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Charter - s.12 Cruel and Unusual Treatment or Punishment (2). Thibault and Ramsay v. Attorney General of Ontario
In Thibault and Ramsay v. Attorney General of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this challenging part of an Ontario regulation [Towing and Storage Safety and Enforcement Act, 2021 (TSSEA, 2021), Reg. 167/23] on charter and ultra vires grounds. The regulation provision [Reg. 167/23, s.2(d)(i)] challenged disqualified a person from holding a "tow certificate, tow driver certificate or vehicle storage certificate" if "the person is subject to a court order, conditions of parole or an undertaking to a peace officer prohibiting him or her from, ... possessing a weapon".
The court considers the Charter s.12 ['cruel and unusual treatment or punishment'] argument, here in a professional context (tow truck drivers):(3) Section 12 of the Charter
[72] Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”.
[73] The applicants submit that the exclusion provided for in s. 2(d)(i) is “treatment or punishment.” We disagree.
The exclusion under s. 2(d)(i) does not constitute “treatment” under s. 12
[74] According to the applicants, a “treatment” within the meaning of s. 12 is a “process or manner of dealing with a person or thing” and to engage s. 12, there must be some active state process involving the exercise of state control over an individual. The applicants argue that s. 2(d)(i) satisfies this definition because it excludes a class of people from the towing industry — including people like them who have already worked in that industry for decades — without any opportunity for discretion, judicial review, or appeal. It is the state, rather than individual employers or an administrative regulatory body, which determines who can and cannot be a tow truck driver or operator. Ultimately the state is determining who can earn a living. This includes people like the applicants, who have worked as truck drivers/operators most of their adult lives. In the applicants’ submission, this points to a high degree of state control over the economic circumstances of people who are already economically vulnerable because of their criminal history.
[75] In making this submission, the applicants acknowledge that the Ontario Court of Appeal has found that the mandatory revocation of a licence as part of a regulatory regime is not “treatment or punishment”. However, they argue that s. 2(d)(i) is different. They submit that it is not providing for revocation based on misconduct; it is a pre-emptive disqualification of individuals from a trade based on a historic criminal conviction.
[76] In Canada (Minister of Employment and Immigration) v. Chiarelli, 1992 CanLII 87 (SCC), [1992] 1 S.C.R. 711, the Supreme Court dealt with a constitutional challenge to a statutory scheme pursuant to which a permanent resident could be deported if they had been convicted of an offence for which they could be sentenced to a term of imprisonment of five years or more. One of the bases for the challenge was a claim that the scheme violated s. 12 because it constituted a treatment. Sopinka J., who wrote the judgment for the Court, commented that deportation might constitute a “treatment” under s. 12. In doing so, he relied on a dictionary definition of “treatment” that defined it as “a process or manner of behaving towards or dealing with a person or thing…”. Ultimately, however, Sopinka J. did not decide the point, as he found that even if the deportation authorized in the statute under consideration could be considered a treatment, it was not cruel and unusual.
[77] In Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, the Supreme Court considered a constitutional challenge to the provisions of the Criminal Code prohibiting assisted suicide. Sopinka J., who wrote the majority decision, was prepared to assume for the purposes of the s. 12 analysis in that case, that “treatment” could include actions imposed by the state in contexts other than those of a penal or quasi-penal nature. He also allowed for the possibility that “treatment” was not confined to positive actions by the state. In particular, he cited an example of the state prohibiting smoking in prisons. This prohibition could amount to “treatment” because the prisoners affected were subject to state control. However, he found that merely being subject to the edicts of the Criminal Code, as all individuals are, did not constitute “treatment”. There had to be “some more active state process in operation, involving an exercise of state control over the individual” to amount to “treatment”: at p. 612. Merely because a state prohibition impacts an individual more seriously than another individual is not enough.
[78] In Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 CanLII 48653 (ON CA), 74 O.R. (3d) 1 (C.A.), the Ontario Court of Appeal found that the mandatory revocation of a physician’s licence because of sexual abuse of patients affected only economic interests, which are not Charter protected. It also considered whether it constituted “treatment” within the meaning of s. 12. The Court decided that it did not. In doing so it reviewed the Supreme Court jurisprudence on the matter and found that while the extent to which “treatment” may apply outside the penal context may not have been definitively determined, a mandatory revocation provision was very different than the other state measures that the jurisprudence has recognized as possibly including treatment — namely lobotomies, castration, and deportation.
[79] In Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482, 156 O.R. (3d) 675, the Ontario Court of Appeal addressed the constitutionality of a mandatory licence revocation provision for dental hygienists who engage in a sexual relationship with a patient. In that case the hygienist subsequently married the patient. The Court convened a five-member panel to determine if cases such as Mussani remained good law.
[80] First the Court of Appeal reiterated that the mandatory revocation of a health professional’s certificate of registration affects an economic interest that is not protected by s. 12 of the Charter. The same is true in this case.
[81] Second, the Court of Appeal once again found that while “treatment” within the meaning of s. 12 may extend beyond state action associated with criminal law, “there is no authority supporting the premise that professional regulation constitutes ‘treatment’ within the meaning of s. 12”: at para. 54.
[82] Contrary to the assertions of the applicants, the weight of this authority is that the exclusion in s. 2(d)(i) of the Regulation cannot be considered treatment within the meaning of s. 12. First, the interests affected are economic, which are not subject to Charter protection. Second, s. 2(d)(i) is analogous to the mandatory revocation of a professional licence, which the Court of Appeal has twice decided is not “treatment”. Third, as in Rodriguez, the exclusion contained in s. 2(d)(i) is just a prohibition. There is no “more active state process in operation, involving an exercise of state control over the individual”: Rodriguez, at p. 612.
The exclusion under s. 2(d)(i) does not constitute “punishment” under section 12
[83] In R. v. Wiles, the Supreme Court of Canada determined that s. 109 of the Criminal Code constitutes treatment or punishment. According to the applicants, the effect of s. 2(d)(i) is to further sanction or punish them for their crimes by providing that, even many years later, they are unable to be a tow truck driver or operator.
[84] In R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 39, the Supreme Court stated that a measure constitutes punishment if “(1) … it is a consequence of conviction that forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence, and either (2) … is imposed in furtherance of the purpose and principles of sentencing, or (3) … has a significant impact on an offender’s liberty or security interests.” Section 2(d)(i) does not satisfy this test.
[85] Section 2(d)(i) has nothing to do with sentencing. It is part of a scheme to further consumer protection and public safety objectives relating to the towing industry. It is a civil consequence that flows from the applicants’ past convictions and has nothing to do with the objective of sentencing or punishing the applicants for their past crimes.
[86] “Punishment” under s. 12 does not encompass all consequences that may flow from having a criminal conviction; a law does not become “punishment” if it imposes consequences to further an objective distinct from sentencing: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at paras. 63-65. In Chiarelli, the Supreme Court held that the mandatory deportation of permanent residents convicted of a serious crime was not punishment. Many courts have held that the mandatory suspension or denial of a driver’s licence following Criminal Code convictions is not a further punishment: see R. v. Miller (1988), 1988 CanLII 4685 (ON CA), 65 O.R. (2d) 746 (C.A.).
[87] Finally, s. 2(d)(i) does not affect the applicants’ liberty or security interests. As noted in Siemens v. Manitoba, 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 45: “The right to life, liberty and security of the person encompasses fundamental life choices, not pure economic interests.”
[88] The applicants argue that their interests extend beyond the purely economic as the inability to earn a livelihood has a profound impact on one’s dignity and psychological health. The same submission was made and rejected in Tanase. While the Court of Appeal acknowledged the significant impact that losing the right to practice one’s profession can have on a person, it confirmed at para. 42 that “[r]evocation of the appellant’s certificate of registration for violating the Code engages neither the right to liberty nor the right to security of the person.” As we have already found, the provision in s. 2(d)(i) is comparable to the provisions under consideration in Tanase, as they have the effect of depriving the applicants of their right to continue in their chosen employment. As such, it is not “punishment” within the meaning of s. 12.
Conclusion re s. 12
[89] As the exclusion in s. 2(d)(i) is neither “treatment” nor “punishment,” the applicants’ argument that it violates s. 12 of the Charter has no merit. . R. v. Pike
In R. v. Pike (Ont CA, 2024) the Ontario Court of Appeal affirms the trial judge's finding of unconstitutionality of the mandatory minimum sentence for child pornography [CCC 163.1(3)]:(c) The Mandatory Minimum for Importing Child Pornography Is Unconstitutional
[183] The s. 163.1(3) Criminal Code importing offence of which the trial judge convicted Mr. Scott carries a mandatory minimum punishment of one-year imprisonment. The trial judge declared it to be of no force or effect under s. 52 of the Constitution Act, 1982 because it violates s. 12 of the Charter, which prohibits cruel and unusual punishment. I agree. In John, this court held that the former six-month mandatory minimum for the related possession offence was unconstitutional because it applied to, for instance, an 18-year-old who inadvertently received, but failed to delete, an intimate image depicting a friend’s 17-year-old girlfriend: at paras. 38-40. As the trial judge reasoned, this same reasonable hypothetical applies, in modified form, to importing since an 18-year-old who exited and re-entered Canada with that image on their digital device could be convicted of importing. The modest added gravity of importing in this scenario relative to the reasonable hypothetical from John does not justify a one-year mandatory minimum that is double the six-month mandatory minimum that John ruled was unconstitutional. The Crown admits it has no reasonable counterargument. . R. v. Faroughi
In R. v. Faroughi (Ont CA, 2024) the Court of Appeal considered an appeal where the appellant argued successfully that the mandatory minimum for "communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18" [CCC 286.1(2)] violated Charter s.12 'cruel and unusual treatment or punishment' [see para 54,56,67-85,107-124].
. R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal considered a form of 'mootness' doctrine, here where the court might allow (and did) a Charter s.12 ['cruel and unusual'] mandatory minimum sentence challenge to the penalty for sexual assault, even though it was not necessary for the case before it:[52] The trial judge, in imposing the 12-month sentence, made no reference to the mandatory minimum for the sexual assault conviction, although her colloquy with trial counsel at the sentencing hearing confirmed the application of the mandatory minimum and clarified that, at the sentencing hearing, the appellant had not challenged the constitutionality of the mandatory minimum.
[53] The respondent submits both that the sentence was fit, and that, as a result, there is no need to consider the constitutionality of the mandatory minimum as it had no bearing on the result in this case. However, should this court proceed to consider the constitutionality of the mandatory minimum, the respondent concedes that the present case cannot be distinguished from analogous cases where mandatory minimum sentences have been struck down as a violation of s. 12 of the Charter.
[54] In R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, this court struck down the mandatory minimum sentence of 12 months’ imprisonment for sexual interference as it constituted cruel and unusual punishment under s. 12 of the Charter. This decision was based on reasonable hypotheticals posited by appellate courts across Canada: see e.g., Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400.
[55] For example, in B.J.T., at para. 73, this court referred to the hypothetical proposed in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, an analogous case to the one on appeal:In Scofield, the B.C.C.A. postulated a hypothetical where two young people meet at a party; one is almost 16, while the other recently turned 21… The two people drink alcohol and smoke marijuana, reducing their inhibitions. They go to a private bedroom where they engage in some kissing and brief sexual touching over their clothing for ten minutes. They act willingly and know each other’s ages. Neither has a criminal record. Harris J.A. concluded that a one-year sentence for that conduct would be grossly disproportionate to a proportionate sentence which would not necessarily involve imprisonment or even a conditional sentence. He also added that if the 21-year-old had a disability that reduced his moral culpability or if Gladue factors applied, ... those two characteristics of the offender could make the mandatory minimum sentence more disproportionate. [56] The respondent submits that the impugned mandatory minimum sentencing provision had no effect on the sentence, and a sentence lower than the mandatory minimum would be unfit. The provision’s constitutionality is moot and need not be decided. As the Supreme Court of Canada stated in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 18: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. [57] A similar approach was taken in R. v. Hewitt, 2018 ONCA 561, at paras. 3-5, where this court declined to hear a constitutional challenge to a mandatory minimum for trafficking firearms, stating, at para. 5, “[i]t is not necessary for us to consider the appellant’s constitutional argument because it would not affect the sentence: R. v. Chambers, 2013 ONCA 680. Even if the mandatory minimum did not apply, the three-year sentence imposed in the circumstances of this case was fit and appropriate.” See also R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 30 C.R. (6th) 1 (Ont. C.A.), at para. 59.
[58] In our view, there is no basis to conclude that the 12-month sentence imposed was not fit, nor did the trial judge commit an error of principle in her analysis of the applicable sentencing principles. She properly considered the priority of the sentencing principles of denunciation and deterrence, the appellant's intellectual disability, and the impact of the offence on the complainant.
[59] We accept that this court has discretion in this case as to whether to consider the constitutional challenge to s. 271(a) of the Criminal Code, given the conclusion that the sentence of 12 months was otherwise fit. In our view, that discretion should be exercised in favour of deciding the issue, given the importance of clarity and certainty as to the applicability of the analysis in B.J.T. to the mandatory minimum for sexual assault.
[60] In our view, B.J.T. is not distinguishable. The hypotheticals cited in B.J.T. could also have been prosecuted as sexual assault of a minor. On that approach, those hypotheticals would also attract a minimum sentence of one-year under the provision impugned in this case. The respondent accepts that if a one-year sentence is grossly disproportionate for the hypothetical facts, this conclusion does not vary based on whether the facts are labelled sexual interference or sexual assault of a minor.
[61] This conclusion compels a holding that the one-year minimum sentence at issue in this case offends s. 12 of the Charter. The respondent does not argue that the minimum sentence is saved by s. 1 of the Charter. We note that this conclusion is consistent with several trial court decisions prior to B.J.T. holding that the mandatory minimum of 12 months for sexual offences is unconstitutional: see e.g., R. v. Gordon, 2018 ONSC 6217, at paras. 14-18, citing, inter alia, R. v. Hussein, 2017 ONSC 4202; and R. v. M.L., 2016 ONSC 7082, 367 C.R.R. (2d) 268. For trial and appellate decisions in other jurisdictions, see R. v. MacLean, 2021 NLCA 24, at paras. 49-50, and the cases cited therein.
[62] For these reasons, while the sentence of 12 months imposed on the appellant is affirmed, the mandatory minimum for sexual assault set out in s. 271(a) of the Criminal Code is unconstitutional, and pursuant to s. 52(1) of the Constitution Act, 1982, of no force or effect. . R. v. Bertrand Marchand
In R. v. Bertrand Marchand (SCC, 2023) the Supreme Court of Canada strikes down the mandatory minimum sentencing 'child luring' provisions of CCC 172.1(2)(a-b) under Charter s.12 ['cruel and unusual treatment or punishment'].
In these quotes the court considers Charter s.12 ['cruel and unusual punishment'] and 'mandatory minimum sentences':[4] A thorough analysis reveals that these mandatory minimum sentences infringe the Charter’s s. 12 protection against cruel and unusual punishment. The mandatory periods of incarceration apply to such an exceptionally wide scope of conduct that the result is grossly disproportionate punishments in reasonably foreseeable scenarios.
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[104] Recently, this Court reaffirmed and clarified the framework for constitutional challenges to mandatory minimum sentences under s. 12. Whether the mandatory minimum sentences in s. 172.1(2)(a) and (b) are unconstitutional requires a two-stage inquiry that involves a contextual and comparative analysis (R. v. Hills, 2023 SCC 2, at para. 40; R. v. Bissonnette, 2022 SCC 23, at para. 62). First, a court must set a fit and proportionate sentence for the individual offenders before the court and possibly other reasonably foreseeable offenders (Hills, at para. 40; see also Bissonnette, at para. 63; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 77). Second, a court must determine whether the mandatory minimum requires imposing a sentence that is grossly disproportionate to the otherwise fit and proportionate sentence (Hills, at para. 40; Bissonnette, at para. 63; Nur, at para. 46; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1072). This involves consideration of the scope and reach of the offence, the effects of the penalty on the individual or reasonably foreseeable offender, and the penalty and its objectives (Hills, at para. 122).
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[107] The present constitutional analysis does not disturb the maximum sentence established by Parliament, the sentencing range for luring affirmed in Morrison or this Court’s clear guidance in Friesen. The sole question is whether the mandatory minimum sentences in s. 172.1(2), which deprive courts of the ability to “tailor proportionate sentences at the lower end of a sentencing range” (Nur, at para. 44), impose cruel and unusual punishment in reasonably foreseeable cases.
[108] Put simply, the constituent elements of the child luring offence are so broad and unconstrained as to capture conduct that is only remotely related to the heart of the offence (see, e.g., Hills, at para. 122). This is ultimately what makes the mandatory minimum provisions constitutionally suspect. Parliament could have limited the conduct captured by the mandatory minimums or built in a “safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment” (R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 36); it did not do so here. As with any other challenged provision, this Court must carefully evaluate the constitutionality of the mandatory minimum sentences at issue.
[109] For a mandatory minimum sentence to be found unconstitutional pursuant to s. 12 of the Charter, it must be “so excessive as to outrage standards of decency” (Hills, at para. 109, citing R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 45; Lloyd, at para. 24, citing R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, at para. 4, citing Smith, at p. 1072). Only on “rare and unique occasions” will a sentence infringe s. 12 (Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] 2 S.C.R. 1385, at p. 1417). As I outline below, the mandatory minimum sentences for luring meet this high threshold and must be struck. Although the mandatory minimum penalties are not grossly disproportionate as applied to Mr. Bertrand Marchand and H.V., they are when applied to reasonably foreseeable scenarios.
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C. A Fit Sentence for the Representative Offenders
[122] In addressing the first stage of the s. 12 analysis and in setting the fit and proportionate sentence for the particular or representative offender, courts must define as specific a sentence as possible (Hills, at para. 94). “Scrupulously selecting a precise and defined sentence also supports an analytically fair and principled result at the second stage of the s. 12 inquiry” (para. 65). The comparative exercise central to the gross disproportionality analysis requires careful adherence to established sentencing principles in the first stage. To determine the fit and proportionate sentence for the representative offenders at bar, the Court must consider the sentencing objectives as set out in ss. 718 and following of the Criminal Code. Any court determining a fit sentence for a representative offender must examine any aggravating and mitigating factors at play and exercise restraint in imposing terms of incarceration (s. 718.2(d) and (e)). Sentencing judges and appellate courts must not magnify aggravating factors or narrow mitigating ones to reach desired conclusions.
[123] Section 718.1 directs that sentences “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Additionally, s. 718.01 directs judges to give primary consideration to denunciation and deterrence when sentencing offences involving abuse against children. At the same time, judges do retain judicial discretion to weigh other relevant sentencing objectives in the circumstances. Courts must individualize the sentence by accounting for the gravity of the offence, the offender’s individual circumstances and the offender’s moral culpability (R. v. Parranto, 2021 SCC 46, at para. 44; Lacasse, at para. 12; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 51). Even where Parliament has directed that the objectives of denunciation and deterrence are paramount at sentencing, judges must apply all the principles mandated by ss. 718.1 and 718.2 to craft a sentence that “furthers the overall objectives of sentencing” (Ipeelee, at para. 51). Deference to Parliament’s objectives is not unlimited; to ensure respect for human dignity, the door to rehabilitation must remain open (Bissonnette, at paras. 46 and 85; Hills, at paras. 140-41; Nasogaluak, at para. 43). At paras 134-167 the court concludes that the mandatory minimum sentencing provisions are 'grossly disproportionate' in light of the Charter s.12 cruel and unusual protections.
The court concludes on this 'mandatory minimum sentencing' issue:V. Conclusion
[168] Parliament is entitled to create criminal offences for broad purposes and with wide applications. Similarly, it may prioritize deterrence and denunciation in the crafting of fit and proportionate sentences and impose high maximum sentences to convey its view of the gravity of a particular offence.
[169] However, when it imposes a mandatory minimum sentence for a given offence, which applies to all cases without discretion or discernment, it runs the risk of creating a grossly disproportionate and unconstitutional penalty. Exceptionally broad offences, even inherently serious ones, can be committed in a variety of ways and with different levels of harm and moral culpability. A predatory adult who communicates by means of telecommunication over a long period of time to manipulate a child for the purpose of facilitating one of the secondary offences in s. 172.1(1) may well merit a custodial sentence considerably in excess of the mandatory minimum. On the other hand, there will be cases in which the gravity of the offence and the degree of moral blameworthiness of the offender may not merit a custodial sentence at all — and in which the public would be shocked to hear that a legislated period of imprisonment automatically applies. . R. v. Bertrand Marchand
In R. v. Bertrand Marchand (SCC, 2023) the Supreme Court of Canada strikes down the mandatory minimum sentencing 'child luring' provisions of CCC 172.1(2)(a-b) under Charter s.12 ['cruel and unusual treatment or punishment'].
At paras 114-121, 124-133 and 148-152 the court sets out it's Charter s.12 'reasonably foreseeable scenarios', whereby the court explores hypothetical scenarios in order to examine constitutionality. This is a relatively new - an essentially 'evidentiary' technique - that the court allows in Charter s.12 cases.
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