and Social Issues, vol. 41, the authors stated at page 18: Trial courts ordinarily follow decisions of other judges from the same court, absent compelling reasons to the contrary. The law acceptsthat in certain circumstances a decision from a judge of the same court need not be followed. [28] In these circumstances, the sentencing judge was clear that she found the reasoning in Andrew and Penashue compelling andpersuasive. The reasoning was apposite to the task awaiting the sentencing judge: whether section 209(2) permitted a violation of Ms.Penunsi’s rights under

section 15 of the Charter. The issue was live before her. The sentencing judge was obliged to address the issueand was entitled to consider the reasoning she determined was applicable. This is what judges do. 3) Did the learned sentencing judge err in finding that section 209(2) did not violate

section 15 of the Charter? [29] Even if the sentencing judge ought not to have approached the assessment of the application on a preliminary basis, theAppellant still cannot succeed in her appeal. Upon hearing the arguments of Ms. Penunsi, as was permitted at this appeal, in my view,the reasoning of both the sentencing judge and that in Andrew and Penashue is sound, and the appeal should be dismissed. [30] There is no dispute that

section 15 of the Charter guarantees that persons may not be discriminated against on the basis of theidentified groups as listed under

section 15, or as an analogous group.

Section 15 of the Charter states: 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantagedindividuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age ormental or physical disability. [31] The test to be applied in determining whether or not a law violates a

section is as stated in R. v. Kapp, 2008 SCC 41, atparagraph 17: 17 The template in Andrews, as further developed in a series of cases culminating in Law v. Canada (Minister of Employment andImmigration), (SCC), [1999] 1 S.C.R. 497, established in essence a two-part test for showing discrimination under s.15(1):

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantageby perpetuating prejudice or stereotyping?

These were divided, in Law, into three steps, but in our view the test is, in substance, the same. [32] At paragraph 25, the court states that the aim of both sections 15(1) and (2) is to prevent governments “from makingdistinctions based on the enumerated or analogous grounds that: have the effect of perpetuating group disadvantage and prejudice; orimpose disadvantage on the basis of stereotyping” (see also Droit de la Famille – 09178, 2013 SCC 5 at paragraphs 85 and 86, andparagraphs 323 and 348). [33] I agree with both the sentencing judge, and the reasoning in Andrew and Penashue, that there is no basis to find that section209(2) results in discrimination, either intended or unintended on the basis that the Appellant is aboriginal.

The Appellant cannot meetthe first prong of the test: that the law creates a distinction based on an enumerated or analogous ground. This is because, while section209(2) creates a distinction, the distinction is between the provinces; not on the basis that the accused is aboriginal. Section 209(2)creates differing treatment between persons resident in the provinces who have enacted the curative provision and provinces where thecurative provisions have not been enacted. This distinction may result in unequal treatment to the residents of the provinces where theprovision has not been enacted such as Ms.

Penunsi, and all residents of Newfoundland and Labrador; but this is a distinction based ongeography, not on being aboriginal, as asserted by Ms. Penunsi. [34] I accept that distinctions on the basis of differences in provincial residency might in some circumstances give rise to a findingdiscrimination under

section 15 of the Charter, but I agree with the reasoning of both judges that such is not the case here. [35] It is not enough to be a member of an identifiable group. There must be a link between the impugned law and disadvantagesuffered from being a member of the group. Not every difference in treatment will necessarily result in discrimination. As stated by theSupreme Court of Canada in Kahkewistahaw First Nation v.

Taypotet, 2015 SCC 30 at paragraph 16-18: 16 The approach to s. 15 was most recently set out in Droit de la famille - 091768, 2013 SCC 5 , [2013] 1 S.C.R. 61(S.C.C.) [hereinafter Quebec (Attorney General) v. A.], at paras. 319-47. It clarifies that s. 15(1) of the Charter requires a "flexible andcontextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or hermembership in an enumerated or analogous group": para. 331 (emphasis added).

17 This Court has repeatedly confirmed that s. 15 protects substantive equality: Quebec (Attorney General) v. A., at para. 325;Withler v. Canada (Attorney General), 2011 SCC 12 , [2011] 1 S.C.R. 396 (S.C.C.), at para. 2; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 (S.C.C.), at para. 16; Andrews v. Law Society (British Columbia), (SCC), [1989] 1 S.C.R.143 (S.C.C.). It is an approach which recognizes that persistent systemic disadvantages have operated to limit the opportunities availableto members of certain groups in society and seeks to prevent conduct that perpetuates those disadvantages.

As McIntyre J. observed inAndrews, such an approach rests on the idea that not every difference in treatment will necessarily result in inequality and that identicaltreatment may frequently produce serious inequality: p. 164. 18 The focus of s. 15 is therefore on laws that draw discriminatory distinctions — that is, distinctions that have the effect ofperpetuating arbitrary disadvantage based on an individual's membership in an enumerated or analogous group: Andrews, at pp. 174-75;Quebec (Attorney General) v. A., at para. 331.

The s. 15(1) analysis is accordingly concerned with the social and economic context inwhich a claim of inequality arises, and with the effects of the challenged law or action on the claimant group: Quebec (Attorney General)v. A., at para. 331. [36] The Court stated further at paragraph 21: 21 To establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate that the law at issue has adisproportionate effect on the claimant based on his or her membership in an enumerated or analogous group.

At the second stage of theanalysis, the specific evidence required will vary depending on the context of the claim, but "evidence that goes to establishing aclaimant's historical position of disadvantage" will be relevant: Withler, at para. 38; Quebec (Attorney General) v. A., at para. 327. [37] Whether the failure to enact the curative discharge provision violated the

section 15 rights of a resident of Newfoundland andLabrador, was addressed directly by the Court of Appeal of Newfoundland and Labrador in Jackson. The challenge did not involve thediffering treatment by the offender because he was aboriginal, but because the curative provision had not been enacted in Newfoundlandand Labrador. The Court found that the discretion afforded the provinces to not enact the curative discharge provision while creating adistinction, did not result in a violation under

Section 15 of the Charter. The Court of Appeal did not accept the distinction based onwhich province a person is resident was a distinction that was based on an enumerated or analogous group under

section 15. [38] The Court of Appeal in Jackson found support in R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296, where theSupreme Court in Turpin unanimously held the fact that a judge alone trial for the offence of murder was available in Alberta and notOntario. While creating inequality in the availability of criminal procedures across Canada, the inequality was not discriminatory inpurpose or effect.

At pages 1333-1334, the Supreme Court stated: Differentiating for mode of trial purposes between those accused of s. 427 offences in Alberta and those accused of the same offenceselsewhere in Canada would not, in my view, advance the purposes of s. 15 in remedying or preventing discrimination against groupssuffering social, political and legal disadvantage in our society.

A search for indicia of discrimination such as stereotyping, historicaldisadvantage or vulnerability to political and social prejudice would be fruitless in this case because what we are comparing is theposition of those accused of the offences listed in s. 427 in the rest of Canada to the position of those accused of the offences listed in s.427 in Alberta. To recognize the claims of the appellants under s. 15 of the Charter would, in my respectful view, "overshoot the actualpurpose of the right or freedom in question": see R. v. Big M Drug Mart Ltd., at p. 344.

I would not wish to suggest that a person's province of residence or place of trial could not in some circumstances be a personalcharacteristic of the individual or group capable of constituting a ground of discrimination. I simply say that it is not so here. Personsresident outside Alberta and charged with s. 427 offences outside Alberta do not constitute a disadvantaged group in Canadian societywithin the contemplation of s. 15. [39] Similarly, in S.S., the Supreme Court of Canada again found no discrimination under

section 15 of the Charter on the basis thatalternative measures had not been enacted in Ontario but had been so enacted in other provinces. In finding there was no discriminationby Ontario exercising its discretion to not enact alternative measures, Chief Justice Dickson, speaking for the court, stated at paragraph50: 50 It is necessary to bear in mind that differential application of federal law can be a legitimate means of forwarding the values of afederal system.

In fact, in the context of the administration of the criminal law, differential application is constitutionally fostered by ss.91(27) and 92(14) of the Constitution Act, 1867. The area of criminal law and its application is one in which the balancing of nationalinterests and local concerns has been accomplished by a constitutional structure that both permits and encourages federal-provincial co-operation.

A brief review of Canadian constitutional history clearly demonstrates that diversity in the criminal law, in terms of provincialapplication, has been recognized consistently as a means of furthering the values of federalism. Differential application arises from arecognition that different approaches to the administration of the criminal law are appropriate in different territorially-basedcommunities. In a line of cases beginning with Fredericton (City) v. R. (1880), 1880 CanLII 28 (SCC), 3 S.C.R. 505, 2 Cart. 27 [N.B.],this court consistently has upheld federal statutes with differential geographic application.

As Laskin J. conceded in his dissentingreasons in R. v. Burnshine, (SCC), [1975] 1 S.C.R. 693, 25 C.R.N.S. 270, [1974] 4 W.W.R. 49, 15 C.C.C. (2d) 505, 44D.L.R. (3d) 584, 2 N.R. 53 [B.C.], a case which dealt with the differential application of a provision of the Criminal Code in the contextof s. 1(

b) of the Canadian Bill of Rights, at p. 715: As a matter of legislative power only, there can be no doubt about Parliament's right to give its criminal or other enactments specialapplications, whether in terms of locality of operation or otherwise.

That principle was reaffirmed by Le Dain J., in the context of s. 1(

b) of the Canadian Bill of Rights, writing for the court in R. v. Cornell, (SCC), [1988] 1 S.C.R. 461, 63 C.R. (3d) 50, 4 M.V.R. (2d) 153, 40 C.C.C. (3d) 385, 33 C.R.R. 193, 27 O.A.C. 360, 83N.R. 384. Finally, it was recognized in the context of s. 15 of the Charter by Wilson J. in Turpin, supra, at p. 1334: In concluding that s. 15 is not violated in this case, I realize that I am rejecting the proposition accepted by several Courts of Appeal inCanada that it is a fundamental principle under s. 15 of the Charter that the criminal law apply equally throughout the country.

I agree with that conclusion and find it equally applicable to the facts of this appeal. [40] In Jackson, Chief Justice Goodridge found there was “no reason to suppose” that the failure to enact section 255(5) was theresult of discrimination against persons in Newfoundland and Labrador. Similarly here, there is no reason to suppose that the failure toproclaim section 255(5) is the result of discrimination against aboriginal persons residing within Newfoundland and Labrador. [41] If the Province’s discretion does not give rise to discrimination under

section 15 for persons living within Newfoundland andLabrador, there is no more force to the argument because the resident of Newfoundland and Labrador is also a member of an aboriginalcommunity resident in Newfoundland and Labrador. [42] The varying availability of the curative provision depending on the province in which a person resides, is an illustration of the“legitimate means of forwarding values of federalism” as discussed in S.S.

There are “differential applications” of the availability ornon-availability of the curative discharge provision by virtue of the discretion afforded the provinces under section 209(2) of the CLA,but as the jurisprudence has repeatedly held, this is differing treatment, as part of the legitimate functioning and balancing in a federalsystem is not in violation of

section 15 of the Charter. The role of

section 718.2(e) [43] Ms. Penunsi asserted that her circumstances are different from decisions such as Turpin and S.S., and even Jackson. As arguedbefore the sentencing judge, Ms. Penunsi asserts that the failure to be afforded the option of seeking a curative sentence violates section15 of the Charter because of the enactment of

section 718.2(

e) under the Criminal Code. [44] I accept that much of the jurisprudence above affirming the validity of differential treatment in the provincial application ofcriminal law pre-dates the increased awareness of the systemic disadvantages suffered by aboriginal persons within the criminal justicesystem. I also take no issue that

section 718.2(

e) tries, in part, to address these systemic issues by requiring the sentencing judge to takeinto account the circumstances of an offender as aboriginal and pursue a restorative approach to sentencing. [45] However,

section 718.2(

e) does not provide a basis to find that the unavailability of the curative provision, results indiscrimination against Ms. Penunsi on the basis of her being aboriginal. This is because

section 718.2(

e) applies only to sanctions that“are available”. Sanctions that are unavailable, whether by virtue of the discretion afforded the province under section 209(2), or forsome other reason, are not within the purview of

section 718.2(e). The language of

Section 718.2(

e) is clear. The decision of R. v. Daybutch, 2015 ONCJ 302 [46] Ms. Penunsi also relied on the reasoning in R. v. Daybutch, 2015 ONCJ 302 for support that her rights under

section 15 wereviolated. I do not find the reasoning in Daybutch persuasive as it fails to consider the legitimate differences in treatment of persons underthe criminal law as part of the administration of criminal law in a federal system. Daybutch was in fact overturned on appeal (2017ONSC 6678); albeit for reasons similar to those for dismissing the application in Andrew and Penashue (In sending the matter inDaybutch back for a new hearing, the appeal judge declined commenting on the merit of the argument except to confirm that there wereimportant issues raised.

Unfortunately a new hearing was never held). [47] In contrast, a recent and thorough examination of the same issue was conducted in R. v. Sabbatis, 2020 ONCJ 242. Like Ms.Penunsi, and the accused in Daybutch, the accused in Sabbatis was aboriginal. In assessing whether the accused’s rights undersection 15were violated, Judge Henschel declined to follow the reasoning in Daybutch; but instead came to the opposite conclusion. The reasoningin Sabbatis is similar to that in Andrew and Penashue, and Jackson.

For example, at paragraph 64 of Sabbatis, Judge Henschel stated: 64 The purpose of the s. 15 equality provisions is to eliminate discriminatory and exclusionary barriers faced by individuals in theenumerated or analogous groups in gaining meaningful access to what is generally available. Curative discharges are not generallyavailable to non-aboriginal offenders in Ontario. They are not available to any offender in Ontario.

The key to assessing whether therehas been a s. 15 violation is the determination of whether the distinction has the effect of perpetuating arbitrary disadvantage on theclaimant because of his or her membership in an enumerated or analogous group. While the non-proclamation of the curative dischargeprovisions may perpetuate a historical disadvantage, the distinction is not drawn based on the applicant’s membership in an enumeratedor analogous group. It is drawn based on province of residence.

Moreover, the further disadvantage is caused because the applicant wascharged in Ontario. [48] I agree with the reasoning in Andrew and Penashue, and Sabbatis. [49] Having accepted that there was no error committed by the sentencing judge in accepting the reasoning in Andrew and Penashue,or holding that section 209(2) of the CLA does not discriminate against Ms. Penunsi under

section 15 of the Charter, there is no errorcommitted by the sentencing judge in dismissing the application.

CONCLUSION [ 50 ] There was no error committed by the sentencing judge assessing the application on a preliminary basis. There was no error in relying on the reasoning of Judge Trahey in Andrew and Penashue on the basis that the reasoning was obiter. Finally, the sentencing judge was correct to find that the application under

section 15 of the Charter could not succeed. As per the reasoning in Jackson , and Andrew and Penashue , and subsequent decisions, the application was without merit. There is no basis to find that the discretion of the Province, as permitted by section 209(2) of the CLA , namely whether to enact the curative provision under the Criminal Code , violates the Appellant’s right to not be discriminated against under

section 15 , on the basis of her being an aboriginal person. [ 51 ] The Appeal from sentence is dismissed. The stay of the Appellant’s sentence is set aside, and a Warrant of Committal shall issue to remand the Appellant into custody to complete the remainder of her sentence. The Appellant will have 48 hours as to the issuance of this judgement to surrender herself into custody at the police detachment nearest to her current place of residence. _____________________________ Frances J. Knickle Justice