MCLNugget: Prystay ABQB

R v Prystay, 2019 ABQB 8


The Issue

Prystay was charged with a number of offences including possess of a loaded firearm and failing to stop for police. Following his arrest he was detained in custody for 28.5 months. During this period of time he assaulted another inmate. He was consequently placed in administrative segregation – remaining there for 13.5 months. The issues for the court on sentencing were:

  1. Did the segregation amount to a violation of sections 7 or 12

  2. If so, what remedy – a stay or a sentence reduction via enhanced credit beyond 1.5:1 – is appropriate

The Answer

The placement of Prystay in administrative segregation amounted to a violation of s12. It was not the clearest of cases, however, and a stay was not warranted. As an alternative remedy, the court granted enhanced credit beyond 1.5:1 at a rate of 3.75:1.

The Fine Print

In coming to this conclusion the court touched on a number of points related to detention conditions. First, the court noted the general recognition that pre-sentence custody time is more onerous than sentencing time:

It has long been recognized that time served in remand or pre-trial custody is more onerous than time served in a penitentiary after sentencing.  Not only is the environment harsher, with limited access to programs, but pre-trial custody does not count toward parole eligibility or statutory release: R v Sooch, 2008 ABCA 186 at para 11, 433 AR 270; R v Summers, 2014 SCC 26 at para 26, [2014] 1 SCR 575; R v Adams, 2016 ABQB 648 at para 29, [2017] 4 WWR 741. [Para 19].


Second, with respect to segregation, the court arrived at the following conclusions:

Inmates in either form of segregation are confined to their cell for 23 hours a day. Most are in single cells.  They have two half-hour blocks outside of their cell during each 24 hour period. If an inmate is designated a cleaner for the unit, they may have an additional one to two hours outside their cell. Movement is strictly controlled. ERC staff are separated from the inmates by a steel and glass wall. 


Arguably, it is the lack of meaningful human contact that is the most pernicious consequence of placement in segregation. Human beings are not meant to be isolated, particularly for extended periods. The longer a person is isolated, the more challenging it is to relate to others in an acceptable way and to form any type of meaningful relationship. [Paras 28, 39]


Third, the court discussed limits and expectations regarding the length of segregation:

To reiterate, Prystay does not challenge his initial placement in AS. His conduct against a fellow inmate warranted this action. The legitimate penal aim in placing Prystay in AS was to ensure the safety and security of other inmates and staff. As outlined below, placement in AS for 13 ½ months went well beyond what was necessary to achieve this legitimate aim. 

Of note, an inmate cannot be placed in DS for more than 14 days at a time: Correctional Institute Regulation, Alta Reg 205/2001, s 46. In contrast, neither the Corrections and Conditional Release Act, s 1992, c 20 (CCRA), nor its regulations, mandate any limit on placement in AS. [Paras 48-49].


Fourth, the court commented on the impact of the “indefinite” placement in segregation on Prystay:

I accept Prystay’s evidence that while in AS, he suffered from auditory hallucinations, paranoia, difficulties sleeping, anxiety and chest pain, feelings of hopelessness, increased antisocial feelings. Given his pre-existing mental health issues and the sheer length of time spent in AS, I conclude he was at increased risk of suffering some degree of permanent impact.   

Despite Prystay not having demonstrated permanent psychological injury caused by his stay in AS, I have no hesitation in concluding that while in AS, he suffered mental injury and physical symptoms and his placement put him at significant risk of permanent psychological injury. 

Finally, I conclude that Prystay’s placement was devoid of procedural fairness and appropriate oversight, and on the evidence, his ongoing placement was not justified. [Paras 82-84].


Finally, in terms of remedy, the court found a stay was not appropriate:

Similarly, while I find the evidence here to be shocking and deeply disturbing, these circumstances fall short of the “clearest of cases,” especially since a reduction in sentence can be fashioned so as to provide an appropriate remedy. [Para 162].

Constitutional Jurisdiction - Confirmed

Joseph Lloyd was charged with trafficking contrary to section 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act. He faced a mandatory minimum sentence of one year. He challenged that minimum and asserted that it violated section 12 of the Charter. Notwithstanding that the trial judge (and counsel) believed that Lloyd deserved a sentence of at least 12 months, the trial judge considered the constitutionality of the provision and held that it violated section 12. The trial judge “declared” the provision to be of no force and effect. The Crown appealed and succeeded. Lloyd appealed to the Supreme Court: 2016 SCC 13.

The Supreme Court’s ruling offers three significant points of interest: (i) constitutional jurisdiction; (ii) the standard for section 12; and (iii) the limits of section 7.

Constitutional Jurisdiction

Before considering the constitutionality of the minimum sentence, McLachlin CJ, writing for the majority, addressed the issue of the constitutional jurisdiction of provincial court judges. The Court of Appeal had taken issue with the provincial court judge’s purported “declaration” of invalidity – holding that only superior courts, which have inherent jurisdiction can make such a finding. McLachlin CJ agreed:

The law on this matter is clear. Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power.  However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them. As this Court stated in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 316, “it has always been open to provincial courts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.” See also Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5, at pp. 14-17; Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570, at p. 592; Re Shewchuk and Ricard (1986), 1986 CanLII 174 (BC CA), 28 D.L.R. (4th) 429 (B.C.C.A.), at pp. 439-40; K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at p. 6-25.
The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982. [Emphasis added]. @paras15 and 19

McLachlin CJ thus confirmed that while the provincial court judge in the present case had the statutory jurisdiction to consider the constitutionality of the provision – and to grant a remedy for Lloyd – the court had no inherent jurisdiction and thus no authority to make a “formal declaration”. Notably, McLachlin CJ went on to make clear that in cases such as the present one (where Lloyd was not impacted by the mandatory minimum) the doctrine of mootness could apply and the court could (perhaps should) decline to consider the issue:

To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process. [Emphasis added]. @para18

This conclusion is indeed consistent with the Court’s prior jurisprudence on this point and, equally important, logical and principled. There is nothing in our constitutional history and nothing in our principles of law that would warrant otherwise.

Section 12

Turning to the constitutionality, McLachlin CJ held that the provision violated section 12 – a three-member minority (Gascon, Wagner and Brown JJ) dissented on this conclusion and would have upheld the provision. Notably, however, McLachlin CJ offered some helpful language regarding the high bar for a finding of disproportionality under section 12:

This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6 (CanLII), [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate. @para24

The import of this can be understood – to some extent – when one reviews the dissent which expresses notable concern and offers a note of caution about the impact of the majority’s finding on this standard and how the majority’s conclusion appears out of step with the Court’s prior position on mandatory minimum sentences. @paras105-107.

Section 7

The final area of interest in Lloyd is the Court’s consideration and rejection of “proportionality” as a principle of fundamental justice. Notably, the Court considered the same issue in Safarzadeh-Markhali, 2016 SCC 14. In both cases the Court rejected the inclusion of “proportionality” as a principle of fundamental justice – in Lloyd the following comments summarize that rejection:

I am unable to accept the submission that the principle of proportionality in sentencing is a principle of fundamental justice under s. 7 of the Charter. My starting point is the observation that principles of fundamental justice in s. 7 must be defined in a way that promotes coherence within the Charter and conformity to the respective roles of Parliament and the courts.
Recognition of the principle of proportionality in sentencing as a principle of fundamental justice under s. 7 would also have implications for the respective roles of Parliament and the courts. The principle of proportionality is an admirable guide for judges seeking to impose fit sentences within the legal parameters established by Parliament.  But it is not an overarching constitutional principle that allows judges to subvert the norms of punishment enacted by Parliament. Those norms are judged only by the standard of s. 12.
Parliament has the power to make policy choices with respect to the imposition of punishment for criminal activities and the crafting of sentences that it deems appropriate to balance the objectives of deterrence, denunciation, rehabilitation and protection of society. Courts owe Parliament deference in a s. 12 analysis. As Borins Dist. Ct. J. stated in an oft-approved passage:
It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. (R. v. Guiller (1985), 48 C.R. (3d) 226 (Ont.), at p. 238)
[Emphasis added]. @paras 40, 43 and 45



Victim Surcharge, constitutionally sound

The victim surcharge codified in section 737 of the Criminal Code has survived yet another challenge to its constitutional validity: R c Boudreault, 2015 QCCQ September 23, 2015 (currently unreported). Alex Boudreault committed lots of criminal offences, some summary and some indictable. By the time sentence was to be imposed he had entered pleas of guilt to 19 charges including numerous breaches of conditions, residential break and enter and assault with a weapon.

Some of the offences Boudreault plead guilty to pre-dated the amendment to s737 of the Code, meaning that the judge retained a discretion to vary or waive the amount owed by the imposition of the surcharge. Some of the convictions post-dated the amendments to s737 of the Code. The amendments removed judicial discretion to vary or waive the surcharge and also increased the amount of the surcharge. Boudreault was to owe $1400 in mandatory surcharges and a maximum of $1200 in respect of the pre-amendment convictions.

Boudreault sought a declaration that the mandatory victim surcharge violated section 12 of the Charter and was therefore unconstitutional.

Boudreault testified that:

·         He had dropped out of high school at the age of 15

·         He has never had stable employment

·         He has not received any income since November 2013

·         Upon his release from prison he wishes to complete his high school diploma

In light of these circumstances Boudreault argued that his limited earning capacity results in a grossly disproportionate effect of the surcharge provisions such that the provision is unconstitutional.

Boyer J of the Quebec provincial court rejected this argument. The Court held that notwithstanding the fact that the offender is both of limited means and with limited earning capacity an extension of the time to pay the surcharge would inure to the benefit of the offender. Moreover, non-payment of the surcharge does not result in consequences to the accused. It is only by application of the regulation that allows for the issuing of a warrant in default of payment that triggers the potential for consequences due to default.

Additionally, the province of Quebec offers a fine option program. Those with surcharge sums due may also avail themselves of the fine option program. In fact during his testimony the offender conceded that he was contemplating making use of a fine option program so that he could satisfy the outstanding debt.

In fact, in Quebec any offender in custody is notified by letter prior to their release of the amount of surcharges owing and the availability of a fine option program. Evidence lead at the hearing revealed that an 8hour work day at minimum wage results in 80$ paid to the outstanding surcharge debt. In order to pay off the mandatory $1400 the offender in this case would have to complete 17.5 consecutive days of work.

Boyer J noted that “if the accused considers that the total amount of the surcharges he owes are excessive, he has only himself to blame, given the high number of offences he committed; this does not render the punishment of the surcharge a cruel and unusual punishment.” [translated from the original French at para 44]

Having found no violation of s12 on the basis of the actual circumstances of the offender before the court, Boyer J then turned to a consideration of reasonable hypotheticals.

First, the court considered a scenario where an accused was charged with 56 counts of unlawfully at large. Although, not expressly mentioned in this particular decision the reference to a crime against the administration of justice such as unlawfully at large, as opposed to a crime perpetrated against a named victim harkens to arguments raised on other constitutional challenges to this provision based on a lack of connection between the purpose of the legislation and mechanism by which the purpose is achieved. In any event, Justice Boyer dismissed the example as an unreasonable hypothetical noting that much like the case of the offender before the court, the offender alone is responsible for the number of counts they are facing- not s737 of the Code.

Justice Boyer then cited with approval a decision from the Nova Scotia Court of Appeal:

The trial judge erred in law in his analysis concerning the application of section 12 of the Charter. He could not base his finding that the sentence provided for in the Excise Act constitutes cruel and unusual punishment simply on the fact that Desjardins is on welfare and that the Crown did not establish his ability to pay the fine. Courts are not ignorant of the ease with which many convicted persons can prove their financial incapacity by showing their lack of legal financial resources at the moment of sentencing. [at para 29]

Although not referenced by Justice Boyer this is entirely consistent with the Supreme Court of Canada’s determination in Wu where the majority of the Court held that the present inability of an offender to pay cannot be the basis to conclude that he will, for all time, be unable to pay.

As stated, the trial judge gave the respondent no time to pay. This was in accordance with a request from the defence, which sought to lay the basis for a conditional sentence. But it was an error. If it is clear that the offender does not have the means to pay immediately, he or she should be given time to pay: see R. v. Andrews (1973), [1974] 2 W.W.R. 481 (B.C. S.C.), and R. v. Brooks, [1988] N.S.J. No. 94 (N.S. C.A.). The time should be what is reasonable in all the circumstances: R. v. Beaton (1984), 49 Nfld. & P.E.I.R. 15 (P.E.I. C.A.), and R. v. Tessier (1957), 21 W.W.R. 331 (Man. Co. Ct.). In Canada (Attorney General) v. Radigan (1976), 33 C.R.N.S. 358 (Que. C.A.), the Quebec Court of Appeal allowed the offender to pay a fine of $5,000 through semi-annual instalments of $625. The courts have considerable flexibility to respond to the particular facts of an offender's situation. It is wrong to assume, as was done in this case, that the circumstances of the offender at the date of the sentencing will necessarily continue into the future.
[. . .]
An offender's inability to pay is precisely the reason why time is allowed, not a reason why it should be altogether denied: R. v. Natrall (1972), 9 C.C.C. (2d) 390 (B.C. C.A.), at p. 397; R. v. Zink (1992), 13 B.C.A.C. 241 (B.C. C.A.). It is true that the fine could not have been paid immediately, and perhaps never in full, but the mandatory minimum fine scheme imposed by Parliament was effectively nullified by immediately shifting the penalty from the respondent's financial interest to his liberty interest. R v Wu, 2003 SCC 73 at paras 31 and 33 (SCC)

Justice Boyer also rejected the offender’s hypothetical scenario involving an offender subject to an absolute discharge.

The Court found that the offender could not possibly be sentenced to an absolute discharge given the seriousness of the offences before the court. Boyer J held that it was incumbent on the accused to raise reasonable hypotheticals and not hypotheticals that are implausible or hard to imagine.

The Court concluded that s737 is constitutionally sound and imposed the mandatory surcharges. The Court then waived the imposition of the discretionary (pre-amendment) surcharges.  Ironically, judges consistently waiving the surcharge was one of the leading factors in the decision to amend s737 of the Code and make the surcharge mandatory in all cases. 


Grossly disproportionate, for someone at least

Guns are dangerous weapons. Crime perpetrated with a firearm “poses grave danger to Canadians. [@para 1] It might surprise you to learn, that despite this risk of grave harm identified by the Supreme Court of Canada, today, that very Court struck down the mandatory minimum sentences for the possession of a prohibited or restricted firearm: 2015 SCC 15.

Six Supreme Court judges struck down the mandatory minimum sentences which were imposed for possessing a prohibited or restricted firearm that is either loaded or kept wit readily accessible ammunition. For a first offence the offender would serve 3years; a second offence 5years. The dissenting three judges found that these mandatory minimums did not offend section 12 of the Charter.

The majority of the SCC commenced their analysis from the starting point that “mandatory minimum sentences, by their very nature have the potential to depart from the principle of proportionality in sentencing.” [@para 44] Mandatory minimum sentences they held “function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range.” [@para 44]

An analysis of a punishment under section 12 requires the court to consider first, whether the sentence is grossly disproportionate as applied to the individual offender before the court (the particularized inquiry). Second, the court must consider whether the impugned sentence “may impact on third parties in reasonably foreseeable situations.” [@para 56]

The introduction of the phrase “reasonably foreseeable situations” as a synonym of the term “reasonable hypothetical” is a direct response to the majority’s view that:

the word “hypothetical” has overwhelmed the word “reasonable” in the intervening years, leading to debate on how general or particular a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails to assign a particular concatenation of characteristics to her hypothetical, the analysis is vitiated. With respect, this overcomplicates the matter. [@para 57]

The question that the court must ask, regardless of the terminology is “whether the sentence would be grossly disproportionate in reasonably foreseeable cases.” [@para 57]

In determining what is a reasonably foreseeable circumstance the court can look to reported cases. “Not only is the situation in a reported case reasonably foreseeable, it has happened.”[@para 72] However, the court is not prevented from looking to reasonably foreseeable scenarios not found in reported cases.

In crafting a reasonable hypothetical or in determining whether a particular set of circumstances is reasonably foreseeable the role that the personal characteristics of the offender should play has been widely debated. On one end of the spectrum it has been argued that such “consideration must be generalized to the point where all personal characteristics are excluded”. On the other end, some “assert that any and all characteristics should be included.” [@para 73]

The majority concluded that first, “personal circumstances cannot be entirely excluded.” However, by way of example on what constitutes a personal circumstance the majority offered the following:

For example, as we will see in applying the test to this case, it may be relevant to look at the fact that an offender at the licensing end of the spectrum caught by the mandatory minimum might come into innocent possession of the prohibited or restricted firearm, or be mistaken as to the scope of the prohibition. [@para 74]

This type of example relates to the level or type of intent as opposed to what is traditionally understood as personal characteristics. In other words, the personal circumstances such as age, prior criminal record, socio-economic status, are not what the court is referring to. This distinction is important because it illustrates that only personal circumstances related to the offences are what may be considered.

Moreover, this distinction ties into the second conclusion the court draws on this point:

(…) far-fetched or remotely imaginable examples should be excluded from consideration. This excludes using personal features to construct the most innocent and sympathetic case imaginable — on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality. To repeat, the inquiry must be grounded in common sense and experience. [@para 75]

The two offenders before the Court, Charles and Nur, did not argue that the mandatory minimum terms were grossly disproportionate as applied to them [@para 48].  Charles was arrested at his home with a loaded semi-automatic handgun and ammunition. The gun had an over-capacity magazine and the serial number had been removed. Charles had a serious and lengthy criminal record which included 5 other firearms offences. [@paras 28-29] Charles was thus subject to the 5year mandatory minimum.

Nur was arrested outside a community centre in a high crime area of Toronto. The centre had been locked down as a result of concerns about the presence of some threatening looking individuals outside. When police arrived Nur ran and threw something to the ground. Police caught Nur and retrieved the discarded item which turned out to be a loaded handgun with an oversized ammunition clip. [@para 18] Nur as a first offender was subject to the 3year mandatory minimum.

The reasonably foreseeable circumstances prevailed. The Court held that it was entirely possible for an individual who had breached a firearm prohibition order imposed while on bail and who, some years later, innocently came into possession of a restricted or prohibited firearm without an authorization or a license together with usable ammunition that he stored nearby and which was readily accessible.” [@para 103]

On this basis the Court concluded that:

A five-year minimum term of imprisonment for offenders such as these would be draconian. It goes far beyond what is necessary in order to protect the public, far beyond what is necessary to express moral condemnation of the offender, and far beyond what is necessary to discourage others from engaging in such conduct. In a phrase, such a sentence would be grossly disproportionate. An offender in these circumstances has not caused any harm, nor is there a real risk of harm to the public. Such an offender is not engaged in any criminal activity. [@para 104]

Similarly a first time offender “who has a valid licence for an unloaded restricted firearm at one residence, safely stores it with ammunition in another residence, e.g. at her cottage rather than her dwelling house” would face a 3year sentence [@para 79]. The majority found that

[g]iven the minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm flowing from the conduct (i.e. having the gun in one residence as opposed to another), a three-year sentence would be grossly disproportionate. [@para 83]

Having found a breach of section 12 the majority then conducted an analysis under section 1 of the Charter to determine whether the breach was justifiable in our free and democratic society. They concluded that it was not.

Notwithstanding the finding that the section 95 mandatory minimum sentences are of no force and effect the majority reminded us that:

It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. [@para 120]


Tinker: The Answer, for now

Edward Tinker was convicted of uttering threats and breach. He decided to challenge the constitutional validity of the victim surcharge, a mandatory order to be imposed under section 737 of the Code. Tinker challenged the surcharge under sections 7 and 12 of the Charter. At the first instance motion, Beninger J drew the following conclusions: 2014 ONCJ 208.

First, that the surcharge is a form of punishment [@para16]. In so concluding, Beninger J adopted the analysis by Schnall J in R v Flaro, 2014 ONCJ 2.

Second, that the surcharge impacts on security of the person. In coming to this conclusion, Beninger J rejected the Crown’s position that granting time to pay relieves against this impact [@paras20-21].

Third, that the surcharge infringes on security of the person in a manner that is not in accordance with the principles of fundamental justice; it is “arbitrary, overreaching, and grossly disproportionate” [@para34]. In coming to that conclusion, Beninger J reviewed the law on section 7, relying primarily on Canada (Attorney General) v Bedford, 2013 SCC 72. Notably, in relation to gross disproportionality, Beninger J set out the test from R v Nur, 2013 ONCA 677 (a test set out in that case under the section 12 analysis).

The Crown appealed: 2015 ONSC 2284.

On appeal, Glass J rejected the conclusions that the surcharge was punishment and held that it did not violate the principles of fundamental justice in section 7.

First, Glass J held that the surcharge is not punishment. Glass J held that the surcharge was not a sanction in its own right, “[r]ather, the surcharge is a sum of money that goes into a pool of resources to help victims of crime. Just as there are requirements for providing DNA samples upon conviction of offences and they are not sanctions, so do victim surcharges become requirements without being penalties” [@para29].

Second, Glass J held that the surcharge is not grossly disproportionate. In doing so, Glass J noted that the ability to grant time to pay was an appropriate response to the present inability to pay: see R v Wu, 2003 SCC 73. Glass J concluded:

The case before me is a far cry from being grossly disproportionate for the persons involved and further when applied to reasonable hypotheticals.  With each Defendant, the conviction is made on summary conviction leading to a consideration of a surcharge of $100 each. The persons involved are not well-to-do persons. They have an economic life style that is very humble. However, there is a means of granting them significant time to pay the surcharges. The Crown has indicated a willingness to allow 2 years for payment. I  might add that if there were some of the surcharges still outstanding at the end of 2 years, the person could apply for another extension. The same reasoning for the individual Defendants would apply to others in general in our society. [@para33].

Third, Glass J held that the surcharge was not “too broad a sweep against persons” or an inherently “bad law” as defined in Bedford.

Tinker is the first appellate decision on the constitutional validity of the surcharge. Its impact is significant. It has resolved, for now, much debate in the provincial court over this issue: see for example the discussion in R v Frail, 2014 ONCJ 744. It is difficult to conceive of any sustainable argument that would distinguish its binding authority: see generally R v Malmo-Levine, 2003 SCC 74. Some arguments may be conceived. Those arguments are likely to fail. 




Constitutional Jurisdiction

Joseph Lloyd was convicted of three counts of possession of drugs for the purpose, contrary to section 5(2) of the Controlled Drugs and Substances Act [CDSA].  Lloyd had a prior conviction under the same section; as a result, he faced a mandatory minimum of one year.

Lloyd argued that the one-year mandatory minimum violated section 12. The sentencing judge held that the minimum did not violate section 12 as it related to Lloyd but went on to consider whether the provision would violate section 12 in a reasonable hypothetical. The court found that it did. As a result, the court “declared” that the provision was invalid.

The Crown appealed: 2014 BCCA 224.

Two aspects of the appeal are quite interesting.

First, the court considered the jurisdiction of the provincial court to consider the constitutionality of provisions.

In this context, the court noted that while a provincial court has the jurisdiction to consider any constitutional impact of a provision on the offender before it, any ruling is limited in its application to the present case. The court has no jurisdiction to make a general declaration of invalidity: “the judge in this case did, indeed, intended to make a formal declaration that the impugned provision was of no force and effect. He had no jurisdiction to make such a declaration, and, assuming that he was right to have found the impugned provision to be unconstitutional, ought to have confined himself to refusing to apply it in the case before him. I would set aside the declaration” [para 38].

Second, the court considered the proper scope of constitutional consideration by a provincial court.

In this context the court noted two points. One, in light of the fact that a provincial court ruling on the constitutionality of a provision is limited to the case before it, any consideration of the constitutionality in the context of a reasonable hypothetical might be unnecessary and inappropriate. Two, based on the more general principle that courts should restrict their rulings to the case before them it was, in the present case, inappropriate for the court to strike down the provision on the basis of a reasonable hypothetical.

The fact that a party has standing to make a constitutional argument, however, does not compel a court to rule on that argument. There is a general (though not invariable) principle that courts avoid making constitutional pronouncements when cases can be decided on less esoteric bases. Professor Hogg puts it this way:
A case that is properly before a court may be capable of decision on a non-constitutional ground or a constitutional ground or both. The course of judicial restraint is to decide the case on the non-constitutional ground. That way, the dispute between the litigants is resolved, but the impact of a constitutional decision on the powers of the legislative or executive branches of government is avoided. For the same reason, if a case can be decided on a narrow constitutional ground or a wide ground, the narrow ground is to be preferred. If a case can be decided on a rule of federalism or under the Charter, the federalism ground is the narrower one, because it leaves the other level of government free to act, whereas a Charter decision striking down a law does not. The general idea is that a proper deference to the other branches of government makes it wise for the courts, as far as possible, to frame their decisions in ways that do not intrude gratuitously on the powers of the other branches.
Peter W. Hogg, Constitutional Law of Canada (5th ed. supplemented) (looseleaf) Toronto: Thomson Carswell, 2007 (updated to 2013), §59.5, p. 59-22
In short, while Mr. Lloyd clearly had standing to challenge the validity of s. 5(3)(a)(i)(D) of the CDSA, the court was not obliged to determine that issue unless that section would have an impact on the appropriate sentence for Mr. Lloyd.
Mr. Lloyd contends that the court is required to determine the constitutionality of s. 5(3)(a)(i)(D), because "no one may be sentenced under an unconstitutional law". While there is some merit in that contention, I do not think that it can be said that Mr. Lloyd would be "sentenced under an unconstitutional law" unless that law in some way affects his sentence. Before embarking on the constitutional inquiry, therefore, the court should consider whether the impugned provision would have any effect on the sentence to be imposed. [Paras 42-44].

Lloyd is an interesting and helpful decision. Interesting in its consideration of reliance upon a reasonable hypothetical in the context of section 12. As per Lloyd, where a provision would have no possible impact on the present offender reliance on a reasonable hypothetical may be unnecessary. Helpful in that it reminds that provincial courts are limited in their constitutional powers to making a finding about the force and effect of a provision to the case before them; there is no power to make general declarations of constitutional invalidity.