Welsh JA began the analysis with a consideration of the Crown Policy – as an aside, the Policy was not filed at trial (although it should have been) but was filed on consent on the appeal [para 10] – With respect to the Crown policy, Welsh JA accepted “that the Crown’s written policy serves as a guide, providing parameters for the exercise of discretion. Such a guide is intended to reduce the possibility that the discretion would be exercised in a manner that may be inconsistent with the principles of fundamental justice” [para 16].
Anderson argued, however, that “the policy is deficient insofar as no reference is made to consideration of the offender’s aboriginal status” [para 20].
In considering this argument Welsh JA reviewed the authorities on Crown discretion including R v Gill, 2012 ONCA 607. Citing paragraph 56 Welsh JA offered the following:
The underlying rationale in that analysis is that a decision to proceed with a request for a mandatory minimum sentence is simply a decision as to an aggravating factor. I do not agree. The Crown’s decision to seek a mandatory minimum sentence is analogous to choosing, for example, whether to proceed by indictment or summary conviction or to accept a guilty plea to a lesser charge. Those decision, subject to proof by evidence, provide the parameters within which the judge may act. A mandatory minimum specified in the Criminal Code sets a floor. Aggravating factors, in general, do not have this effect. Rather, they provide information on which the judge exercises discretion in determining a fit sentence [para 28].
After further analysis Welsh JA held that “contrary to the decision in Gill,” it was “satisfied that a request for imposition of a mandatory minimum sentence is a core prosecutorial function” [para 31]. Notably, however, Welsh JA held that “the analytical framework for assessing an alleged infringement under section 7 of the Charter is the same” [para 29].
With respect to the specific argument, Welsh JA held that while particular reference to aboriginal status would be helpful, “the language of the policy is sufficiently broad to permit the prosecutor to consider the offender’s aboriginal status, along with any other of the offender’s circumstances including his background” [para 38].
However, Welsh JA further held, “the absence of specific reference to that factor in the policy, considered in light of the comments in Ipeelee and Gladue as to its importance, will, in the absence of an explanation by the Crown, result in an inference that the offender’s aboriginal status was not taken into account” [para 38].
In conclusion, Welsh JA held that while the trial judge erred in his analysis, there was no error in the conclusion that the filing of notice, without reason, violated section 7 of the Charter.
Rowe and Green JJA agreed in the result. The one point of departure, however, was with respect to the exercise of discretion being a core prosecutorial discretion.
With respect, I disagree with the conclusion of the Court of Appeal. The following points set the backdrop for this position.
First, on a Charter application, the onus is on the applicant, to establish the breach, on a balance of probabilities.
Second, it seems that the court accepts that the Crown Policy is worded broadly enough to encompass the background of the offender, including his aboriginal status.
Third, it should be presumed that the Crown – as an officer of the court and quasi-minister of justice – acts appropriately and in accordance with its own Policy.
Based on these points, it should – and must – follow that unless the accused satisfies the court, on a balance of probabilities, that the Crown in fact disregarded the aboriginal status of the offender, the application must fail.
The finding by the Court of Appeal that the Crown’s failure to indicate the reasons for filing notice, and in particular failing to indicate it considered the aboriginal status of the offender, imposes a burden on the Crown to prove it did not violate the applicant’s rights under section 7. Given the policy and the Crown’s role in the administration of justice, an absence of evidence that the Crown filed notice for some arbitrary or abusive reason, the application must fail and notice should not be set aside.
A final point is worth noting. It must be assumed that Parliament was aware of the fact that some offenders may be aboriginal when it provided for the mandatory minimums. It seems hard to accept that the imposition of those minimums violates sections 7 and 15 simply because the Crown does not expressly indicate that it considered this factor.