R v Dignard, 2017 MBCA 123

Citation: R v Dignard, 2017 MBCA 123 Date: 20171208 Docket: AR17-30-08919 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) Z. M. Jones ) for the Applicant ) Respondent ) J. A. Hyman - and - ) for the Respondent ) SANDRA MARGARET DIGNARD ) Chambers motion heard: ) December 7, 2017 ) (Accused) Applicant ) Decision pronounced: ) December 8, 2017 beard JA I. THE ISSUES [ 1 ] The accused has applied under section 679(1) (

b) of the Criminal Code for judicial interim release (JIR) pending her sentence appeal. As she is appealing only her sentence, she must obtain leave to appeal before she can proceed with her application for JIR. The accused’s application for leave was dismissed at the hearing with brief reasons to follow. These are those reasons. [ 2 ] According to her application for leave to appeal, she will be raising the following grounds on the appeal: (

i) she should be permitted to raise a new ground of argument on appeal to prevent an injustice; (ii) the applicable mandatory minimum sentence to which she was subject violates

section 12 of the Canadian Charter of Rights and Freedoms (the Charter ) and should be declared unconstitutional; and (iii) ineffective assistance of counsel. [ 3 ] The accused was convicted, after a trial, of possession of morphine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19. The circumstances of the offence are that the accused and her minor children were to have a multi-day family visit at a federal penitentiary with H.A., the father of her children.

She took with her, hidden inside her body, 100 pills of morphine, each 100 mg strength with a total value of $10,000, to give to H.A. The security officers were tipped off and seized the drugs, leading to her arrest. [ 4 ] At trial, the accused raised the defence of duress, which was rejected by the trial judge. She acknowledged that that was not the first time that she had taken drugs to the penitentiary. The accused, who was approximately 32 years old at the time, had no criminal record. The trial judge sentenced her to the minimum mandatory sentence of two years’ incarceration (see section 5(3)(ii)(

B) of the Controlled Drugs and Substances Act ). [ 5 ] The accused’s trial lawyer, who was not her lawyer on appeal, had apparently advised the accused that, if she was convicted, he would bring a motion under

section 12 of the Charter to challenge the constitutional validity of the mandatory minimum sentence. By the time that the accused was being sentenced, the trial lawyer had been charged with drug possession and impaired driving. The motion was never made and the accused received the mandatory minimum sentence. The accused now wants to raise this challenge to the mandatory minimum sentence for the first time on appeal. [ 6 ] The Crown’s position is that, to obtain leave to appeal, the accused must show the following: (

i) that she is likely to be permitted to raise the constitutional challenge for the first time on appeal; (ii) that the constitutional challenge has some merit; and (iii) that, if the challenge succeeds, she has an arguable case that the two-year sentence was demonstrably unfit. It argues that she cannot meet these criteria, with the result that the motion should be dismissed. II. RAISING A NEW ISSUE ON APPEAL [ 7 ] The general rule is that new arguments on appeal will be permitted only in exceptional circumstances. The prerequisites to doing so are: (

i) that there is a sufficient evidentiary record to resolve the issue; (ii) that the accused must not have failed

to raise the issue in the first instance for tactical reasons; and (iii) that no miscarriage of justice will result from the refusal to raise thenew issue on appeal. (See R v Mian, 2014 SCC 54 at paras 36-52; R v Brown, (SCC), [1993] 2 SCR 918 at 927; and Rv EGM, 2004 MBCA 43 at para 12.) [8] The Crown acknowledges that there was no tactical decision not to challenge the mandatory minimum sentence at thetrial, but it argues that the accused is not able to meet the other two criteria.

I agree with this position for the reasons given by theCrown. [9] The Crown’s position is that there is not a sufficient evidentiary record from the trial to resolve a Charter challengeto the legislation at the appeal stage. It states that, in response to such a challenge, it would need to call evidence from correctionalauthorities regarding the dangers caused by drugs being brought into prisons which would be relevant to the moral culpability of theaccused and, if a violation were found, to an argument under

section 1 of the Charter. The type of evidence that would be presented isoutlined in R v Boutcher, 2017 NLTD(G) 111, a decision in which the same challenge was dismissed. [10] It is clear that the Crown has not had the opportunity to present that evidence in this case, and it would be essential tothe determination of the validity of the legislation, which involves complex issues. That evidence is likely to be extensive, involvingcalling and cross-examining expert witnesses.

This is not the type of factual issue that is amenable to being determined for the first timeon appeal. [11] It should be noted that the remedies available to this Court on a sentence appeal are limited to those set out in section687(1) of the Criminal Code, being to either vary the sentence or dismiss the appeal. Returning the matter to the trial court for anypurpose, such as to hear further evidence and make further factual findings, is not an available remedy.

Thus, the accused is not able tosatisfy this criteria for permitting a new issue to be raised on appeal. [12] The Crown also argues that no miscarriage of justice would result from the refusal to raise the new issue on appealbecause the challenge is unlikely to be successful and because the accused is not eligible for a conditional sentence due to othersentencing provisions that she has not challenged (see

section 742.1(

c) of the Criminal Code). I find the reasons in Boutcher on theconstitutionality of the mandatory minimum sentence to be persuasive, and I agree with the Crown that a challenge to the legislationunder

section 12 of the Charter is unlikely to be successful. [13] That said, as I noted earlier, determining the constitutional validity of legislation involves complex issues and it appearsthat there has been no appellate jurisprudence on the validity of this mandatory minimum sentence. For this reason, if this were theCrown’s only argument, I would not deny the motion for leave to appeal on this basis alone. III. FITNESS OF SENTENCE [14] Even if the mandatory minimum sentence were declared invalid based on a reasonable hypothetical case, a sentence oftwo years’ incarceration is not demonstrably unfit in this case.

Taking drugs into a prison is a very serious offence that would attract asignificant jail sentence, even absent the mandatory minimum sentence.

The cases presented by the Crown involving similar accused insimilar circumstances indicate a range of sentence from a high conditional sentence (before this offence became ineligible for aconditional sentence) to a period of incarceration of between one and three years. (See R v Rathwell (7 July 2004), Red Deer (Alta QB);R v Vandenbosch (KA), 2007 MBCA 113; R v Cook (12 January 2007), Winnipeg (Man QB); R v Crough (20 April 2011), Red Deer,Action No 071071385Q1 (Alta QB); R v Ducharme, 2013 MBPC 1; and Boutcher.) The accused has not provided any jurisprudencethat calls into question this range. [15] In imposing the two-year mandatory minimum sentence, the trial judge indicated that he did not view it as a fit andproper sentence.

Given that he heard no argument on this issue and no evidence was called as to the problems caused by illegal drugs inprisons (which is relevant to the seriousness of the offence and the accused’s moral culpability), his comments are unhelpful and of noassistance. [16] Thus, given that a sentence of two years’ incarceration is within the range of sentence for this offender and this offence,it is not demonstrably unfit and, therefore, also not grossly disproportionate for this offender. IV. DECISION [17] For these reasons, I am dismissing the accused’s motion for leave to appeal her sentence.

As leave to appeal has notbeen granted, the accused’s application for JIR is also dismissed. JA