R. v. Jackson-Bullshields Date:, 2015 BCPC 414

Citation: R. v. Jackson-Bullshields Date: 20151130 2015 BCPC 0414 File No: 233263-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILBERT LUKE JACKSON-BULLSHIELDS EXCERPTS FROM PROCEEDINGS RULING #2 OF THE HONOURABLE JUDGE F. HOWARD RE

SECTION 1 OF THE CHARTER OF RIGHTS AND S. 5(3)(a)(i)(

C) OF THE CONTROLLED DRUGS AND SUBSTANCES ACT Counsel for the Crown: S. Gerrie

Counsel for the Defendant: P. Smith-Gander Place of Hearing: Vancouver, B.C. Date of Hearing: November 30, 2015 Date of Judgment: November 30, 2015 [1] THE COURT: This matter is for decision today in relation to the argument raised under s. 1 of the Charter of Rights. [2] On November 23, 2015, I concluded that s. 5(3)(a)(i)(

C) of the Controlled Drugs and Substances Act is inconsistent with s. 12of the Charter of Rights to the extent that this provision requires the court to impose a mandatory minimum sentence of one yearimprisonment upon any offender who ‘carries a weapon’ in committing a trafficking offence involving a

Schedule I substance. [3] The mandatory minimum one-year jail sentence was found to be cruel and unusual punishment within the meaning of s. 12 ofthe Charter: see Ruling #1(R. v. Jackson-Bullshields, 2015 BCPC 411 , 2015 BCPC 0411) on the

Section 12 Charterapplication dated November 23, 2015. [4] In accordance with s. 52(1) of the Constitution, any law that is inconsistent with the provisions of the Constitution, in this cases. 12 of the Charter of Rights, is, to the extent of the inconsistency, of no force or effect unless the court finds under s. 1 of the Charterthat the provision is a reasonable limit that is demonstrably justified in a free and democratic society.

THE LAW [5] There have been a number of recent decisions dealing with the application of s. 1 of the Charter to sentencing provisions in theCriminal Code and/or the Controlled Drugs and Substances Act that were found to be inconsistent with s. 12 of the Charter of Rights. The guiding authority is the decision of the Supreme Court of Canada in R. v. Nur, 2015 SCC 15. There are additional decisions,including the pre-Nur decisions of Bahen J. in R. v. Sheck, February 24, 2014, Surrey Provincial Court, Registry #185633-2-C (BCPC)and Greyell in R. v. Holt, [2015] B.C.J. No. 127 (BCSC).

After Nur, supra, there are the decisions of R. v. Dickey, [2015] B.C.J. No.766 (BCSC), and R. v. Barinecutt, 2015 BCPC 0269 (BCPC). In none of these decisions was the offending mandatory sentencingprovision saved under s. 1 of the Charter. [6] In Nur, supra, the court found that the mandatory minimum jail sentences required by s. 95(2)(

a) of the Criminal Code wereinconsistent with s. 12 of the Charter of Rights. The underlying offence consisted of possession of a loaded prohibited firearm orrestricted firearm, or an unloaded prohibited firearm or restricted firearm, together with readily-accessible ammunition that is capable ofbeing discharged in the firearm, without proper authorization or a licence or registration certificate. The mandatory minimum jailsentence was three years for a first offence and five years for a second offence. [7] The court went on to consider whether the breach of s. 12 of the Charter could be justified under s. 1.

The test to be appliedduring a s. 1 analysis is set out in R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, and Nur, supra, at paragraph 111. Toparaphrase, in order to justify an infringement of s. 12 of the Charter, the state must show that: (

a) the offending statutory provision has a pressing and substantial objective; and (

b) that the means chosen are proportional to that objective. A law is ‘proportionate’ if: (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law. [8] Speaking for the majority in Nur, supra, McLachlin observed at para. 111: 111 . . . It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12is proportionate as between the deleterious and salutary effects of the law under s. 1. ANALYSIS (

a) Does s. 5(3)(a)(i)(

C) of the CDSA address a pressing and substantial objective? [9] Section 10(1) of the CDSA sets out the fundamental purpose of any sentence imposed under this Act, that being: . . . to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [10] The association between violence and the illegal drug trade is well known. Such violence is a significant obstacle to the

creation of a just, peaceful, and safe society. The objective of s. 5(3)(a)(i)(

C) is to minimize the risk of violence that may arise whenpersons engaged in drug trafficking offences "carry, use, or threaten to use a weapon” when committing such offences. The expectationis that the mandatory minimum sentence of one year in prison will serve to denounce and to deter drug traffickers from carrying or usingweapons when engaged in drug trafficking activities. [11] I am satisfied that s. 5(3)(a)(i)(

C) does address a pressing and substantial objective. (

b) Are the means chosen proportional to that objective?

(1) Rational connection [12] On the rational connection branch of the test, the court in Nur, supra, noted at paragraph 112: 112 The state bears the burden of showing that the mandatory minimum sentences of imprisonment found to violate s. 12 of theCharter are rationally connected to the goals of denunciation, deterrence, and retribution. To do so, the government must establish thatthere is a causal connection between the infringement and the benefit sought "on the basis of reason or logic": RJR-MacDonald Inc. v.Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, at para. 153.

Viewed thus, are the means the law adopts arational way for Parliament to pursue its objective? [13] In Nur, supra, McLachlin C.J. concluded that the government had failed to establish that mandatory minimum terms ofimprisonment act as a deterrent against gun-related crimes. However, she was satisfied that a rational connection did exist betweenmandatory minimum terms of imprisonment and the goals of denunciation and retribution.

Accordingly, the rational connection test wasmet: see paras. 113 to 115. [14] The above observations in Nur are directly applicable to the mandatory minimum term of imprisonment contained in s. 5(3)(a)(i)(

C) of the CDSA. Accordingly, I am prepared to find that there is at least some degree of rationality between the mandatory minimumone-year jail sentence required by this statutory provision and the objectives of denunciation and retribution. The rationality requirementof the s. 1 test is met.

(2) Minimal impairment [15] Here the questions are: Is the limit on the right to be secure from cruel or unusual punishment reasonably tailored to theobjective? Are there less harmful means of achieving the legislative goal? [16] The burden on the Crown at this point is described in these terms by McLachlin C.J. in Nur, supra, at 116: 116 . . . The government must show the absence of less drastic means of achieving the objective "in a real and substantial manner"(ibid, at para. 55). The impingement on the Charter right must be no more than what is reasonably necessary to achieve the state'sobjective. [17] The difficulty with s. 5(3)(a)(i)(

C) of the CDSA is that it captures first-time offenders whose crimes are minor in the extremeand whose moral culpability sits at the very bottom of the scale. Here one must keep in mind the very broad definition of trafficking ins. 2 of the CDSA. Trafficking is not limited to selling. It includes activities such as administering, giving, and transporting. Moreover,the quantity of the substance being trafficked is irrelevant in determining whether the offence has been committed.

Thus, an addict whoassists his friend by inserting the needle into her vein and injecting a partial dose of heroin before putting the rest of the heroin into hisown arm commits the offence of trafficking by virtue of his having administered the drug in this fashion, yet he is by no means a drugdealer as we generally understand that term. [18] At the same time, the term "weapon" as used in s. 5(3)(a)(i)(

C) is not limited to concealed weapons or weapons carried for apurpose dangerous to the public peace. It includes weapons that are carried openly for lawful purposes. It includes weapons capable ofdoing serious bodily harm — knives, firearms, brass knuckles — and weapons that might at best cause temporary discomfort — bearspray, a cane, hairspray, a set of keys clutched in one's fist, a hat pin: see R. v.

Sullen (1983), (BC CA), 2 C.C.C. (3d)68 (BCCA) at para. 10. [19] Finally, the mere carrying of a weapon in committing a drug trafficking offence is sufficient to attract the minimum jail sentenceunder s. 5(3)(a)(i)(C). No overt action involving the weapon is required. It seems clear that this sentencing provision is designed toaddress circumstances that involve a plausible risk that a weapon may be resorted to during the drug transaction.

However, the provisionis so broad that it also encompasses circumstances wherein the presence of the weapon does not give rise to any realistic or plausible riskthat it might be resorted to during the activity that amounts to trafficking. [20] The result is that the mandatory minimum sentence of one year imprisonment required by this

section can lead to a sentence thatis grossly disproportionate to the punishment that is appropriate, having regard to the nature of certain offences and the circumstances ofcertain offenders. [21] To recount my findings in Ruling #1: Scenario 1 A homeless addict suffering from multiple and longstanding mental health issues lives on the very dangerous streets in the DowntownEastside of Vancouver. She agrees to sell a small chip of rock cocaine that she possesses for her own use to her friend for $5.

At thetime of committing this offence, she is carrying a small pipe on her shopping basket for the purpose of protecting herself and herbelongings. In the circumstances, there appears to be little risk that she might resort to using the pipe during this transaction with herfriend. This offender has no prior criminal record for drug-related offences; she is an addict; she is not a drug dealer by trade. She has

never been to jail. She is subject to the mandatory one-year jail sentence in circumstances where the gravity of her offence is so low and her personal circumstances are so challenging that, absent the mandatory minimum, the sanction imposed by the court would likely be a suspended sentence plus probation. Scenario 2 A young woman with no criminal record or prior contact with the police gives a friend one of her oxycodone pills while walking across the UBC campus late at night, while she has a can of bear spray clipped to her belt for self-protection.

She is in lawful possession of the oxycodone for which she has a prescription. She is in lawful possession of the weapon: see R. v. Sulland . Her moral culpability is minimal. Her offence consists of giving one of her prescription pills to a friend. She is not allowed to do that. Her actions amount to trafficking under the CDSA . Given all the circumstances, the risk that this offender might resort to her bear spray as she gives her friend one of her prescription pills is zero.

The likely sentence for this first-time offender, absent the mandatory minimum jail sentence, would be a nominal fine or a brief probationary term.

In fact, the circumstances surrounding the commission of this offence would undoubtedly attract a conditional or absolute discharge were it not for the fact that such a disposition is not available given that the maximum sentence for the offence of trafficking is life imprisonment. [ 22 ] In Ruling #1, I found that the mandatory minimum term of one-year imprisonment in each of the above situations was grossly disproportionate for the offence and the offender, and that such a sentence would be so excessive as to outrage society's sense of decency.

Given this finding, I am unable to conclude that this mandatory minimum one-year sentence was but a ‘minimal impairment’ of an offender's s. 12 right to be protected from cruel and unusual punishment. [ 23 ] In my view, s. 5(3)(a)(i)(

C) of the CDSA is not "reasonably tailored" to the objective of deterring and denouncing the risk of violence that is associated with weapons in drug trafficking because it, (1) captures not only the true drug dealer, but those who are not drug dealers by trade, and (2) it mandates that the mere carrying of a weapon in committing a drug offence is an aggravating circumstance worthy of a one-year jail sentence, even when, on the facts of the case, the presence of a weapon is unrelated to the offence and carries with it no risk of violence during the commission of the offence. [ 24 ] As to whether there are less harmful means of achieving the sentencing objectives of denunciation and retribution, I am satisfied that those means already exist in the CDSA . [ 25 ] I begin by noting that those situations wherein the use of violence or the risk of violence is unequivocal is expressly covered by the balance of s. 5(3)(a)(i)(C), which imposes a mandatory one-year jail sentence on those who used or threatened to use a weapon in committing the drug trafficking offence.

No issue was raised in this case with respect to these aspects of the provision. In fact, even without s. 5(3)(a)(i)(C), it is difficult to imagine a situation wherein the sentence would not be at least one year imprisonment if the offender used or threatened to use a weapon while engaging in even a minor drug trafficking offence. [ 26 ] As for those situations that involve the mere carrying of a weapon during a drug transaction, I refer to s. 10(2)(a)(

i) of the CDSA which is as follows: 10(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person (

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon... [ 27 ] Section 10(2)(a)(

i) requires the court to consider the carrying of a weapon during the commission of the offence as an aggravating circumstance. Section 10(3) requires the court to give reasons if it is of the view that there should be no jail sentence in a case where the offender did carry a weapon when committing a drug trafficking offence. These provisions allow the court to consider the extent to which the weapon played a role, if any, in the commission of the offence.

The court can increase the length of a jail sentence in a circumstance where the presence of the weapon plays a significant role in increasing the risk of violence during the commission of the offence, as in the case of the accused before me. In circumstances where the presence of the weapon creates little or no risk of violence erupting during the commission of the offence, the court can attach little weight or no weight to this factor. [ 28 ] Under s. 10(2)(a)(

i) of the CDSA , the court can also take into account the nature of the weapon (a knife vs. a can of hairspray), in assessing the degree of risk of harm that might actually exist as the offence was committed. [ 29 ] In my view, ss. 10(2) and (3) together create an alternate and more rationale statutory scheme that is well-tailored to addressing the legislative concerns regarding the ‘carrying’ of a weapon in the commission of a drug trafficking offence.

Its rationality lies in allowing for the imposition of a sentence that is proportionate to the gravity of the offence and the moral culpability of the offender, especially as it relates to the aggravating circumstance involving the carrying of a weapon. [ 30 ] In contrast, s. 5(3)(a)(i)(

C) can lead to the imposition of a grossly disproportionate sentence in situations where the risk of harm arising from the presence of a weapon is low to non-existent. [ 31 ] In my view, the state has failed to demonstrate that the offending provision minimally impairs the s. 12 right to be free from cruel and unusual punishment. It has not discharged its burden of showing the absence of less drastic means of achieving the objective of the sentencing provision.

(3) Is there proportionality between the deleterious and salutary effects of the law? [ 32 ] In her conclusion on this aspect of the s. 1 analysis, McLachlin C.J. explained the nature of the inquiry in Nur , supra, at para. 118 :

118 This stage of the analysis weighs the impact of the law on protected rights against the beneficial effect of the law in terms of the greater public good. In light of the conclusion that the mandatory minimum terms of imprisonment in s. 95 when the Crown proceeds by indictment are grossly disproportionate, I do not find that the limits are a proportionate justification under s. 1 . [ 33 ] In the present case, I am also unable to conclude that there is proportionality between the deleterious effects of the law and its salutary effects. [ 34 ] The deleterious effects of the offending portions of s. 5(3)(a)(i)(

C) are threefold: firstly, the mandatory nature of the prison sentence can deprive the court of the ability to impose a proportionate and just sanction, especially in those cases where the offences are minor and/or the particular circumstances of the offender are uniquely compelling. This can result in the imposition of unjust sentences in some circumstances. Secondly, it is the individual offenders who will have to endure the grossly disproportionate and unjust sentences that may flow from the legislation.

Thirdly, there is a very real risk that the imposition of a cruel and unusual sentence which, by definition, is one that is so excessive as to outrage our society's sense of decency, will undermine the respect that the community has for the law, the government that makes the law, and the courts that impose the law. [ 35 ] As to the salutary effects of this legislation, I am of the view that such effects would be minimal at best.

For example, it is difficult to discern how the imposition of a grossly disproportionate one-year jail sentence in the case of the UBC student who gives her friend one of her oxycodone pills while carrying bear spray for self-protection would in any way advance the legislative objectives of this sentencing provision.

At the same time, the existing provisions of s. 10(2) and (3) of the CDSA , which define the ‘carrying’ of a weapon in committing a drug trafficking offence as an aggravating circumstance, are more than adequate to allow the court to impose a sentence that addresses the goals of denunciation, and retribution. Any beneficial effects sought to be achieved by s. 5(3)(a)(i)(

C) of the CDSA can be achieved through subsections 10(2) and (3) without running the risk of requiring the imposition of an unjust sentence in certain cases. [ 36 ] In my view, the state has failed to establish proportionality between the deleterious and salutary effects of this sentencing provision. CONCLUSION [ 37 ] I have found that s. 5(3)(a)(i)(

C) of the CDSA is inconsistent with s. 12 of the Charter . The state has failed to establish that the provision is nonetheless justified under s. 1 of the s Charter . Pursuant to s. 52(1) of the Constitution , this provision is of no force and effect and cannot be applied to the accused before me. (RULING CONCLUDED)