R. v. Goltz

R. v. Goltz
Collection
Supreme Court Judgments
Date
1991-11-14
Report
[1991] 3 SCR 485
Case number
21826
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 21826
Decision Content
R. v. Goltz, [1991] 3 S.C.R. 485
Her Majesty The Queen Appellant
v.
Willy Arthur Goltz Respondent
and
The Attorney General for Ontario and
the Attorney General of Manitoba Interveners
Indexed as: R. v. Goltz
File No.: 21826.
1991: June 7; 1991: November 14.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Cruel and unusual punishment ‑‑ Minimum sentence ‑‑ Provincial motor vehicle legislation providing for mandatory minimum sentence of seven days' imprisonment together with fine for first conviction of driving while prohibited ‑‑ Whether mandatory minimum sentence infringes s. 12 of Charter ‑‑ If so, whether infringement justified under s. 1 of Charter ‑‑ Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 88(1)(c) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 12 .
Respondent was found guilty of driving while prohibited under s. 86(1)(a)(ii) of the B.C. Motor Vehicle Act, contrary to s. 88(1)(a). Section 88(1)(c) prescribes a minimum penalty of seven days' imprisonment and a $300 fine for a first conviction of driving while prohibited under s. 84, 85, 86 or 214. The provincial court found that the provision did not infringe the guarantee against cruel and unusual punishment in s. 12 of the Canadian Charter of Rights and Freedoms and imposed the minimum sentence. On appeal, the county court found that the sentencing provision violated s. 12 of the Charter and could not be justified under s. 1 . That determination was upheld by the Court of Appeal. The constitutional questions before this Court queried whether s. 88(1)(c) of the Motor Vehicle Act infringes s. 12 of the Charter and, if so, whether the infringement is justified under s. 1 .
Held (Lamer C.J. and McLachlin and Stevenson JJ. dissenting): The appeal should be allowed. The mandatory minimum sentence imposed pursuant to s. 88(1)(c) of the Motor Vehicle Act for a first conviction of driving while prohibited does not infringe s. 12 of the Charter when the prohibition from driving is made pursuant to s. 86(1)(a)(ii) of the Act. Other prohibitions from driving, violation of which also triggers the mandatory minimum sentence in s. 88(1)(c), are not at issue in this appeal.
Per La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: The general test for determining whether a punishment is cruel and unusual within the meaning of s. 12 is one of gross disproportionality, which must consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case. Other factors which may legitimately inform an assessment are whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, whether there exist valid alternatives to the punishment imposed, and to some extent whether a comparison with punishments imposed for other crimes in the same jurisdiction reveals great disproportion. The test is not one which is quick to invalidate sentences crafted by legislators. It will only be on rare occasions that a court will find a sentence so grossly disproportionate that it violates s. 12 of the Charter .
There are two aspects to the analysis of invalidity under s. 12 . One aspect involves the assessment of the challenged penalty or sanction from the perspective of the person actually subjected to it, balancing the gravity of the offence in itself with the particular circumstances of the offence and the personal characteristics of the offender. If it is concluded that the challenged provision provides for and would actually impose on the offender a sanction so excessive or grossly disproportionate as to outrage decency in those real and particular circumstances, then it will amount to a prima facie violation of s. 12 and will be examined for justifiability under s. 1 of the Charter . If the particular facts of the case do not warrant a finding of gross disproportionality, there may remain another aspect to be examined, namely a Charter challenge or constitutional question as to the validity of a statutory provision on grounds of gross disproportionality as evidenced in reasonable hypothetical circumstances.
The constitutional questions in this case are restricted in focus to the particular form of prohibition to which respondent was subjected under s. 86(1)(a)(ii) of the Act. In relation to the particular offence and respondent's personal situation, s. 88(1)(c), applied in a severed fashion in respect of s. 88(1)(a) and s. 86(1)(a)(ii), does not infringe s. 12 of the Charter . Commission of the offence specified by ss. 86(1) (a)(ii) and 88(1) is grave. The gravity of the offence must be assessed in light of the legislative purpose and the underlying driving offences giving rise to the prohibition. An order of prohibition made under s. 86(1) (a)(ii) is aimed in large measure at safeguarding the health and lives of citizens using the highways of a province, as reflected in the requirements that the prohibited individual must have built up an "unsatisfactory driving record" and that the prohibition be "in the public interest". Only bad drivers with an unsatisfactory driving record are prohibited under s. 86(1) (a)(ii) because it is especially those drivers who are dangerous to innocent citizens using the roads in a responsible manner. The Act's emphasis on the promotion of responsible driving and penalizing of irresponsible driving is further reflected in the requirement in the offence that a person knowingly drive while prohibited. As well, because the offence is difficult to detect, there is a great temptation on the part of many prohibited drivers to commit it, and a legislature may therefore rationally conclude that for the purpose of deterrence a serious penalty must attach to it. The gravity of the offence of driving while prohibited is made more obvious upon review of the Act's procedural safeguards, which ensure that only bad drivers will be prohibited from driving under s. 88(1)(a) in application to s. 86(1) (a)(ii).
Having been prohibited from driving, respondent knowingly and contemptuously violated the prohibition. There was no indication that he was urgently required to drive his car on the day in question, nor was there any submission as to a relevant personal characteristic of his that would justify a mitigated or lesser sentence than the mandatory minimum. The effects of the sentence cannot reasonably be said to outrage standards of decency or be seen as grossly disproportionate to the wrongdoing. The effect of the seven‑day sentence is lighter than might first appear, since the sentence can be fashioned to be fully served on a few weekends, as in this case.
It is unlikely that the general application of the offence would result in the imposition of a grossly disproportionate sentence amounting to cruel and unusual punishment. Respondent has not discharged the onus of demonstrating a reasonable hypothetical circumstance in which enforcement of the statute would violate s. 12 . The regulatory system of penalty points and internal reviews guarantees that it will be exceptionally rare that a so‑called "small offender" will ever be subjected to the minimum penalty in s. 88(1)(c). By divorcing the offence of driving while prohibited from the various infractions which led up to the prohibition, the Court of Appeal accorded insufficient weight to the gravity of the offence and to the relatively high threshold for its commission.
Per Lamer C.J. and McLachlin and Stevenson JJ. (dissenting): The mandatory minimum sentence of seven days' imprisonment plus a fine would in some cases be clearly disproportionate and shocking to the Canadian conscience, and hence violate the guarantee against cruel and unusual punishment in s. 12 of the Charter . The provision cannot be saved under s. 1 of the Charter because it is overbroad: no obvious or probable need for a deterrent which has such an indiscriminate reach has been demonstrated.
Rather than alleviating the particular offences from the purview of s. 88(1)(c) on a case‑by‑case basis, the Court should strike out the mandatory minimum sentence. An analysis which proceeds by severing potentially offending parts of s. 88 fails to answer the question posed on this appeal.
Furthermore, severing the reference in s. 88 to prohibitions other than selected cases under s. 86 of the Act has an effect analogous to reading down the statute, or applying the doctrine of constitutional exemption. To address s. 88 as though it referred only to prohibitions under s. 86 is to address a different scheme than that enacted by the legislature and leaves the constitutional status of the scheme uncertain, which runs counter to the fundamental principle that laws whose violation can result in imprisonment should be clear, certain and ascertainable.
Cases Cited
By Gonthier J.
Considered: R. v. Smith, [1987] 1 S.C.R. 1045; referred to: R. v. Williams (1988), 26 B.C.L.R. (2d) 67; R. v. Konechny (1983), 10 C.C.C. (3d) 233; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Guiller (1986), 48 C.R. (3d) 226; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; R. v. Alston (1985), 36 M.V.R. 67; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Hundal v. Superintendent of Motor Vehicles (1985), 64 B.C.L.R. 273; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; MacKay v. Manitoba, [1989] 2 S.C.R. 357; Perka v. The Queen, [1984] 2 S.C.R. 232.
By McLachlin J. (dissenting)
R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Wholesale Travel Group Inc., [1991] 2 S.C.R 154; Perka v. The Queen, [1984] 2 S.C.R. 232.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 12 .
Constitution Act, 1982, s. 52 .
Correction Act, R.S.B.C. 1979, c. 70, ss. 1, 15, 16, 18, 19, 47.
Miscellaneous Statutes Amendment Act (No. 2), 1981, S.B.C. 1981, c. 21, s. 55.
Motor Vehicle Act, R.S.B.C. 1979, c. 288, ss. 25, 83, 84, 85, 86(1)(a)(ii), 87, 88(1)(a), (c), 94, 150(1), 214.
Motor Vehicle Act Regulations, B.C. Reg. 26/58, Division 28.
Motor Vehicle Amendment Act, 1982, S.B.C. 1982, c. 36, s. 19.
Offence Act, R.S.B.C. 1979, c. 305, ss. 77, 122.
Authors Cited
British Columbia. Motor Vehicle Task Force. Report. Victoria: The Task Force, 1980.
Robertson, Carol. "The Judicial Search for Appropriate Remedies Under the Charter : The Examples of Overbreadth and Vagueness". In Charter Litigation. Edited by Robert J. Sharpe. Toronto: Butterworths, 1987.
APPEAL from a judgment of the British Columbia Court of Appeal (1990), 43 B.C.L.R. (2d) 161, 52 C.C.C. (3d) 527, 74 C.R. (3d) 78, 47 C.R.R. 247, 19 M.V.R. (2d) 89, affirming a judgment of the British Columbia County Court (1988), 44 C.C.C. (3d) 166, 66 C.R. (3d) 236, 11 M.V.R. (2d) 120, finding mandatory minimum sentence to be cruel and unusual punishment. Appeal allowed, Lamer C.J. and McLachlin and Stevenson JJ. dissenting.
George H. Copley, for the appellant.
Kathryn Ford and Jack Thorhaug, for the respondent.
W. J. Blacklock, for the intervener the Attorney General for Ontario.
Lawrence McInnes and V. E. Toews, for the intervener the Attorney General of Manitoba.
//Gonthier J.//
The judgment of La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by
Gonthier J. -- The issue in the present appeal is whether s. 12 of the Canadian Charter of Rights and Freedoms is violated by the minimum sentence prescribed by s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, in its application to s. 88(1)(a) and s. 86(1)(a)(ii) of that Act.
I -- Statement of Facts
On May 25, 1987, Willy Goltz was prohibited from driving by the B.C. Superintendent of Motor Vehicles, for a three-month period, pursuant to s. 86(1)(a)(ii) of the Motor Vehicle Act ("the Act"). The respondent had accumulated numerous penalty points for a variety of driving infractions, causing the Superintendent to deem the respondent's driving record unsatisfactory and to declare that the public interest required that he be prohibited from driving. In pertinent part, the notice of prohibition sent by the Superintendent to the respondent read:
I ... SUPERINTENDENT OF MOTOR VEHICLES, hereby give you notice that I consider it to be in the public interest to prohibit you from driving a motor vehicle under section 86(1)(a)(ii) of the Motor Vehicle Act, and you are hereby prohibited.
This prohibition from driving commences on the date you receive this notice and continues for a term of 3 months.
...
I will consider any submissions in writing that you may wish to make as to why this prohibition order should be cancelled or should have a shorter term than set out above.
Your five year driving record is attached.
The specific nature of the respondent's infractions and the total of his accumulated points were not pleaded at trial, nor in the Court of Appeal.
On June 13, 1987, the respondent was stopped by an R.C.M.P. officer while driving a motor vehicle which the officer alleged was speeding. The respondent received a ticket for the alleged infraction, and upon discovery that he had been prohibited from driving, was given a "notice to appear", to answer a charge under s. 88(1) of the Act.
At trial in Provincial Court, the respondent was found guilty of the offence of driving while prohibited and was sentenced to the minimum penalty of seven days' imprisonment, to be served intermittently on consecutive three-day weekends, and a $300 fine, to be paid within three months of the date of judgment. The constitutional validity of the minimum sentence was argued before the Provincial Court, which concluded that s. 12 of the Charter was not violated by s. 88(1) of the B.C. Motor Vehicle Act.
The respondent appealed the Provincial Court decision to the County Court of British Columbia where Hogarth Co. Ct. J. held that the sentencing provision in s. 88(1)(c) violated s. 12 of the Charter and could not be justified under s. 1 . That determination was later upheld by the decision of the British Columbia Court of Appeal, which determination forms the subject matter of this appeal.
II -- Relevant Legislation
Motor Vehicle Act, R.S.B.C. 1979, c. 288
86. (1) Notwithstanding that a person is or may be subject to another prohibition from driving, where the superintendent considers it to be in the public interest, he may, with or without a hearing, prohibit the person from driving a motor vehicle
(a) where the person
...
(ii)has a driving record that in the opinion of the superintendent is unsatisfactory,
87. (1) Every person who is prohibited from driving a motor vehicle under section 86 may, within 30 days after he receives notice of prohibition from driving a motor vehicle, appeal the prohibition to a County Court.
88. (1) A person who drives a motor vehicle on a highway or industrial road knowing that
(a)he is prohibited from driving a motor vehicle under section 84, 85, 86 or 214, or
(b)his driver's licence or his right to apply for or obtain a driver's licence is suspended under section 25, 83, 87, 88, 94 or 214X as it was before its repeal and replacement or its amendment came into force pursuant to the Motor Vehicle Amendment Act, 1982,
commits an offence and is liable,
(c)on a first conviction, to a fine of not less than $300 and not more than $2 000 and to imprisonment for not less than 7 days and not more than 6 months ...
Motor Vehicle Act Regulations, B.C. Reg 26/58, as amended, Division 28 -- Point System
28.01 When the superintendent is satisfied that a person has committed an offence or a traffic rule violation by breaching a provision described in the schedule, the superintendent shall record on the driving record of that person the number of point penalties for that breach as set out in the schedule.
Canadian Charter of Rights and Freedoms
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
III -- Judgments in the Courts Below
B.C. Provincial Court, Surrey, B.C.
The Trial Court decided it was bound by the decisions of the Vancouver County Court in R. v. Williams (1988), 26 B.C.L.R. (2d) 67, and the B.C. Court of Appeal in R. v. Konechny (1983), 10 C.C.C. (3d) 233, to hold that s. 88(1) of the Act was valid and did not amount to the imposition of cruel and unusual punishment in terms of s. 12 of the Charter . It sentenced the respondent to seven days' imprisonment, to be served intermittently, over the course of consecutive three-day weekends.
Westminster County Court ((1988), 44 C.C.C. (3d) 166)
Judge Hogarth in the County Court of Westminster reviewed the relevant jurisprudence, including the decision of the Supreme Court of Canada in R. v. Smith, [1987] 1 S.C.R. 1045, before deciding that it was a certainty that sooner or later the prescribed penalty in a given case would be outrageous. Applying the test of gross disproportionality established by the majority in Smith, he determined that, in combination, ss. 88(1)(a) and (c) violate s. 12 of the Charter . He further held that the violation could not be justified under s. 1 of the Charter .
British Columbia Court of Appeal ((1990), 43 B.C.L.R. (2d) 161)
The Court of Appeal, speaking unanimously through Wood J.A., upheld the decision of Hogarth Co. Ct. J. In its reasons for judgment, the Court noted that the test of cruel and unusual punishment employed by the majority in Smith was significantly different from that used in Konechny, supra, and that the emphasis in Smith on the personal characteristics of the offender and the particular circumstances of the offence was to be accorded great weight.
Despite the Court of Appeal's focus on the particular circumstances of a case, it compared the enforcement and sentencing provisions in s. 88 with those of other offences. It found that there was "little in the way of intrinsic danger to the community at large" by a commission of the offence of driving while prohibited and that, as a consequence, there was little justification for a minimum sentence of seven days' imprisonment. As Wood J.A. expressed this idea, at p. 170:
It is, after all, the nature of the driving, and not the fact that such driving is prohibited, which represents a danger to society. And yet, significantly, for many types of driving which the statute clearly identifies as dangerous, such as speeding, disobeying traffic control devices and driving without due care and attention, not only is there no required minimum term of imprisonment upon conviction, but the maximum punishment prescribed in each case is a number of penalty points, which are noted on the offender's driving record....
When one looks to the criminal law, it is evident that there are many serious crimes the commission of which presents a real danger to society for which no mandatory minimum sentence is prescribed by the Criminal Code .
. . .
A comparison of the relative severity of those many offences at law which do not carry a mandatory jail term as punishment for a first conviction with that of the offence here under consideration leads me to the conclusion that there is no reason, in principle, why the latter must carry a mandatory minimum punishment of seven days' imprisonment.
The court stressed that the offence of driving while prohibited must be assessed on its own, without considering the offences and infractions which led up to the prohibition, at p. 173:
The circumstances of the offence which are relevant to the tests under consideration are those related to the driving which is prohibited, and not those which led to the prohibition. If a sentence of seven days is wholly disproportionate in any given case ... its constitutionality cannot be salvaged on the grounds that it is in some way justified as a form of supplementary punishment for offences of which the offender has already been convicted and for which he has already been punished.
In reflecting on hypothetical circumstances which might infringe s. 12 , and emphasizing that there are an unlimited number of different circumstances under which the offence could be committed, the court proceeded to find a violation of s. 12 based on its view that "inevitably there will be cases where a mandatory minimum sentence of seven days' imprisonment, plus a fine of $300, will be so grossly disproportionate to what would otherwise have been appropriate that to impose such a sentence will clearly offend against s. 12 of the Charter " (p. 172). The court also noted that while a defence of necessity might in rare cases save an exceptional offender from the punishment prescribed by s. 88(1)(a), that defence would not eliminate the certainty that sooner or later a case of gross disproportionality would arise.
Finally, the court held that while the objective of protecting the public from bad drivers was important, and was rationally connected to the legislative purpose underlying the minimum sentence, namely to deter prohibited drivers from violating that prohibition, nevertheless the seven-day minimum did not impair the s. 12 right as little as possible, so it was not justifiable under s. 1 of the Charter . In its opinion, this conclusion was reinforced by the fact that no other province in Canada had thought it necessary to impose a mandatory minimum prison sentence on drivers found violating an official prohibition. The B.C. Court of Appeal therefore struck down the minimum punishment provided by s. 88(1)(c), and directed that the matter of the appropriate sentence be remitted to the Trial Court.
IV -- Issues
The issues raised in this appeal are the following constitutional questions stated by Lamer C.J. on September 11, 1990:
1.Does the mandatory minimum sentence of seven days' imprisonment, together with a fine of $300, imposed pursuant to s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, for a first conviction of driving while prohibited infringe or deny rights and freedoms guaranteed by s. 12 of the Canadian Charter of Rights and Freedoms ?
2.If the mandatory minimum sentence imposed pursuant to s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, for a first conviction of driving while prohibited infringes or denies rights and freedoms guaranteed by s. 12 of the Charter , is that sentence justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982 ?
Counsel for the Attorney General of British Columbia, in his oral submissions, limited his defence of s. 88(1)(c) of the Motor Vehicle Act, to prohibition orders imposed via s. 86(1)(a)(ii). I see no reason why the Attorney General of British Columbia could not so limit his case.
The constitutional questions are restricted in focus to the particular form of prohibition to which the respondent was subjected under s. 86(1)(a)(ii) of the Act. Other forms of prohibition, violation of which also trigger the mandatory minimum sentence in s. 88(1)(c), are not at issue in this appeal.
V -- Analysis
1.Does the mandatory minimum sentence of seven days' imprisonment, together with a fine of $300, imposed pursuant to s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, for a first conviction of driving while prohibited infringe or deny rights and freedoms guaranteed by s. 12 of the Canadian Charter of Rights and Freedoms ?
Background to the Challenged Provision
The Government of British Columbia established a Motor Vehicle Task Force in 1978. Its mandate was to examine the laws and procedures governing highway users in British Columbia and to recommend changes to promote safe driving habits, in order to reduce a growing number of accidents and bodily injury claims. After the Task Force issued its Report in 1980, the Legislative Assembly enacted a mandatory penalty for driving while a person's licence was suspended. It provided for a fine of not less than $300 and for imprisonment of not less than seven days (Miscellaneous Statutes Amendment Act (No. 2), 1981, S.B.C. 1981, c. 21, s. 55). In 1982, the Assembly amended the Motor Vehicle Act to apply the mandatory penalty in s. 88 of the Motor Vehicle Act to prohibitions as well as to suspensions (Motor Vehicle Amendment Act, 1982, S.B.C. 1982, c. 36, s. 19). That enactment was to give effect to one of the many recommendations of the Task Force. It is that amended provision which is challenged in this appeal.
Shortly after the mandatory sentencing provision came into effect, on August 15, 1981, the mandatory minimum sentence of seven days' imprisonment was challenged in R. v. Konechny, supra, on the grounds that it violated s. 9 and s. 12 of the Canadian Charter of Rights and Freedoms . A majority of the British Columbia Court of Appeal held that the sentencing provision did not violate the Charter because the sentence was not grossly disproportionate to the wrongdoing. Macdonald J.A. indicated, at p. 248, that the concept of cruel and unusual punishment "is restricted to punishment at a high level of severity" and agreed with McFarlane J.A. that seven days' imprisonment for driving when knowingly prohibited was not excessive.
The mandatory minimum in s. 88 of the Act was again challenged subsequent to this Court's determination in R. v. Smith, supra, with conflicting results in the County Court -- in R. v. Williams, supra, and in the case on appeal. In the case on appeal, Wood J.A. in the court below indicated at p. 168 that in his view:
... the decision of the majority in the Smith case must, in that sense, be taken to have reopened the issue which had apparently been decided in Konechny.
It is Smith which must therefore be closely examined. For it is the test set out there which led the Court of Appeal in this case to a different result than that reached in its initial review of s. 88(1)(c) in Konechny, supra.
The General Test for Determining Violations of s. 12 of the Charter
The current test for determining whether a law prescribes a cruel and unusual punishment was established in R. v. Smith, supra, per Lamer J., as he then was. The test was born of an extensive review of the history and meaning of the principle against cruel and unusual punishment, which background need not be repeated here. That test has been subsequently reaffirmed in the cases of R. v. Lyons, [1987] 2 S.C.R. 309, and R. v. Luxton, [1990] 2 S.C.R. 711.
In Smith, the Court struck down a seven-year minimum sentencing provision which applied to the offence of importing narcotics under s. 5(1) of the Narcotic Control Act. In its view, that mandatory sentence amounted to cruel and unusual punishment under s. 12 of the Charter . Each member of the Court in Smith accepted the general principle that a sentence which is grossly or excessively disproportionate to the wrongdoing would infringe s. 12 . The Smith test accords much weight to the particular circumstances of the offender and to the specific factual circumstances under which the offence was committed. The Court decided that the effects of the punishment on a particular individual are to be closely considered in assessing the constitutional validity of a prescribed sentence.
The general standard for determining s. 12 infringements is contained in the following passage from the judgment in Smith, at p. 1072:
... the protection afforded by s. 12 governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed.... The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, "whether the punishment prescribed is so excessive as to outrage standards of decency". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.
... The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. [Emphasis added.]
Constitutive Elements of the General Test of Gross Disproportionality
Smith states that a determination of gross disproportionality must consider the following essential elements as stated by Lamer J., at p. 1073:
... the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender....
One must also measure the effect of the sentence actually imposed.
The assessment must not examine a wider set of concerns at this point. Lamer J. indicated, at p. 1073:
The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves. If a grossly disproportionate sentence is "prescribed by law", then the purpose which it seeks to attain will fall to be assessed under s. 1 . Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden to achieve some important societal objective.
Although not in themselves decisive to a determination of gross disproportionality, other factors which may legitimately inform an assessment are whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, whether there exist valid alternatives to the punishment imposed, and to some extent whether a comparison with punishments imposed for other crimes in the same jurisdiction reveals great disproportion. An arbitrarily imposed sentence does not necessarily result in gross disproportionality and does not necessarily violate s. 12 . Lamer J. held that arbitrariness is "a minimal factor in the determination of whether a punishment or treatment is cruel and unusual" (at p. 1076), because s. 9 and s. 15 of the Charter are the provisions most suitably tailored to protect against it, and because s. 12 is concerned primarily with the effect of a punishment (at p. 1075).
The challenged provision of the Narcotic Control Act was held to infringe s. 12 because it was, at p. 1078:
... inevitable that, in some cases, a verdict of guilt will lead to the imposition of a term of imprisonment which will be grossly disproportionate.
This is what offends s. 12 , the certainty, not just the potential.
As will be seen below, this formulation does not envision that any or all imaginable commissions of the offence in which the punishment would be grossly disproportionate to the wrongdoing warrant a finding of infringement of s. 12 .
The foregoing elements govern application of the test of gross disproportionality under s. 12 of the Charter . It is not a simple test. It requires that multiple factors be carefully examined and weighed against each other, although each of the subordinate factors listed by Lamer J. in Smith need not be considered in every case. They are guidelines which, although not determinative in themselves, help to assess whether the punishment is grossly disproportionate (Smith, at p. 1074).
Moreover, it is clear from both Smith and Lyons, supra, that the test is not one which is quick to invalidate sentences crafted by legislators. The means and purposes of legislative bodies are not to be easily upset in a challenge under s. 12 . In Smith, the Court explained, per Lamer J., at pp. 1077 and 1072:
A minimum mandatory term of imprisonment is obviously not in and of itself cruel and unusual. The legislature may, in my view, provide for a compulsory term of imprisonment upon conviction for certain offences without infringing rights protected by s. 12 of the Charter .
. . .
We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.
This principle was confirmed by La Forest J., on behalf of the unanimous Court in Lyons, supra, at pp. 344-45:
The word "grossly", it seems to me, reflects this Court's concern not to hold Parliament to a standard so exacting, at least in the context of s. 12 , as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender.
On behalf of this Court, Lamer C.J. again affirmed this approach in Luxton, supra, involving a s. 12 challenge to a section of the Criminal Code creating a 15-year increase in minimum parole eligibility for those convicted of murder during unlawful confinement. In rejecting the challenge, Lamer C.J. cited a passage from R. v. Guiller (1986), 48 C.R. (3d) 226 (Ont. Dist. Ct.), which he had previously quoted in Smith, and which reads, at p. 725:
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 cases....
This message applies equally to the considered views of a provincial legislature for there is no material difference, from the perspective of Charter scrutiny under s. 12 , between the acts of Parliament and the acts of a provincial legislative assembly. As well, since the minimum sentence prescribed by s. 88(1)(c) is the serious sanction of imprisonment, it is not significant that s. 88 creates an offence in a provincial statute and not an offence in the Criminal Code .
Further support for the principle that s. 12 will not easily be infringed is contained in the recent decision of this Court in Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, per Cory J. The Court stated, at p. 1417:
It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter . The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter .
The deference to legislated sentences signalled by these passages is especially comprehensible when one considers the broad and varied purposes of penal sanctions. In Lyons, supra, La Forest J. articulated the common view that while sentences are partly punitive in nature, they are mainly imposed for the protection of the public. This view accords with the purpose of the criminal law in general and of sentencing in particular. He stated, at p. 329:
In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender.
This acknowledgement that sanctions serve numerous purposes underscores the legitimacy of a legislative concern that sentences be geared in significant part to the continued welfare of the public through deterrent and protective aspects of a punishment. This perspective is explicitly affirmed in R. v. Luxton, supra, per Lamer C.J., at p. 721. Thus, while the multiple factors which constitute the Smith test are aimed primarily at ensuring that individuals not be subjected to grossly disproportionate punishment, it is also supported by a concern to uphold other legitimate values which justify penal sanctions. These values unavoidably play a role in the balancing of elements in a s. 12 analysis.
Applying These Elements of the Smith Test to the Facts on Appeal
Reconciling "Particular Circumstances and Personal Characteristics" with the Need for General Assessment of the Validity of Challenged Legislation
Smith makes it plain that gross disproportionality must be determined by paying close attention both to the particular situation in which the offence occurred and to the personal traits of the offender, though it clearly does not go as far as a complete individualization of sentencing, which might put into question the constitutional validity of mandatory minimum sentences generally. Moreover, where the constitutional validity of a statutory provision is at stake, and not merely the justice of a particular sentence imposed by a judge at trial, it will often be necessary to go beyond the specific facts of the appeal, to assess the proportionality of the sentence prescribed by statute. Thus if it were determined that the minimum sentence as applied to Willy Goltz in the case on appeal was not grossly disproportionate to the wrongdoing in the unique circumstances of the case, it would not follow that s. 88(1)(c) of the Motor Vehicle Act, as a piece of general legislation applicable to all motorists in British Columbia, complies with the strictures of s. 12 of the Charter . But this raises a question: how does the test in Smith reconcile a concern for the particular circumstances of the offence with a necessarily more general assessment of the challenged sentencing provision as a whole?
The question is not greeted by an immediate or obvious answer. The jurisprudence to date exhibits significant confusion about the use of hypothetical examples which may readily demonstrate that in some imaginable circumstances a minimum penalty might result in a punishment whose effects are grossly or excessively disproportionate to the particular wrongdoing in a given case.
The Two Aspects of an Analysis of the Application of s. 12
The Court in Smith employed a hypothetical example which illustrated the potential unfairness of the minimum penalty of seven years' imprisonment for importing narcotics under s. 5(1) of the Narcotic Control Act. It painted a picture of a tourist returning to Canada from another country with one marijuana cigarette, and contrasted this "small offender" with a serious hard drug dealer convicted of importing a large quantity of heroin (at pp. 1056 and 1078). It held that the challenged sentence would be grossly disproportionate to the appropriate sentence in the case of that imaginary small offender. Thus, irrespective of the possible appropriateness of a seven-year prison term for the actual offender in Smith -- a 27-year-old with two previous convictions, caught returning from Bolivia in possession of cocaine worth more than $100,000 on the street, and who had pleaded guilty to the charge -- the provision cast too wide a net. It was invalid because its potential effects were so excessive as to outrage decency.
In this appeal also, the British Columbia Court of Appeal turned its mind, in an abstract fashion, to hypothetical circumstances b