B E T W E E N: )
HER MAJESTY THE QUEEN ) Mr. Daniel Brandes, for the Respondent
- and - )
KELLY JAMES KING ) Mr. Stephen Ford, for the Applicant
In this sentencing hearing, Mr. King is challenging the minimum sentence for repeated drinking and driving convictions under sections 7, 9 and 15 of the Canadian Charter of Rights and Freedoms.
I have found Mr. King guilty of operating a motor vehicle while his ability to do so was impaired by alcohol contrary to s.253(a) of the Criminal Code, operating a motor vehicle with a concentration of alcohol in his blood exceeding 80 milligrams in 100 millilitres contrary to s.253(b), operating a motor vehicle while disqualified from doing so contrary to s.259(4) and taking a vehicle without the owner’s consent contrary to s.335(1). The charge relevant to his constitutional challenge is impaired driving.
All charges arise from Mr. King’s behaviour on June 14, 2005. While disqualified from driving because of a previous conviction for driving while impaired, he drove a truck at a high rate of speed on Dundas Street in Toronto. He collided with a parked car but did not stop. Witnesses chased him in their cars until he stopped the truck, left it and ran away. The witnesses continued to chase Mr. King and when a police officer finally ordered him to stop, he did. The officer had grounds to believe that Mr. King’s ability to operate a motor vehicle was impaired by alcohol and demanded a sample of his breath. His breath samples produced readings of 225 and 206 milligrams of alcohol in 100 millilitres of blood.
Prior to trial, the prosecution served Mr. King with notice under s.727 of the Criminal Code that it would seek a greater punishment on the charge of impaired driving on the basis of his having been convicted previously of offences set out in s.255(4) of the Criminal Code. By June 14, 2005 Mr. King had been convicted five times of offences listed in s.255(4) of the Criminal Code, convictions that may require the court to impose a minimum sentence for subsequent offences. In oral submissions, Crown counsel asked the Court to rely on only two of the previous convictions, because of the time that had passed since the earlier convictions.
Once this notice under s.727 is served, I must impose a minimum penalty of 90 days imprisonment under s.255(1)(a)(iii) of the Code on the charge of impaired driving. I refer to the combination of the two sections as the statutory scheme or the sentencing scheme.
Mr. King wishes to argue for a non-custodial sentence despite the statutory scheme requiring a minimum sentence. He submits that it is a principle of fundamental justice that the judge determine the sentence. Since the prosecutor can preclude a sanction other than imprisonment by serving a notice, without any reasons or any review by the court, Mr. King submits that his right under s.7 of the Charter not to be deprived of his liberty except in accordance with the principles of fundamental justice is being violated.
He further submits that a minimum sentence that can be invoked by the prosecutor serving notice without any reasons violates his right under s.9 of the Charter not to be arbitrarily imprisoned.
Finally, he submits that the minimum sentence for his offence violates his right under s.15 of the Charter to equal protection and benefit of the law. He argues that as an aboriginal person he belongs to an enumerated class of persons that has suffered historical discrimination, particularly by disproportionate imprisonment. The statutory scheme effectively nullifies s.718.2(e) of the Criminal Code, a remedial provision that is in the Code specifically to require judges to address the over-imprisonment of aboriginal persons.
He explicitly concedes that the minimum sentence of 90 days imprisonment would not be grossly disproportionate to his offence. He agrees the statutory scheme does not violate s.12 of the Charter either generally, R. v. Garcia 2 M.V.R.(5th) 169, or in his specific case.
Section 7 of the Charter reads:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The relevant sections of the Criminal Code creating the statutory scheme read:
255(1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,
(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
(i) for a first offence, to a fine of not less than six hundred dollars,
(ii) for a second offence, to imprisonment for not less than fourteen days, and
(iii) for each subsequent offence, to imprisonment for not less than ninety days;
(b) where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and
(c) where the offence is punishable on summary conviction, to imprisonment for a term not exceeding six months.
(2) Every one who commits an offence under paragraph 253(a) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
(3) Every one who commits an offence under paragraph 253(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life.
(4) Where a person is convicted of an offence committed under paragraph 253(a) or (b) or subsection 254(5), that person shall, for the purposes of this Act, be deemed to be convicted for a second or subsequent offence, as the case may be, if the person has previously been convicted of
(a) an offence committed under any of those provisions;
(b) an offence under subsection (2) or (3) or
(c) an offence under section 250, 251, 252, 253, 259 or 260 or subsection 258(4) of this Act as this Act read immediately before the coming into force of this subsection.
(5) Notwithstanding subsection 730(1), a court may, instead of convicting a person of an offence committed under section 253, after hearing medical or other evidence, if it considers that the person is in need of curative treatment in relation to his consumption of alcohol or drugs and that it would not be contrary to the public interest, by order direct that the person be discharged under section 730 on the conditions prescribed in a probation order, including a condition respecting the person's attendance for curative treatment in relation to that consumption of alcohol or drugs.
(S.255(5) has not been proclaimed in Ontario).
727. (1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof.
(2) Where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, the court shall, on application by the prosecutor and on being satisfied that the offender was notified in accordance with subsection (1), ask whether the offender was previously convicted and, if the offender does not admit to any previous convictions, evidence of previous convictions may be adduced.
(Subsections (3), (4) and (5) omitted).
S.718.2(e) of the Criminal Code reads:
718.2 A Court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The combined effect of sections 727(1) and 255(1)(a)(iii) of the Criminal Code mandates a minimum sentence of 90 days because Mr. King has more than one previous conviction for an offence listed in s.255(4) and the prosecutor has served notice of intent to seek a greater punishment.
Although this is now the combined effect of the two sections, Parliament never intended s.727 to apply to a minimum sentence such as the one in s.255(1)(a)(iii).
It would be difficult to improve on the clear forceful legislative history that Justice Lambert of the British Columbia Court of Appeal gave in his dissenting judgment in R. v. Kumar 85 C.C.C. (3d) 417. As Justice Lambert so carefully demonstrates, the requirement to give notice in s.727 dates from a time before there were minimum sentences for drinking and driving offences and even before there were such offences. The intent of s.727 was not to require notice before a judge could impose a mandatory minimum sentence, but rather to require the prosecution to give notice of its intent to seek a higher sentence than was available for a first offence, because of higher maximums that were once available for subsequent offences. When higher maximums were replaced by minimum sentences, the notice requirement was not changed.
This explains the word “may” in the phrase “for which a greater punishment may be imposed” in section 727(1), a word that confers discretion. Section 255(1) on its face makes clear that the minimum penalties in s.255(1) are mandatory.
As Justice Lambert explains, after Parliament removed increased maximum sentences for drinking and driving in 1985, the word “may” in s.727 became inappropriate:
with that change, for the first time, the word “may” became inappropriate, but by then s. and its predecessors had become so solidly entrenched that it does not seem to have been suggested that s. no longer applied with respect to repeat drinking – driving offences. p. 427
This analysis is so convincing that were it open to me I would hold that s.727 does not apply to s.255 at all. But the reading of the two sections together is entrenched and the Ontario Court of Appeal has held that, upon the prosecution serving notice under s.727, the court must under s.255 impose a minimum sentence for a subsequent offence, R. v. Demchuk 68 O.R. (3d) 17.
Having determined that s.727 combines with s.255 in this way that Parliament never intended, Justice Lambert in Kumar goes on to hold that the sentencing scheme is contrary to s.7 of the Charter because it gives the prosecutor an absolute power to decide whether the judge must impose a minimum sentence. It is a principle of fundamental justice that sentencing is a judicial function.
The majority in Kumar agreed that since the mandatory minimum sentence applies only if the prosecutor chooses that it should, the resulting minimum sentence “must be said to have been brought about otherwise than in accordance with the principles of fundamental justice”, Kumar, p. 452, line b.
In concluding that the statutory scheme violated s.7, all three judges considered that the discretion granted to the prosecutor as to whether or not to give notice was not a fundamental discretion of the prosecutor such as the discretion to lay or withdraw a charge or proceed summarily or by indictment. Subsequent decisions of both the Supreme Court of Canada in Kreiger v. The Law Society of Alberta  3 S.C.R. 372, paragraph 47 and the Ontario Court of Appeal in R. v. Felderhof 17 C.R. (6th) 20, paragraph 53 support the conclusion in Kumar that the prosecutional discretion of whether to give notice is not a core prosecutional function. Therefore the court’s power to review the exercise of such discretion is not limited to abuses of process.
I agree with the British Columbia Court of Appeal in Kumar that the statutory scheme violates s.7 of the Charter.
In reaching this conclusion, I am necessarily disagreeing with Madam Justice McCawley in R. v. Martin 22 M.V.R. (5th) 273. Justice McCawley disagreed with the Court in Kumar. She pointed out that the appellant, Martin, conceded that the minimum penalty would not violate s.7 if there were no notice requirement. Subject to his s.15 argument, Mr. King makes the same concession; minimum sentences are constitutional.
Justice McCawley in Martin addressed the issue head on when she wrote, at paragraph 47:
The real issue is whether Parliament, by enacting a procedural safeguard that gives the Crown discretion whether to bring the mandatory minimum into play, offends the principles of fundamental justice.
Justice McCawley cites the discretion whether to lay a charge and whether to proceed by summary conviction as examples of Parliament vesting discretion in the Crown without offending the principles of fundamental justice. She relies on R. v. Power  1 S.C.R. 601 as authority for finding that there is nothing inherently wrong with Parliament delegating discretion or the prosecution exercising it. Both examples are core functions that the Supreme Court defined in Kreiger, above, and in my opinion are not relevant to prosecutorial discretion to bring a mandatory minimum sentence into play by giving or withholding notice. No one seems to have brought Kreiger to the Court’s attention in Martin.
Another reason that I find Kumar to be more persuasive than Martin is, with respect, that the Court in Martin might have mischaracterized the argument that found favour in Kumar. At paragraph 48, the Court wrote:
The main thrust of the appellant’s argument, which found favour with the majority and dissent in Kumar is that the minimum mandatory sentence interferes with judicial independence, a core constitutional principle and a principle of fundamental justice and is therefore contrary to s.7.
The Court in Kumar does not appear to have discussed the concept of judicial independence.
I find that it is a principle of fundamental justice that a judge determine sentence. Parliament can set the range, including a minimum, but cannot set a minimum which may or may not apply depending on the decision of the prosecutor, that is not subject to review by the court.
The Crown seeks to justify the violation under s.1 of the Charter, which reads:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Mr. King gave notice to both the Attorney General of Canada and the Attorney General of Ontario, but no one from the Attorney General of Canada has appeared and the prosecution has adduced no evidence to justify any Charter violation. Even accepting for the sake of argument the obvious pressing and substantial objective of the legislation as a justification for a minimum sentence, the prosecution offers no evidence of a rational connection between that objective and putting the minimum sentence into the full control of the prosecutor. It would be difficult to establish such a rational connection, given the analysis in Kumar that the notice requirement was never even intended to apply to minimum sentences. While the majority in Kumar was satisfied in that case that the statutory scheme was justified, on the evidence before me I find no justification for the statutory scheme under s.1 of the Charter.
I will defer discussion of the remedy for the violation of s.7 until I have assessed the other alleged Charter breaches.
SECTION 9 OF THE CHARTER
Section 9 of the Charter reads:
Everyone has the right not to be arbitrarily detained or imprisoned.
Mr. King submits that given that the prosecutor can require his imprisonment through a minimum sentence by an ungoverned exercise of discretion without any criteria, expressed or implied, the statutory scheme violates s.9.
Any remedy for the s.7 violation must involve the Court controlling the prosecutor’s discretion. Therefore, there will be no exercise of Crown discretion without reasons or criteria that can be reviewed by the Court, no arbitrariness and no violation of section 9.
SECTION 15 OF THE CHARTER
Section 15(1) of the Charter reads:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Mr. King submits that the combined effect of sections 255 and 727 of the Criminal Code is to deprive him of the equal protection and benefit of the law based on his race and national and ethnic origin, namely being aboriginal.
An allegation of discrimination under s.15 requires a comparator group.
Mr. King framed his argument by comparing himself to those drinking drivers not subject to the mandatory minimum sentence in s.255 because the prosecutor chooses not to serve notice under s.727. He also chose as a comparator group those offenders who have been found guilty of offences not requiring a minimum sentence.
Faced with the issue framed in this way, the prosecution responded by addressing these comparator groups in the s.15(1) analysis. With respect to the first group, I agree with Crown counsel that there is no evidence that the notices are served on aboriginal persons in a manner that discriminates against Mr. King, or any other aboriginal person.
With regard to the second comparator group, I also agree that the different treatment between some guilty persons being subjected to a minimum sentence under the statutory scheme and others found guilty of offences with no minimum penalty is not a distinction based on an enumerated or analogous ground.
However, the comparator groups as described by Mr. King do not fully reflect his argument, which comes down to this:
1) Mr. King is an aboriginal person, an obvious enumerated group.
2) The Canadian penal justice system has historically discriminated against aboriginal people, generally and in particular through the excessive incarceration of aboriginal persons in a systemic manner: R. v. Gladue  1 S.C.R. 688.
3) Section 718.2(e) of the Criminal Code is Parliament’s attempt to address this historical and continuing discrimination by requiring judges to consider all available sanctions alternative to imprisonment, with particular attention to the circumstances of aboriginal offenders.
4) The sentencing scheme resulting from the combined effect of s.727 and s.255 negates s.718.2(e) by making alternative sanctions to imprisonment unavailable.
5) Precluded from considering an aboriginal person’s particular circumstances and mandated to sentence an aboriginal offender to jail, a sentencing judge may perpetuate the historical and continuing discrimination against aboriginal people.
It is apparent from the applicant’s written and oral argument that I have set out the core of his claim. It is open to the Court to refine the comparison presented by the claimant where warranted, Law v. Canada (Minister of Employment and Immigration)  1 S.C.R. 497, paragraph 58. It is equally apparent from Crown counsel’s written and oral argument that although he addressed the claim using the comparator groups as chosen by the applicant, he understood and addressed this claim. Early in his submissions, Crown counsel stated that the logical conclusion of Mr. King’s argument is that any time an aboriginal person is subject to a minimum sentence there will be discrimination within the meaning of s.15. Whether this is correct or not, for example in relation to murder, it shows that the issue raised by Mr. King has been joined and addressed. The correct comparison is non-aboriginal people to aboriginal people. I will now address this claim under the analysis directed by the Supreme Court of Canada.
That Court established a framework analysis for a claim of discrimination under s.15(1) of the Charter in Law, above, paragraph 88(3):
(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?
(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed groups or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
I now proceed to the three broad inquiries that Law directs the Court to make in relation to Mr. King’s claim.
(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?
It is first helpful to re-state the impugned law because it is not a single section, but a scheme. Section 727 combined with s.255 requires the judge to impose a sentence of imprisonment if the prosecutor serves notice. And s.255(4) provides for a minimum sentence for offences related to the combination of consuming alcohol and operating a motor vehicle. This is the impugned law.
Mr. King’s claim does not engage part (a) of this first broad inquiry (A) in Law. The law on its face applies to everyone and neither makes mention of nor has any connection to personal characteristics.
It certainly engages part (b). Mr. King submits that the impugned law, by requiring imprisonment for an aboriginal person when the Crown serves notice, fails to take into account the already disadvantaged position of aboriginal persons within Canadian society and therefore results in substantively different treatment between Mr. King and non-aboriginal persons on the basis of being aboriginal.
The disadvantaged position of aboriginal persons within Canadian society is beyond dispute. Crown counsel opened his submissions by conceding that there has been systemic discrimination against aboriginal people and that they are over-represented in Canada’s prisons. The Supreme Court of Canada in Gladue above, paragraph 34 has referred to the tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system. See also Sauvé v. Canada (Chief Electoral Officer)  3 S.C.R. 519, paragraph 60.
Before continuing, it is relevant to refer to another statement in Law. At paragraph 88(1), Justice Iacobucci wrote:
It is inappropriate to attempt to confine analysis under s.15 (1) of the Charter to a fixed and limited formula. A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach.
An unusual feature of applying the s.15 inquiry to a law that requires a judge to imprison an aboriginal person is that part of the inquiry is nearly an inquiry into an established fact. Parliament, the Supreme Court of Canada, the Royal Commission on Aboriginal Peoples, as explained in Gladue, and the prosecution in this case have recognized the discrimination against aboriginal people as aboriginal people by their disproportionate imprisonment. Not only are they over-imprisoned, but imprisonment affects them differently and more harshly:
…aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be “rehabilitated”, thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions. Gladue, paragraph 68
Mr. King submits that as discriminatory as the Canadian penal system is against aboriginal persons, Parliament has already addressed that discrimination and tried to correct it in s.718.2(e) of the Criminal Code.
In the context of interpreting s.718.2(e) of the Code, the Supreme Court of Canada in Gladue, paragraph 65 recognized that the disproportionate imprisonment:
arises from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. (my emphasis)
The Court held that what can and must be addressed, though, “is the limited role that sentencing judges will play in remedying injustice against aboriginal people in Canada.” Gladue, paragraph 65.
Mr. King is not complaining of imprisonment for himself or aboriginal people and not even submitting, at this point, that he should not be imprisoned at the conclusion of a full sentencing hearing. He concedes that imprisonment may be proper after a sentencing hearing that takes into account his particular circumstances as an aboriginal offender.
He complains of the effect of the statutory scheme, which is to preclude a judge from remedying the recognized injustice of imprisoning aboriginal persons by considering their particular circumstances as judges are directed to do by s.718.2(e), thereby negating the very section that Parliament passed to protect aboriginal people from discrimination. The effect of the impugned law that Mr. King attacks is well put by Larry N. Chartrand in Aboriginal Peoples and Mandatory Sentencing (2001) 39 Osgoode Hall L.J. 449, at page 466 although he is writing about mandatory minimum sentences for firearm offences:
To impose a mandatory minimum sentence of four years for an offence involving a firearm, in light of the purpose of s.718.2(e) -- namely to address the injustice in the existing criminal justice system -- is the equivalent of legislatively re-creating inequitable treatment against Aboriginal peoples when the federal government has already acknowledged its existence and provided for its redress.
Thus viewed, the impugned law fails to take into account the claimant’s already disadvantaged position within Canadian society by rendering inapplicable another law specifically enacted in order to take into account aboriginal persons’ already disadvantaged position within Canadian society.
Crown counsel submits that the impugned statutory scheme does not negate or render inapplicable s.718.2(e) as that section still applies in all cases, even where there is a mandatory minimum. For convenience, I set out s.718.2(e) again:
718.2 A Court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
Crown counsel submits that a minimum sentence does not negate this section because a sentencing judge must always consider s.718.2(e). He cites and emphasizes paragraph 82 of Gladue:
The provision expressly provides that a court that imposes sentence should consider all available sanctions other than imprisonment that are reasonable in the circumstances and should pay particular attention to the circumstances of aboriginal offenders. There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence.
Further, Crown counsel submits, even when s.718.2(e) is operating, it does not eliminate the possibility of prison sentences for aboriginal offenders, R. v. Gladue paragraph 88; R. v. Kakekagamick,  40 C.R. (6th) 383, R. v. Wells  1 S.C.R. 207.
Also, he submits that a mandatory minimum sentence does not render s.718.2(e) inoperative because a judge can and must still use it in determining how much above the mandatory floor to impose. Minimum sentences must be read consistently with the principles of sentencing in sections 718.1 and 718.2 of the Criminal Code, R. v. Morrisey  2 S.C.R. 90.
While these propositions of law are all correct, this submission does not address the alleged negation of s.718.2(e) because it does not address the point that paying particular attention to the circumstances of aboriginal offenders is tied to the words, “all available sanctions other than imprisonment…should be considered”. (emphasis added) The mandatory consideration of an aboriginal offender’s particular circumstances relates not only to the decision to impose imprisonment, or the length of imprisonment, but also to the possibility of there being no imprisonment.
The contextual rule of statutory interpretation in Rizzo and Rizzo Shoes Ltd.  1 S.C.R. 27 requires at the very least that words in a section be read in the context of the section itself. To the extent that a mandatory minimum sentence restricts the application of s.718.2(e) to determining the length of prison sentence and prevents it from operating to consider an alternative sanction, it does have the effect of negating s.718.2(e), a section that serves to end or reverse discrimination against aboriginal people.
The strongest argument that the mandatory minimum sentence in s.255 does not nullify s.718.2(e) of the Criminal Code is that Parliament has already excluded s.718.2(e) by its own words by including the word available. If there is a minimum sentence, alternative sanctions to imprisonment are simply not available. Any contextual interpretation of the purpose of s.718.2(e) must consider this word, available, which appears in the very section. In interpreting the section, the Supreme Court of Canada assumed the section as a whole would apply, Gladue, paragraph 82.
By including the word available, Parliament has specifically chosen to exclude offences carrying minimum sentences from the principle of s.718.2(e). This makes sense as s.718.2(e), up to the last nine words, applies to all offenders, not only aboriginal offenders. It would be blatantly contradictory to pass a section requiring a judge to consider alternative sanctions to imprisonment, in a statute containing mandatory minimum sentences of imprisonment, without excepting the offences carrying those minimum sentences.
Although s.718.2(e) applies to all offenders, the last nine words apply only to aboriginal offenders. Therefore, the absence of s.718.2(e) impacts differently on aboriginal people than others. The unavailability of a non-custodial sanction leaves a non-aboriginal person subject to a minimum sentence. The unavailability of a non-custodial sanction for an aboriginal person re-imposes the historical discrimination and injustice that aboriginal persons suffer as aboriginal persons.
Having completed inquiry (A) of Law, I find that by negating s.718.2(e) and rendering it inapplicable, the impugned law fails to take into account the claimant’s already disadvantaged position within Canadian society, resulting in
substantively differential treatment between the claimant and others on the basis of being aboriginal.
(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
The differential treatment that the statutory scheme brings about is a return to a systemic discrimination resulting in disproportionate incarceration and greater hardship by virtue of imprisonment based on being aboriginal. The enumerated grounds of race and ethnic origin and possibly national origin form the basis of the differential treatment as required by the second inquiry.
(C) Does the differential treatment discriminate by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed groups or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect and consideration?
In Law, at paragraph 88(9) the Court suggests important contextual factors influencing the determination of whether s.15 has been infringed. To some degree I have already touched on the contextual factors in inquiry (A) of Law and indeed, Justice Iacobucci recognizes that the first and third inquiries will sometimes overlap.
Pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue. Law, Part 9(A) of paragraph 88.
These contextual factors are present in this claim. The stereotyping and prejudice are directly established by the Supreme Court’s reference to institutional bias in paragraph 65 of Gladue referred to above. Not only is it prejudice and stereotyping, but it is prejudice and stereotyping in direct relation to what the impugned law deals with – imprisonment.
Furthermore, the differential effect of the impugned law not only perpetuates prejudice in relation to imprisonment, but requires the sentencing court, one of the institutions that has historically shown the bias discussed in Gladue, to perpetuate it. Not only that, but it requires the perpetuation of an institutional bias inclined to impose more prison sentences in relation to an offence involving alcohol. Substance abuse is another reason for the unbalanced ratio of imprisonment for aboriginal offenders that the Supreme Court has recognized, Gladue, paragraph 65.
The contextual factors of pre-existing disadvantage, stereotyping, prejudice or vulnerability are sufficient to show that the differential treatment brought about by the impugned law does discriminate. The other contextual factors in Law reinforce this.
Correspondence between claim factors and circumstances – Law, Part 9(B) of paragraph 88
There is a correspondence between the ground on which the claim is based and the circumstances of the claimant. The impugned legislation does not take into account Mr. King’s circumstances – indeed the required mandatory minimum ignores them.
Ameliorative Purpose – Law, Part 9(C) of paragraph 88
There is no ameliorative purpose in the statutory scheme with respect to more disadvantaged groups. There is an ameliorative section directed to this disadvantaged group, s.718.2(e), but its unavailability in the case of a minimum sentence is the very basis of the s.15 claim.
The localized and severe nature of the discrimination – Law, Part 9(D) of paragraph 88.
The effect of the impugned legislation is to return aboriginal offenders, and only aboriginal offenders, to a situation in which the historical discrimination against them is an established fact. It is localized and severe. It deprives them of the benefit of s.718.2(e), which was enacted to address the discriminatory treatment of aboriginals by sentencing courts.
Although I have entered into a specific contextualized analysis of how the impugned statutory scheme operates to affect aboriginal persons differently, I find what Larry N. Chartrand wrote about mandatory minimum firearm offences, in the article referred to above, to be apt here:
Although the three-stage section 15 test pronounced in Law v. Canada and reaffirmed in Lovelace requires a specific contextualized analysis to be applied, it is not undertaken in any detail here. In fact, the existence of discrimination is so obvious, that it would be an embarrassing waste of energy to apply the three-stage test to the circumstances of mandatory minimum sentencing of Aboriginal people for firearms-related offences. It is painfully clear that Aboriginal peoples will be discriminated against because mandatory minimum sentences do not allow courts to take into account relevant differences in order to address the underlying systemic and substantive inequality Aboriginal offenders face in the sentencing process. page 466
The impugned statutory scheme infringes s.15 of the Charter.
As in relation to s.7, the prosecution submits that any violation is justified under s.1 of the Charter, but has introduced no evidence. While the pressing and substantial objective of deterring drinking and driving has become self-evident, through decisions of the Supreme Court giving effect to s.1, there is no basis to determine that the impugned statutory scheme minimally impairs the right to equality in the absence of evidence. Nor is there evidence on which to determine proportionality between the harmful effects and the salutary effects. This is especially true in relation to this violation of s.15(1) which arises because the minimum sentence, directed at the pressing need of deterring drinking and driving, clashes with another pressing need that Parliament has already recognized – the need to ameliorate the tragic relationship of aboriginal persons to jails.
The combination of s.255 and s.727 violates s.15(1) of the Charter when the prosecution serves notice on an aboriginal offender, and the Crown has not shown it to be justified in a free and democratic society.
Section 24(1) and Section 52 of the Charter are relevant to the determination of a remedy for the infringement of Mr. King’s rights:
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Mr. King does not seek to strike down any law. He seeks a constitutional exemption from the operation of s.255(1) of the Criminal Code of Canada. The exemption he seeks from the minimum sentence in the section is not, at this point, a sentence lower than the minimum sentence. It is, as noted above, the opportunity to argue for a sanction other than imprisonment, and to put his particular circumstances as an aboriginal offender before the Court.
I begin with s.52, as I have found that the statutory scheme leading to a minimum sentence for an aboriginal offender convicted of operating a motor vehicle while impaired by alcohol violates sections 7 and 15(1) of the Charter.
The Supreme Court of Canada has posed three questions for a court applying s.52 to ask, first in Schachter v. Minister of Employment and Immigration  2 S.C.R. 679 and recently repeated in (Attorney General) v. Hislop  S.C.J. No.10, paragraph 120 as follows:
Writing for a majority of the Court in Schachter, Lamer C.J. explained that three questions must be answered when s. 52 of the Constitution Act, 1982 is engaged: (1) what is the extent of the inconsistency between the impugned provision and the Charter; (2) can that inconsistency be dealt with alone, by way of severance or reading in, or is it too inextricably linked to other parts of the legislation; and (3) should a declaration of invalidity be temporarily suspended?
The analysis is somewhat different for the s.7 violation and the s.15(1) violation because the different rights make the answer to question (1) different. I begin with s.15(1).
(1) The extent of the inconsistency between the impugned provision is that the Court cannot apply the mandatory minimum sentence in s.255 that it must apply once the prosecutor has served notice, without infringing Mr. King’s right to equality before the law under s.15. It is no greater. There is no inconsistency between the statutory scheme and the Charter for non-aboriginals and there is no inconsistency between the statutory scheme and the Charter in cases where the prosecution does not serve notice.
(2) In view of the answer to (1), the inconsistency is not too inextricably linked to other parts of the legislation that it can’t be dealt with alone.
(3) There should not be any declaration of invalidity. In the case of non-aboriginal persons, there is no violation of s.15(1). The violation of s.7 that I have found above can be remedied by judicial supervision of the prosecutor’s reasons for serving notice that will render the process in accordance with fundamental justice, as I discuss below.
The statutory scheme is of no force and effect only to the extent of the inconsistency, that is only with relation to aboriginal offenders, and then only when the Crown serves notice.
In seeking a remedy my goal is that suggested by Kent Roach in Constitutional Remedies in Canada, (loose-leaf ed.), at paragraph 8.20:
…the appropriate mix of remedial purposes depends on the particular context, the purposes of the right being violated, the relevance of competing interests and considerations of the appropriate role of the judiciary.
The appropriate remedy is to allow Mr. King to present evidence of his circumstances as an aboriginal offender, in a meaningful sense, that is, with the possibility of persuading the Court that a sanction alternative to imprisonment is appropriate.
This remedy addresses the interest of Mr. King as an aboriginal offender who has committed a drinking and driving offence in a way that recognizes Mr. King's right to equality before the law. However, it leaves the statutory scheme intact for non-aboriginals. It also leaves the Crown free to persuade the Court that a prison sentence equal to the minimum sentence or longer is appropriate despite Mr. King’s circumstances as an aboriginal offender, and promote the competing interest of deterring drinking and driving.
In the result, s.727 and s.255 remain in force and effect, but not for aboriginal offenders on whom notice is served. By the remedy of exempting Mr. King from the mandatory minimum penalty, I am extending the reach of another section of the Criminal Code, s.718.2(e), Parliament’s ameliorative response to the historical disproportionate imprisonment of aboriginal offenders. But this section also remains in force and effect. In this way, I am, in Justice Sopinka’s words in the context of reading down a statute, preserving “the objectives of Parliament in so far as is possible within constitutional parameters”, R. v. Grant  3 S.C.R. 223, paragraph 37.
The sentencing will proceed as if there were no minimum sentence in s.255(1) of the Criminal Code for the offence of impaired driving.
Section 7 Remedy
Given this remedy for the s.15 violation, it is not strictly necessary for me to deal with the s.7 remedy, but I do so for completeness.
Mr. King does not seek to strike down any section of the Criminal Code based on the s.7 violation, nor would such a remedy be appropriate. His submission is that the scheme violates his right under s.7 so long as the prosecutor can determine that there will be a jail sentence without any possible control by the Court of this important step in the Court’s process – namely sentencing a defendant; this is the inconsistency between the impugned scheme and the Charter.
There is no basis to strike down the minimum sentence provision of s.255. It is the scheme that violates s.7, not the minimum sentence in itself. Striking down the notice provision would remove Crown discretion and the offending part of the scheme, but it would be a perverse remedy in that it would remove the protection that Crown notice provides and the benefit to those on whom notice is served.
The discretion of the prosecutor can be addressed by the prosecutor stating the reasons for serving the notice in Court and satisfying the Court that it considered rational and appropriate reasons for serving the notice and binding the Court to a minimum sentence. If the judge is satisfied that the notice has been served for reasons which exclude any prosecutorial misbehaviour or irrelevant consideration and take into account all relevant factors including those which are specific to aboriginal persons, then the notice and the minimum sentence can operate in accordance with fundamental justice. There will be no transfer of the Court’s responsibility to determine sentence to the prosecutor.
The Court in Kumar did not find this type of remedy attractive. In Justice Lambert’s opinion an inquiry into the good faith of the prosecutor in a case where notice was served would necessarily invite comparison with cases where the notice was not given. Justice Lambert, with whom the majority agreed on this point stated:
Such a process is not likely to add any luster to the reputation of the administration of justice. p . 430
On this point I disagree with Justice Lambert. A review within the sentencing hearing has been contemplated by the Superior Court of Justice in Garcia, above at paragraph 167. The Ontario Court of Justice has repeatedly held inquiries into the appropriateness of a minimum sentence on different grounds.
For example, Justice Feldman inquired into the notice in R. v. Sever 34 M.V.R. (5th) 87 and R. v. Sanghera 22 M.V.R. (4th)155. Justice Wolder followed a similar procedure in R. v. James  O.J. 4999 with respect to s.12 although he found no breach of s.7. Justice Forsyth did the same in R. v. Miller 30 M.V.R. (5th) 68 even though there was some confusion as to whether the defendant was alleging a s.7 or s.12 violation.
Although the form of the hearing including the onus and the relevant criteria can evolve and be refined with experience, I do not foresee it being any more complicated than many of the hearings within a trial that the trial court holds every day. Similar hearings already take place when a defendant alleges that a minimum penalty will be grossly disproportionate in their particular case and violates s.12 of the Charter.
Absent such a hearing, I would not give effect to the sentencing scheme created by the joint operation of sections 727 and 255 of the Criminal Code and would permit Mr. King to argue for a sentence below the minimum sentence on the s.7 violation alone. Therefore, as a remedy for the s.7 violation under s.24(1) of the Charter, I find that until the prosecutor sets out the reasons for serving the notice for the Court to review, the case should proceed as if no notice had been served. Given the remedy I have ordered for the s.15 violation, such a review would serve no purpose in this case.
The combined effect of sections 255(1) and 727(1) of the Criminal Code violate sections 7 and 15(1) of the Charter and the violations are not justified under s.1.
The sentencing hearing will proceed on the basis that there is no minimum sentence for the charge of impaired driving and that sanctions alternative to imprisonment are available.
Released: May 22, 2007 Signed: “Brent Knazan”
Ontario Court of Justice