R. v. Sharkey, 2014 ONCJ 437

Information No. 14-11593 Citation: R. v. Sharkey , 2014 ONCJ 437 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN V. JOANASSIE SHARKEY **************** R U L I N G **************** HEARD BEFORE THE HONOURABLE MR. JUSTICE D.M. PACIOCCO On Tuesday, August 5, 2014, at OTTAWA, Ontario ****************

APPEARANCES : A. Levans Counsel for the Crown J. Hale Counsel for the accused (

i) Table of Contents ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S **************** Exam. Cr- Re- WITNESSES : in-Ch. exam. Exam. **************** EXHIBIT NUMBER ENTERED ON PAGE ****************

Transcript DVD Received: August 6, 2014 Transcript Completed: August 8, 2014 Tuesday, August 5, 2014 R U L I N G Paciocco, D.M. (orally): There is an issue that has arisen with respect to the application of the victim surcharge. The victim surcharge is provided for in the Criminal Code of Canada and it, on the face of the legislation, requires judges to impose a surcharge on every offender who is sentenced in our courts for each offence. In your case, the victim surcharge would be $100 with respect to each of the three offences or $300.

Under our rules, you would have 30 days to pay that bill and which you could be incarcerated for not having done so. On the 31 st of July 2014, in a case called R. v. Michael , I found the victim surcharge to be unconstitutional and declared it to be of no force or effect. The Crown position is that the decision that I rendered in R. v. Michael is not available to be used in your case unless an application is brought for Charter relief and the entire issue is reargued again in front of me. Their argument is that the declaration is invalid since Mr.

Michael’s case came before me, a provincial court judge, and that my jurisdiction is that of a statutory judge without authority to impose a declaration. The Crown relies on a number of authorities, most importantly, a case called R. v. Lloyd 2014 BCCA 224 . In the Lloyd case, a provincial court judge had declared s.5(3)(a)(i)(

d) of the Controlled Drugs and Substances Act to be of no force or effect. That provision applied a sentence of a minimum of one year for the offence in question that Mr. Lloyd had committed. The trial judge felt that Mr. Lloyd deserved the one year sentence, making the constitutional issue moot. The trial judge nonetheless went on to consider the constitutional validity of that provision and decided that the constitutional challenge was appropriate and, as a provincial court judge, declared that provision to be of no force or effect.

The comments of the provincial court judge to that effect were therefore obiter since they were not required to resolve the issue in the case. The sentence was appealed to the British Columbia Court of Appeal. It only had to rule on the sentence in order to dispose of the case

and did not have to deal with the question on the validity of the declaration. The British Columbia Court of Appeal nonetheless took theopportunity to comment on the declaration that had been made by the provincial court judge. The British Columbia Court of Appeal, of course, is a Court of high authority and its opinions are entitled to serious consideration byjudges in other jurisdictions, but judges in other jurisdictions are not bound by the decisions of the British Columbia Court of Appeal, inparticular, not bound by obiter comments made by the Court in the course of judgment.

The British Columbia Court of Appeal stated that while a provincial court is a court of competent jurisdiction to decide under s.52 of theConstitution Act that a law is of no force or effect, the provincial court judge does not have jurisdiction to grant a full declaration ofconstitutional invalidity for two reasons. First, the declaratory power needed to declare a law of no force or effect arises from the superior court’s inherent jurisdiction. Provincialcourts are statutory courts and do not have inherent jurisdiction. Hence, the B.C.

Court of Appeal took the position that a declaration bya provincial court is of no force or effect. Specifically, the B.C. Court of Appeal held that when the Supreme Court of Canada in the case of R. v. Big M. Drug Mart Ltd. (SCC), [1985] 1 S.C.R. 295 held that an application for invalidity under the constitution can be brought before a provincialcourt judge under s.52 and commented that provincial court judges always had the power to declare legislation invalid in criminal cases,the Supreme Court of Canada was using the term “declaration” loosely and the B.C.

Court of Appeal drew the conclusion that there is adifference between a full declaration and an “extended declaration”. The B.C. Court of Appeal derived its conclusion from its own decision in Shewchuk v. Richard (1986) (BC CA), 28 D.L.R. (4th) 429. The second reason the Court gave for the conclusion that a provincial court judge cannot make a full declaration is because thedeclaration would be of little use. Provincial court decisions are not binding on any other courts under the principles of stare decisis. Given that, what is the point of a declaration of unconstitutionality?

In addition, the Crown cited two other decisions. I will not comment on those decisions as they do no more than contain tritepropositions of law relating to the authority of provincial court judges to declare precedents. I do not agree with these decisions and theyare not binding on me. I begin by accepting that provincial court judges’ decisions are not binding on other courts. They are however precedents arrived atthrough considered deliberation and imposed on the facts of a particular case, having legal consequences for the persons before theCourt.

They are therefore of persuasive value with respect to the decisions made by other courts or by the same court in other cases. First, provincial court judges do have the power to make declarations of Charter invalidity under s.52 of the Constitution Act.

Section 52provides: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, tothe extent of the inconsistency, of no force or effect.” It is not contested that provincial court judges are courts of competent jurisdiction for the purpose of entertaining challenges tolegislation. It is not contested that s.52 is the medium through which provincial court judges can grant remedies. The only remedyfurnished by s.52 is a declaration that the provision in question is of no force or effect.

There is no other way to achieve the remedialresult provided for in s.52 other than through use of the very remedy that the B.C. Court of Appeal has indicated is not available toprovincial court judges. Second, even if there is no power to make formal declarations in the full sense because those decisions are not binding on everyone, thedecision of a provincial court judge is not confined to the case before it alone. The decision in R. v. Lloyd does not hold that and thatwould be inconsistent with the general principles of stare decisis. Judges are free to follow decisions of other provincial court judges.

I’m going to make more comments with respect to the first conclusion relating to s.52 and the power of judges to make declarations first.

First, the position taken by the British Columbia Court of Appeal is, in my view, inconsistent with the Supreme Court of Canadaguidance on the role of s.52. As indicated, provincial court judges have been held to be courts of competent jurisdiction under theCharter, including for the purposes of challenging legislation. As indicated, those challenges are resolved under s.52. And as indicated,it is trite law that under s.52 the remedy to be applied is that the law is to be of no force or effect.

The position that the decision of a provincial court judge under s.52 has legal influence only in the case in which is rendered isinconsistent with the Supreme Court of Canada’s position with respect to the role of s.52.

Section 52 works through a declaration ofinvalidity. If the position of the British Columbia Court of Appeal supported by the Crown in this case is correct, the net effect is that adeclaration of invalidity is a personal remedy. The Supreme Court of Canada in the case of R. v. Ferguson 2008 SCC 6 , [2008] S.C.J. No. 6, at paragraph 59, had thefollowing to say: “When a law produces an unconstitutional effect, the usual remedy lies under s.52(1), which provides that the law is of no force or effectto the extent that it is inconsistent with the Charter.

Section 52 does not create a personal remedy. A claimant who otherwise hasstanding can generally seek a declaration of invalidity under s.52 on the grounds that a law has unconstitutional effects either in his owncase or on third parties:”. I note, as indicated, that if the decision in Michael has legal effect only in Michael, then that is a personal remedy for Mr. Michael andinconsistent with the decision of the Supreme Court of Canada in R. v. Ferguson.

I also note that in applying s.12 of the Charter a court is obliged to look not only at the circumstances of the offender, but also atreasonable hypothetical cases. The reason for that is that the validity of a statute applies to everyone. And that even if it is notunconstitutional as applied to a specific offender, if it is unconstitutional for reasonable hypothetical[s], it does not apply. To confine ajudge’s judgment and its legal effect solely to the decision before it is inconsistent with the notion that a law that is unconstitutional isunconstitutional generally. In effect, R. v.

Ferguson also held that the law cannot tolerate case-by-case exemption. A law that is unconstitutional is unconstitutionalin all cases. A holding that a provincial court decision applies solely to the case at hand is, in substance, a case-by-case exemptioncontrary to the authority in R. v. Ferguson. Secondly, the Supreme Court of Canada in the decision of Big M Drug Mart (supra) is, in my view, inconsistent with the obitercomments in R. v. Lloyd that are not binding on me.

That decision of Justice Dickson in Big M Drug Mart simply cannot bear theinterpretation suggested by the British Columbia Court of Appeal, in which it created a new concept of declaration that has less effectthan a full declaration in law. Justice Dickson said, at pages 315 to 316 of R. v. Big M Drug Mart, when commenting on the power ofprovincial court judges under s.52: “The appellant [in this case the Crown] overlooks the fact that it has always been open to provincial courts to declare legislation invalidin criminal cases.

No one may be convicted of an offence under an invalid statute.” In my view, it makes no sense to interpret a finding of a provincial court judge that a statute is invalid as nothing other than a personaloutcome applicable to the case at hand. There is no indication in s.52 that anything other than a full declaration of no force or effect isavailable and there is no suggestion in Big M Drug Mart that anything less than a full declaration of invalidity was intended by JusticeDickson in the passage just quoted. Third, the implications of the position taken by the Crown are unjust.

If the Crown is correct, it means that the Crown is in a position toisolate a Charter challenge that it loses by not appealing that decision to a superior court. In effect, the decision remains twisting, with nolegal effect outside the parameters of the particular case because the Crown has chosen not to challenge that decision before a court thatdoes have the authority to produce precedents binding in other decisions. If the accused loses, the accused can bring a challenge. But if the accused wins, as in the case of Michael, there is no opportunity to

appeal. Therefore, the defence is left in a position where the decision that the defence won has no meaning outside the parameters of the particular case. Provincial courts are statutory courts, but they are nonetheless courts of competent jurisdiction. The law cannot, in my view, be interpreted to cabin their decisions with such rigidity, as suggested by the Crown. Finally, the position taken by the Crown is, in my view, impractical. It means that the Crown can call for a new Charter application in each and every case.

And that the decision rendered by a judge after solemn consideration and full argument cannot be used as a persuasive precedent by other courts. A Charter application requires 30 days notice. Cases in a busy plea court such as this often involve individuals who are held in custody. Those individuals are encouraged to resolve their cases quickly. The efficient administration of justice requires cooperation. After a decision has been made that a provision is unconstitutional, contrary to s.12, the net effect of that is that decision becomes available to other judges as a reasonable hypothetical.

In effect, those other judges would have the opportunity if a Charter challenge was brought, to consider that other case and decide whether they agree that it represents a reasonable hypothetical. If they do, then they are free to grant the Charter challenge on the basis of the other decision. In substance, that amounts to the same thing as treating the decision as a persuasive authority. It should not be necessary in order to trigger that consideration for formal and pointless Charter challenges to be brought in every case. Those Charter challenges would be particularly pointless in a case where I am presiding.

I have already made a determination, after tremendous reflection, that the victim surcharge is unconstitutional as cruel and unusual treatment and punishment. It would be inappropriate, in my view, to require a Charter application to be brought in every case that comes before myself or any of my brother or sister judges before they can consider the persuasive impact of that decision.

Again, the net effect of the Crown’s position is that in spite of my solemn conviction that the provision is of no force or effect, I am required by law to apply it simply because an offender may not have the wherewithal, the resources, the foresight or the time to bring a formal Charter application. In my view, that is not a reasonable position. It has nothing to commend itself as a matter of policy and it is not supported by law. I conclude that I have the power to issue a declaration of invalidity under the Charter. That decision is, according the principles of stare decisis , not binding on any other judge.

They are free to follow it or not. In my view, they are free to follow it whether or not there is a Charter application in the case before them. In the alternative, even if Lloyd is correct and there is a concept in law of an extended declaration that is a special downgraded form of declaration that applies solely in the case at hand, it does not mean that the decision in R. v. Michael has no force or effect. The Lloyd decision does not say that. It says only that it is not binding on other judges, so it is not a real declaration. Even if I accept, as I do, that the decision in R. v.

Michael is not binding on other judges and it is a form of lesser declaration, the ordinary principles of stare decisis still apply. Those ordinary principles of stare decisis mean that a decision rendered by a provincial court judge remains a persuasive precedent, a considered adjudicated precedent in this case that the victim surcharge is unconstitutional. It cannot, in my view, be necessary for that ordinary principle of stare decisis to apply for the court files to be cluttered with repeated Charter applications.

The precedent is available because it is a finding in law made by a judge that is a court of competent jurisdiction to render that decision. In my view, not surprisingly, the decision in R. v. Michael is persuasive. I would not have taken the extreme measure of striking down a parliamentary provision had I not been thoroughly convinced that that was the correct legal outcome. I therefore propose to follow that provision in this case and in all other cases before me. Judge approved August 19, 2014 Paciocco, J.

FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Lynne Johnson , certify that this document is a true and accurate transcript of the recording of Joanassie SHARKEY in Courtroom #7 held at 161 Elgin Street, Ottawa, Ontario K2P 2K1 taken from Recording 0411-07-2014-08-05 , which has been certified in Form 1. August 8, 2014