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Charter - Mootness. 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.
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