Her Majesty the Queen - v. -, 2015 SKPC 099

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 099 Date: July 15, 2015 Information: 24484253 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marvin Obey Appearing: Theodore Litowski For the Crown Andrew Hitchcock For the Accused DECISION ON CHARTER CHALLENGE B. TOMKINS, J [ 1 ] On July 18, 2013, Mr. Obey was convicted of assault with a weapon contrary to

section 267 (

a) of the Criminal Code . Upon conviction, the Crown commenced proceedings pursuant to

Part XXIV of the Criminal Code to have Mr. Obey designated a dangerous offender. [ 2 ] This Court, by decision dated January 29, 2014, determined that Mr. Obey's offence was a serious personal injury offence for purposes of

Part XXIV. Consequently, an assessment was ordered and provided by Dr. R. H. Holden, pursuant to

section 752.1. [ 3 ] Upon receipt of Dr. Holden's report, the hearing resumed on November 25, 2014 for the Court's determination whether Mr. Obey will be designated a dangerous offender, a long-term offender or neither and the imposition of an appropriate sentence, depending on the designation decision. In this regard, the Court received the evidence of ten witnesses, including Dr. Holden for the Crown and Dr. Nicholaichuk for the Defence.

[ 4 ] Pending written argument, Mr. Obey filed Charter Notice arguing that:

Section 753 of the Criminal Code , as amended in 2008, is invalid and inoperable as contrary to sections 7 and 12 of the Charter ;

Section 753.01 of the Criminal Code , as amended in 2008, when applied in conjunction with

section 753 , is invalid and inoperable as contrary to sections 7 and 12 of the Charter ; and 3. The mandatory word "shall" in

section 753 of the Criminal Code , as amended in 2008, should be struck and the permissive word "may" should be substituted in order to achieve compliance with sections 7 and 12 of the Charter . [ 5 ] I received extensive written argument from both parties on these constitutional issues, supplemented by oral argument. This is my decision on the application. INTRODUCTION [ 6 ] In order to properly understand Mr. Obey's argument, it is necessary to understand the provisions of

Part XXIV and their evolution over time. The history of what is now

Part XXIV has been set out well in a number of decisions [1] preceding this and I will borrow heavily from those in the overview below. [ 7 ] The current dangerous offender provisions are based in Criminal Code provisions that took effect in 1977 as then

Part XXI of the Criminal Code . These were amended in 1997 and 2008. [ 8 ] The process in 1977 involved two stages: a designation stage, at which the Court determined whether or not the offender should be designated as "dangerous" and a penalty stage, where the Court determined an appropriate penalty for the offender.

The Court had discretion in its decisions for both stages. [ 9 ] In amendments made in 1997, the Court's discretion in the designation stage was retained but its discretion in the penalty stage was removed; if an offender was determined to be a dangerous offender, an indeterminate sentence would inevitably follow. As the Supreme Court of Canada held in R v Johnson , [2] the regime essentially became a one-stage process as the determination that an offender was dangerous determined the penalty.

The 1997 amendments also introduced the long-term offender designation and the long- term supervision order. [ 10 ] The provisions were further and significantly amended in 2008 in what is now

Part XXIV of the Criminal Code . The Court's discretion at the designation stage was removed entirely in that an offender, under the current provisions, must be designated as dangerous if the criteria in section 753(1) are met. The Court's discretion in the penalty stage, however, was expanded in that, even upon a finding that an offender is a dangerous offender, the Court can impose an indeterminate sentence or a determinate sentence with or without a long-term supervision order. [ 11 ] The 2008 amendments also added

section 753.01 which provides that in the event a person who has been designated as dangerous is subsequently convicted of a serious personal injury offence or of breaching a long-term supervision order, the penalty stage can be re-engaged. That is, upon application by the Crown, a new assessment can be obtained and the offender may be sentenced to an indeterminate term of incarceration or to a definite term with or without the imposition of a long-term supervision order. [ 12 ] If an offender comes before the Court for sentencing and the Crown does not apply for the imposition of sentence pursuant to

section 753.01 , sentencing will take place in the usual manner and the usual range of sentences will be available in accordance with the provisions of

section 753.4 which designate breach of a long-term offender order as an indictable offence punishable by a maximum of ten years in custody. DEFENCE POSITION [ 13 ] Mr. Obey advanced three arguments that the current provisions of

Part XXIV are contrary to

section 7 of the Charter in that they are overbroad and disproportionate. In particular, he argues that it is not section 753(1) alone that leads to this conclusion but its impact when combined with the provisions of

section 753.01 . In his written submissions, Mr. Obey explained that "Both sections must be considered together because the effect that they have on the Applicant only arises through their conjunctive application." [ 14 ] The parts of those sections relevant to Mr. Obey's arguments read as follows: 753.

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2) , the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural

restraint[.]

(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(

a) or ( b ), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (

c) impose a sentence for the offence for which the offender has been convicted.

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(

b) or (

c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. 753.01

(1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1) , on application by the prosecutor, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under subsection (4).

(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.

(4) After the report is filed, the prosecutor may apply for a sentence of detention in a penitentiary for an indeterminate period, or for an order that the offender be subject to a new period of long-term supervision in addition to any other sentence that may be imposed for the offence.

(5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

(6) If the application is for a new period of long-term supervision, the court shall order that the offender be subject to a new period of long-term supervision in addition to a sentence for the offence for which they have been convicted unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that the sentence alone will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. [ 15 ] Thus, when the Crown applies pursuant to section 753(1) to have an offender designated as dangerous, the prerequisites that must be proven are that he or she committed a serious personal injury offence and that the offender constitutes a threat to the life, safety or the physical or mental well-being of other persons by reason of a pattern of repetitive or aggressive behaviour or brutal behaviour as those terms are further expanded in the section.

Upon proof of those prerequisites, the Court "shall" designate the offender as a dangerous offender. The designation attracts a special sentencing regime and the offender will be sentenced to an indeterminate sentence, or to a determinate sentence with or without a long-term supervision order. [ 16 ] In accordance with

section 753.01 , if a person who has been designated to be a dangerous offender is subsequently convicted of a serious personal injury offence or breach of a long-term supervision order, a process parallel to the initial designation process will be undertaken upon application of the Crown and the offender may then, in accordance with subsections (5) and (6), be sentenced to an indeterminate period of detention or to a new period of long-term supervision. [ 17 ] However, that parallel process will not include consideration of or "re-determination" of dangerousness as the initial designation will continue to attach for the life of the offender. [ 18 ] Thus, Mr.

Obey says, the designation of an offender as dangerous exposes him to the consequences in

section 753.01. It is therefore the combined effect of these provisions that Mr. Obey has challenged. 1. Present Risk

[ 19 ] When considering the constitutionality of the 1977 dangerous offender provisions in R v Lyons , [3] the Supreme Court of Canada upheld the provisions as lawful. Mr. Lyons argued that the Part was contrary to

section 7 of the Charter because it punished an offender for crimes that he had not yet committed and might never commit or for crimes for which he had already been punished. This, he said, was contrary to the principles of fundamental justice. The Court did not accept this argument and said: . . . Preventative detention in the context of

Part XXI, however, simply represents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated in the circumstances of the individual case, and that of prevention, correspondingly increased.

Part XXI merely enables the court to accommodate its sentence to the common sense reality that the present condition of the offender is such that he or she is not inhibited by normal standards of behaviour restraint so that future violent acts can quite confidently be expected of that person. In such circumstances it would be folly not to tailor the sentence accordingly. ( Emphasis in the original .) [4] [ 20 ] Thus, Mr. Justice La Forest upheld the 1997 provisions in the face of a

section 7 Charter challenge on the basis that they required an assessment of the offender's present risk of future offending conduct. However, Mr. Obey noted, the current provisions do not maintain that distinction. Instead, the provisions of

section 753.01 expose an offender who has initially been designated as dangerous to the sentencing alternatives of the dangerous offender regime without consideration of the risk he presents at the time of sentencing under

section 753.01 . Instead, the sentencing process under that

section is premised on the earlier finding of dangerousness. [ 21 ] That is, the provisions of

section 753.01 essentially repeat the process followed when the Crown initially applied for a dangerous offender designation but with one significant difference: the subsequent proceedings start from the irrefutable premise [5] that the offender is a dangerous offender and are therefore premised on a conclusion reached in proceedings that likely occurred years or even decades earlier.

This is so irrespective of the fact that an offender might have fully and successfully served the sentence imposed or that he or she may have received treatment or been otherwise rehabilitated in the interim. [ 22 ] The fact of dangerousness is an aggravating factor going to penalty and, on application pursuant to section 753(1), the Crown is properly required to prove aggravating factors beyond a reasonable doubt. Yet, pursuant to

section 753.01, the Crown is wholly relieved of this burden since dangerousness will be irrefutably assumed. This is so notwithstanding the fact that the risk the offender presents at the time of sentencing for his or her subsequent offence may be different than the risk he presented at the time of his initial designation. [ 23 ] Thus, Mr. Obey argued, under

section 753.01, the Crown is improperly relieved of the need to prove the aggravating factor and there is no assessment of present risk . As the assessment of an offender's present risk was critical to the Supreme Court's decision upholding the 1997 provisions in Lyons , its absence in the current provisions is fatal in the face of

section 7 of the Charter . 2. Overbreadth [ 24 ] Lyons also upheld the 1977 provisions against a challenge that they authorize cruel and unusual punishment contrary to

section 12 of the Charter . In this respect, the Court said: First, the legislation applies only to persons convicted of a "serious personal injury offence" as defined in s. 687. These offences all relate to conduct tending to cause severe physical danger or severe psychological injury to other persons. Significantly, the maximum penalty for all these offences must be at least ten years' imprisonment.

Secondly, it must be established to the satisfaction of the court that the offence for which the person has been convicted is not an isolated occurrence, but part of a pattern of behaviour which has involved violence, aggressive or brutal conduct, or a failure to control sexual impulses. Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the

section seeks to protect, namely, conduct endangering the life, safety or physical well-being of others or, in the case of sexual offences, conduct causing injury, pain or other evil to other persons. Also explicit in one form or another in each subparagraph of s. 687 is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable. Finally, the court has the discretion not to designate the offender as dangerous or to impose an indeterminate sentence, even in circumstances where all of these criteria are met. [6] [ 25 ] Mr. Obey argued that

section 753.01 fails to meet these criteria and in the result, the

section offends

section 7 of the Charter in that its reach is greater than necessary to achieve its purposes and objectives. [ 26 ] The criteria quoted indicate the need to establish that the impugned behaviour is part of a pattern, that it is behaviour that is likely to be continued and that it is substantially intractable. If these are essential to the initial determination of dangerousness for purposes of

section 12 of the Charter , it follows that they are essential to the imposition of preventative imprisonment pursuant to

section 753.01. [ 27 ] Yet

section 753.01, Mr. Obey submitted, can be applied even when any or all of these criteria are not present. Take the hypothetical set out in R v Boutilier , [7] a case from the British Columbia Supreme Court: A young man in his early 20s commits a robbery. He has earlier been convicted of another robbery. These are serious personal injury offences and establish a pattern so the criteria under section 753(1) are met. The sentencing judge is required to find the young man to be a dangerous offender and he is so designated.

Because the Court is satisfied that the young man and his behaviour are amenable to treatment, he is sentenced to a determinate custodial term with a period of long-term supervision. Treatment is effective and the young man completes his sentence without incident and lives a law-abiding life for decades thereafter. However, the now middle-aged man is charged with dangerous driving in circumstances that render it a serious personal injury offence. [ 28 ] By operation of

Part XXIV, the man retains his dangerous offender designation for life and so

section 753.01 can be applied to his new offence. Thus, he is exposed for his new offence to an indeterminate sentence or a further long-term offender order. This will be so despite the fact that the new offence is not part of the pattern of conduct that led to his initial designation and is not part of any

pattern of offending. It is so despite the fact that there may be no evidence such offending is likely to continue or that the behaviour is intractable. [ 29 ] In these circumstances, Mr. Obey submitted, the sentences required under

section 753.01 are disproportionate to the offence and the offender. The

section will catch conduct and offenders who do not demonstrate the kind of risk that

Part XXIV was intended to address; that is, an offender may be sentenced as a dangerous offender even if they are not presently dangerous or in fact dangerous. In this manner, it is overbroad. [ 30 ] Mr. Obey argued that it is the designation under section 753(1) that exposes an offender to this consequence and that the two sections in their combined operation are, therefore, overbroad. 3.

Disproportionality [ 31 ] In the quoted portion of Lyons in paragraph 24 above, the Supreme Court held, inter alia , that the dangerous offender provisions relied for Charter compliance on the fact that they would come into play only in the event that an offender had committed a serious personal injury offence. In that circumstance, the Court concluded, the imposition of an indeterminate sentence was neither cruel nor unusual. [ 32 ] However,

section 753.01 brings the dangerous offender regime and its sentencing provisions into play not just in the event that the offender subsequently commits a serious personal injury offence, but also if he or she breaches the conditions of a long-term supervision order. [ 33 ] Breach of a long-term supervision order might lie in something as minimally serious and non-violent as missing curfew or an appointment with the offender's supervisor. As such, a dangerous offender designation imports, by consequent exposure to

section 753.01, the possibility of an indeterminate sentence or long-term supervision for an offence which is not a serious personal injury offence and which may not involve violence at any level. [ 34 ] Lyons found that the dangerous offender provisions did not contravene the Charter right against cruel and unusual punishment on the basis that an indeterminate sentence could not be imposed except upon the commission of a serious personal injury offence. Mr. Obey argued that

section 753.01 is exposed to challenge because it can. [ 35 ] Again, Mr. Obey argued that an offender's initial designation pursuant to section 753(1) that triggers application of the provisions of

section 753.01 and that their combined effect contravenes the Charter as disproportionate. 4.

Summary [ 36 ] In regard to each of his arguments, Mr. Obey argued that, since the designation of an offender as dangerous is life-long and not subject to review irrespective of future treatment, rehabilitation or behaviour, such designation necessarily exposes an offender to

section 753.01 for his or her entire future. Therefore, he says, the two - sections 753(1) and 753.01 - are inextricably connected and are, in their combined effect, contrary to sections 7 and 12 of the Charter . CROWN RESPONSE [ 37 ] In response, the Crown submitted that Mr. Obey's Charter application is premature and, in these circumstances, beyond the jurisdiction of the Provincial Court. The Crown said that, while Mr. Obey purports to challenge the combined effect of sections 753(1) and 753.01, his arguments relate entirely to the operation of

section 753.01. It is, the Crown argued, actually that

section that Mr. Obey has challenged. [ 38 ] As Mr. Obey has not been alleged to have committed any offence which might bring him within the purview of

section 753.01, that

section is not at issue in these proceedings. In order for

section 753.01 to apply to Mr. Obey, it is necessary first, that he is designated as dangerous pursuant to section 753(1) and that he is sentenced to a determinate sentence with or without a long-term supervision order. Even so,

section 753.01 does not come into play unless Mr. Obey subsequently commits a serious personal injury offence or breaches the terms of his long-term supervision order. Even then,

section 753.01 will not be before the Court unless the Crown applies for sentence under one of its provisions. [ 39 ] None of these events have yet occurred and, in the Crown's words, Mr. Obey's application is "constructed on an entirely hypothetical basis" and will, in fact, be moot if I do not designate him a dangerous offender or if I impose an indeterminate sentence or if he does not re-offend. The Crown argued that this Court should not entertain hypothetical constitutional challenges. [ 40 ] Second, the Crown said that if it is correct that the matter is hypothetical before me, Mr. Obey is essentially applying for a declaratory judgment as to the validity of

section 753.01 and the power to make declaratory judgments lies only with the Superior Courts. The Provincial Court of Saskatchewan, being a statutory court, does not have jurisdiction to give a declaratory remedy. [ 41 ] Finally, the Crown argued that if the Court is prepared to entertain Mr. Obey's application notwithstanding its arguments as to jurisdiction, it is not appropriate to address sections 753(1) and 753.01 in conjunction with each other as Mr. Obey has argued and, alternatively, that,

section 753.01 does not violate

section 7 of the Charter . [ 42 ] In the latter regard, the Crown takes the position that the 2008 amendments, while rendering the dangerousness designation mandatory for those who meet the statutory criteria, have given the Court an appropriate discretion in determining a fit sentence. While other options for process or criteria may have been available, the 2008 amendments are not overbroad only because other means might have achieved Parliament's objective differently or more narrowly or both.

[ 43 ]

Section 753.01 in particular, is restricted to those who have been designated dangerous and who have therefore been determined to represent a significant threat to public safety. The designation was imposed after evidence beyond a reasonable doubt was provided and

section 753.01 does nothing more than provide the Court the ability to manage offenders who have failed to respond to treatment and/or supervision. [ 44 ] Nothing in

section 753.01 requires a Court to impose a sentence of indeterminate duration or a long-term supervision order for any offence, irrespective of its seriousness or nature; the Court at that sentencing has the same discretion and the same range of sentences, including a determinate sentence without long-term supervision, as it had at the time of the original designation. Thus,

section 753.01 retains the ability to impose a sentence that is fit for the offence and the offender before it at that time. The Crown suggests that Mr. Obey has "undervalued" this discretion. [ 45 ] Therefore, the

section does not violate the Charter . DEFENCE RESPONSE IN REGARD TO JURISDICTION [ 46 ] Mr. Obey took the position that his application is properly before me.

Section 52 of the Constitution Act, 1982 provides that no person can be convicted of an offence under an unconstitutional law and that a challenge to the allegedly unconstitutional law can be brought without the applicant showing a specific right. [ 47 ] Further, he argues that Mr. Obey has personal standing to challenge the combined effect of sections 753(1) and 753.01 because he is now in the sentencing stage of

Part XXIV proceedings, having been previously found guilty of a serious personal injury offence. Both sections are properly before this Court because the entire sentencing scheme is thereby before the Court. That being the case and it being the sentencing process that exposes Mr. Obey to the challenged aspects of

section 753.01, this Court has jurisdiction to entertain his arguments and provide a remedy. ANALYSIS [ 48 ] I will commence my analysis with the jurisdictional questions. 1. Is the application hypothetical? If it is, should the Court nonetheless consider the Charter challenge at this point in the proceedings? [ 49 ] It is clear that Mr. Obey is correct that my designating him a dangerous offender under section 753(1) would potentially expose him to the risk of facing the consequences of

section 753.01 in the future and that this potential would hang over him for life. It is also clear that his actual exposure to those consequences is dependent on a number of considerations, none of which have yet occurred. These are: 1. That I designate Mr. Obey to be a dangerous offender; 2. That I impose a determinate sentence, with or without a long-term offender order; 3. That Mr. Obey in future commits a serious personal injury offence or a breach of his long-term offender order; and 4. That the Crown makes application for him to be sentenced pursuant to

section 753.01, rather than in the usual manner of sentencing. [ 50 ] Therefore,

section 753.01 does not directly apply to Mr. Obey's circumstances now and may never apply to him. But it might. I do not accept Mr. Obey's assertion that it is the application to designate and not the designation itself that creates the risk. But I do accept that it is the designation of the offender as dangerous - a matter that is live before me - that triggers the risk. I accept that in this manner, sections 753(1) and 753.01 are related. [ 51 ] However, Mr.

Obey's application in this case is comparable to a case where a person is charged with an offence for which there is a minimum punishment for second and subsequent offences and who challenges those second and subsequent penalties before he or she has been found guilty of a first offence. In the latter case, conviction for the offence for the first time will expose the person to the risk of incurring the statutory minimum punishment for second and subsequent offences, just as a designation under section 753(1) would expose Mr. Obey to the risk of incurring punishment pursuant to

section 753.01. I have not been provided and have not located authority wherein any Court decided an application of that nature. [ 52 ] There is good reason why courts have declined, or generally declined, to consider and decide hypothetical Charter applications. In Hy and Zel's Inc. v Ontario (A.G.) , [8] Mr. Justice Major quoted the following from the Supreme Court's decision in MacKay v Manitoba : Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions.

The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel. [9] Later in the decision, quoting initially from Danson v Ontario (Attorney General) , he wrote:

". . . the failure of a diffuse challenge could prejudice subsequent challenges to the impugned rules by parties with specific and factually established complaints." This mirrors the Court's vigilance in ensuring that it hears the arguments of the parties most directly affected by a matter. In the absence of facts specific to the appellants, both the Court's ability to ensure that it hears from those most directly affected and that Charter issues are decided in a proper factual context are compromised. [10] [ 53 ] Against this, Mr. Obey argued the case of R v Big M Drug Mart Ltd . [11] In that case, the Supreme Court of Canada held that:

Section 52 sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to be drawn from this principle is that no one can be convicted of an offence under an unconstitutional law. . . . Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with

section 2(

a) of the Charter and by reason of s. 52 of the Constitution Act, 1982 , it is of no force or effect. And later: A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(

a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue. [ 54 ] Given this, Mr. Obey said, a Charter challenge is rooted in

section 52 of the Constitution and can be challenged by any person charged under that law. [ 55 ] In my view, this

interpretation misapprehends the intention of the Court in the quoted reasons. In the quoted portion above and in the course of the decision, the Court referred to persons charged under the law. In this case, Mr. Obey was charged under

section 267 and faces sentence under

section 753 . He does not face sentence under

section 753.01. If Mr. Obey's argument was accepted and taken to extremes, a person charged with any offence could challenge any provision of the Criminal Code as a "law" which is unconstitutional on the basis of a Charter violation in any of its provisions. The quotation must be read to mean that a person charged under a law can challenge that specific law as unconstitutional. [ 56 ] Further, the reference in the second quoted paragraph, to the status of the accused is specific to the fact situation in Big M Drug Mart . That case involved a challenge to Sunday business closure laws.

The Court's intention was to indicate that the religion of the person challenging the law was irrelevant. Therefore, Big M Drug Mart could challenge the constitutionality of the law as breaching religious freedom despite the fact that, being a corporation, it could not hold any religious belief that could be violated. [ 57 ] Neither am I persuaded by the case of R v Glad Day Bookshops Inc. [12] In that case, the appellant was charged with distributing a film that had not been approved by the province's film censoring board.

In the course of its defence, the appellant argued that certain provisions of the Act in question violated the right of freedom of expression. The respondent argued that, since Glad Day Bookshops had not submitted the film for approval, it could not challenge provisions of the Act regulating the approval process. The Ontario Supreme Court of Justice held that the distinction was "not pertinent to the charge laid in the case." Both scenarios are within the ambit of the same general prohibition in s. 37 against distribution of non-approved films.

Both scenarios must be taken into account when examining whether s. 37 is unconstitutional "in its general effects". [13] [ 58 ] The Court held that the two scenarios - a person who submitted a film and exhibits it despite the fact that the Board did not approve it and a person who exhibited a film that was never submitted for approval - was not pertinent because, in effect, each is charged under the same scheme and "one cannot be required to submit to a process that is unconstitutional." [14] [ 59 ] Having so concluded, the Court went on to consider whether there were sufficient adjudicative facts to enable an assessment of the challenge.

The Court concluded that there was a sufficient factual basis for it to make the assessment because the challenge was to the purpose of the statutory scheme, not its effects. Mr. Obey, however, challenges the effects of sections 753(1) and 753.01. [ 60 ] Even though the designation of dangerousness - if I make it - will expose Mr. Obey to the risk that the provisions of

section 753.01 will eventually be applied to him, Mr. Obey's Charter challenge is essentially to the provisions of

section 753.01 alone. In effect, he has argued that the provisions of

section 753.01 are not Charter -compliant and since they cannot be implemented against an offender unless the offender has been designated as dangerous, the determination of dangerousness is entwined in the Charter -offending provisions and they are thereby rendered a "live" issue. [ 61 ] I do not accept this assertion and believe the reasoning is artificial. In fact, if Mr. Obey or any other offender faces sentencing pursuant to

section 753.01, it will be as a result of his being convicted for the commission of a serious personal injury offence or for an offence contrary to

section 753.3(1) for breaching a long-term supervision order. A conviction for either may, upon the Crown's election, place him in the

section 753.01 sentencing regime. It is this new and separate charge that places him at risk of sentencing under

section 753.01 and it is in the course of that sentencing - not sentencing for the current offence - that challenges to the provisions of

section 753.01 more properly lie.

[ 62 ] The fact that my decision may bring into play other provisions that may be susceptible to Charter challenge does not bring those provisions within the purview of this Court in advance of their arising in fact. [ 63 ] I am satisfied, therefore, that the application before me is hypothetical at this time. I am also satisfied that in the circumstances of this case, it would be ill-advised to rule on the hypothetical issues. At this juncture, there is no factual foundation as to the circumstances which eventually bring Mr. Obey into the ambit of

section 753.01 (if he ever is so brought) or of the manner in which he is brought. Without these, an assessment of the effects of the impugned provisions cannot be thorough or precise. [ 64 ] I am supported in this conclusion upon consideration of another Supreme Court of Canada case. In R v Borowski , [15] the question was whether the Court should hear and determine Mr. Borowski’s appeal notwithstanding that the substantive issue before the Court had become moot. [ 65 ] Mr. Borowski commenced action in the Saskatchewan Court of Queen’s Bench for an order declaring, inter alia , certain subsections of

section 251 of the Criminal Code respecting abortion to be invalid and inoperative. By the time the matter reached the Supreme Court of Canada, that Court had decided R v Morgentaler (No.2) [16] in which the whole of

section 251 was struck down. As such, the provisions that Mr. Borowski challenged were no longer in effect and his matter had become moot. The question was whether the Court should consider the appeal notwithstanding that fact. Discussing mootness, Mr. Justice Sopinka wrote: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties.

If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. [ 66 ] I recognize that the concept of mootness is not identical to the concept of hypotheticality in the case before me but the parallels between the concepts are significant. Each involves an issue which is not “live” before the Court. The policy quoted above, although pertaining to mootness, is equally appropriately applied to a hypothetical case. [ 67 ] In this case, a decision by this Court on the matters raised by Mr.

Obey will not have practical effect on any controversy now before the Court and will not affect the rights of the parties in this matter. Any application a decision now might have is wholly theoretical at this time. 2. Does the Provincial Court of Saskatchewan have jurisdiction to make a declaratory order? [ 68 ] If I am correct in my conclusion that Mr. Obey's Charter application is limited to the provisions of

section 753.01 and that those provisions do not become "live" before me by virtue of their being consequent on the designation decision, Mr. Obey's application is essentially for an order declaring those provisions to be contrary to the Charter . [ 69 ] I am satisfied that the Provincial Court of Saskatchewan, and therefore, I as one of its judges, do not have jurisdiction to make a declaratory order.

In this regard, I rely on Alberta v B. (K.) , [17] a decision of the Alberta Court of Queen's Bench, where it was held: As a statutory court, the Provincial Court is limited to interpreting or applying the law necessary to deal with the issues before it, and cannot grant a formal declaration of invalidity, which is a remedy exercisable only by a superior court. . . . The Provincial Court is not, of course, incompetent to deal with Charter issues where the jurisdiction to do so exists. However, a statutory court can only apply the Charter to determine that a particular provision of

an act which is relevant to the outcome of the proceedings before it is of no force or effect. There is no inherent jurisdiction in the Provincial Court to issue general declarations of invalidity. That Court is limited to ruling on the precise legal questions which are properly before it . ( References to authorities omitted. ) ( Emphasis mine.) [ 70 ] Mr.

Obey submitted that it would be fundamentally wrong or unfair if this Court has the power, pursuant to section 753(1) to impose an indeterminate sentence - the most serious consequence available under the Criminal Code - and yet not have the power to deal with its unconstitutional aspects. However, this Court does have the power to assess and remedy unconstitutional aspects of

Part XXIV. My conclusion in this case is not that the Provincial Court does not have jurisdiction to consider the constitutional challenge that Mr. Obey has brought; my conclusion is that this Court does not have jurisdiction to do so at this time as it is hypothetical. If events occur which place Mr. Obey (or any other offender) within the provisions of

section 753.01, a constitutional challenge to some or all of the provisions of

section 753.01 will be within the jurisdiction of the Court, provincial or superior. REMEDY [ 71 ] Mr. Obey submitted that if I concluded that this Court did not have power to make a declaration of invalidity, I can and should nonetheless fashion a remedy based on section 753(1) alone as was done in Boutilier . Or, he suggested, I can reduce the sentence in light of Charter breaches. In this regard, he submitted that I might dismiss the Crown's application to designate Mr. Obey as a dangerous offender. [ 72 ] Mr. Obey specifically stated in paragraph 80 of his written argument that while he would "likely submit that this Court should strike

section 753.01 from the Criminal Code , consideration of a remedy is premature." In this, he is correct as no remedy could be fashioned for Charter breach without first allowing the Crown an opportunity to demonstrate that the breaches are saved by

section 1 of the Charter as demonstrably justified in a free and democratic society. This would be so no less if I were to consider fashioning a remedy on a basis not specifically argued, especially as the Crown would have no notice that I intended to consider some other remedy or the nature of any remedy I might consider.

CONCLUSION [ 73 ] Given my conclusion that the matter of Charter compliance in

section 753.01 is not a live issue before me, that I will not conduct an analysis on a hypothetical basis and that I do not have jurisdiction to consider the matter by way of a declaratory order, I will not offer any conclusions whether the impugned provisions of

section 753.01 are contrary to

section 7 or 12 of the Charter in the manner argued or otherwise. ____________________________ B. Tomkins, J