R. v. Morrisey

R. v. Morrisey
Collection
Supreme Court Judgments
Date
2000-09-29
Neutral citation
2000 SCC 39
Report
[2000] 2 SCR 90
Case number
26703
Judges
Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise
On appeal from
Nova Scotia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 26703
Decision Content
R. v. Morrisey, [2000] 2 S.C.R. 90
Marty Lorraine Morrisey Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney General
for Ontario, the Attorney General of Manitoba
and the Attorney General of British Columbia Interveners
Indexed as: R. v. Morrisey
Neutral citation: 2000 SCC 39.
File No.: 26703.
1999: December 9; 2000: September 29.
Present: Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for nova scotia
Constitutional law — Charter of Rights — Cruel and unusual punishment — Accused convicted of criminal negligence causing death with a firearm — Criminal Code providing for minimum four‑year sentence — Whether minimum sentence constitutes cruel and unusual punishment — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C., 1985, c. C‑46, s. 220 (a).
Criminal law — Sentencing — Minimum sentences — Cruel and unusual punishment — Pre‑trial custody — Accused convicted of criminal negligence causing death with a firearm — Criminal Code providing for minimum four‑year sentence — Whether minimum sentence constitutes cruel and unusual punishment — Whether pre‑trial custody should be taken into account — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C., 1985, c. C‑46, s. 220 (a).
The accused was drinking with his friend T and T’s father at an isolated camp in the woods, where the accused also began taking prescription drugs. The accused and T successfully cut off a length of a rifle barrel. While T remained at the camp, the accused drove T’s father home. Upon returning to the camp, the accused found T lying in the top bunk in the cabin. While holding the rifle, which he knew to be loaded, he jumped up to the lower bunk in order to shake T — either to awaken him, or to get his attention. The accused lost his footing, and fell. The gun discharged, and the bullet struck T in the head, killing him instantly. The gun was not susceptible to shock discharge. There was no evidence that the accused intended to aim the gun at T. The accused pleaded guilty to criminal negligence causing death, contrary to s. 220 (a) of the Criminal Code , and unlawfully pointing a firearm contrary to s. 86(1). He had spent five months in pre‑trial custody. The trial judge found that the four‑year minimum sentence provided for in s. 220(a) violated s. 12 of the Canadian Charter of Rights and Freedoms , and sentenced the accused to two years’ imprisonment for the criminal negligence charge (taking into account pre‑trial custody) plus one year for the s. 86(1) charge. The trial judge was directed by the Court of Appeal to rehear the matter, as the Attorney General of Canada had not been given notice of the constitutional challenge. Having heard additional arguments, he maintained his original ruling. The Court of Appeal allowed the Crown’s appeal, and imposed a four‑year sentence for the criminal negligence charge, without any credit for pre‑trial custody.
Held: The appeal should be dismissed in all respects except one. The accused’s sentence should be adjusted to take pre‑trial custody into account.
Per Gonthier, Iacobucci, Major, Bastarache and Binnie JJ.: Parliament has created criminal liability under s. 219 of the Criminal Code for people whose conduct evinces a wanton or reckless disregard for the lives or safety of other people. To be convicted of an offence under s. 220, that wanton or reckless disregard must have caused the death of another person. To receive a four‑year minimum sentence, a firearm must have been used in the commission of this offence. Any behaviour that is “reasonable” cannot be “wanton”. Parliament has thus set a very high threshold that must be met in order to attract criminal liability under s. 220(a) of the Code.
Section 12 of the Charter provides a broad protection to Canadians against punishment which is so excessive as to outrage our society’s sense of decency. The court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. In assessing whether a sentence is grossly disproportionate, the court must first consider 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 him or her. As well, a court is to consider the actual effect of the punishment on the individual, the penological goals and sentencing principles upon which the sentence is fashioned, the existence of valid alternatives to the punishment imposed, and a comparison of punishments imposed for other crimes in the same jurisdiction. These contextual factors must be first evaluated in light of the particular circumstances of the offender before the court. If the sentence is grossly disproportionate for the individual offender, the court then proceeds to analyse whether the infringement of s. 12 can be justified under s. 1 of the Charter . If it is not disproportionate for the individual offender, then the court is still to consider the constitutionality of the sentence with reasonable hypotheticals.
Both the courts below agreed, and the defence has conceded, that a four‑year minimum sentence would not be cruel and unusual punishment for this offender. An analysis of the gravity of the offence requires an understanding of both the character of the offender’s actions, and the consequences of those actions. That the accused’s actions in this case had particularly grave consequences for the victim is not challenged. With respect to the character of the actions, to attract criminal liability under s. 220(a) one must demonstrate wanton and reckless disregard for life and safety. When both aspects of the gravity of the offence factor are considered, it is clear that s. 220(a) involves those who have committed a particularly grave offence. While there are mitigating factors, these do not offset the aggravating factors in this case, nor do they displace the gravity of the offence. With respect to the actual effect of the punishment on the offender, although a four‑year term in a federal penitentiary is unquestionably a serious sentence, there are no special punitive measures created to punish these offenders, and they would be eligible for parole after 16 months unless the trial judge directs otherwise. Moreover, pre‑trial custody can be counted against a minimum sentence. While it may be ideal to craft a minimum sentencing regime for this crime that would simultaneously pursue all of the traditional sentencing principles, this is not necessary for s. 12 purposes. This legislation survives constitutional scrutiny even if the sentence pursues sentencing principles of general deterrence, denunciation and retributive justice more than the principles of rehabilitation and specific deterrence.
The proper approach to reasonable hypotheticals is to develop imaginable circumstances which could commonly arise with a degree of generality appropriate to the particular offence. In both of the hypotheticals that commonly arise from the reported cases, a four‑year imprisonment would not be cruel and unusual punishment for such offenders.
The trial judge credited the accused with one year for the five months spent in pre‑trial custody, taking into account the fact that he pleaded guilty at the outset. Since this one‑year credit was not demonstrably unfit, the accused must serve the four‑year minimum sentence, less the one‑year credit for pre‑trial custody.
Per McLachlin and Arbour JJ.: The four‑year minimum sentence provided for in s. 220 (a) of the Criminal Code is not so excessive or grossly disproportionate as to constitute cruel and unusual punishment for this offender in the particular circumstances of this case. Because the offence of criminal negligence causing death with a firearm is so fact‑driven, however, it cannot be concluded that the four‑year minimum sentence is not grossly disproportionate for “any” reasonable hypothetical offender. It is impossible to canvass, with the requisite richness of factual details, the many varied circumstances in which a charge of manslaughter could arise, even when the factual scenarios are restricted to manslaughter by criminal negligence, and involving the use of a firearm. Furthermore, real cases, representing situations that have arisen, must be seen as reasonable hypotheticals for purposes of a s. 12 analysis, no matter how unusual they may appear.
To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, in particular, in ss. 718 , 718.1 and 718.2 of the Criminal Code . By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The mandatory minimum sentences for firearms‑related offences must therefore act as an inflationary floor, setting a new minimum punishment applicable to the so‑called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. The proper approach to the interpretation of the constitutional validity of mandatory minimum sentences, under the guidance of the jurisprudence of this Court, is to give effect to this inflationary scheme, except when the statutory impossibility of going below the minimum is offensive to s. 12 of the Charter , where the mandatory minimum requires the imposition of a sentence that would be not merely unfit, which is constitutionally permissible, but rather grossly disproportionate to what the appropriate punishment should be.
There will unavoidably be a case in which a four‑year minimum sentence for this offence will be grossly disproportionate. Since the inflationary effect of the mandatory floor is likely to increase all penalties for this offence, there will arguably be fewer such cases for which four years will be grossly disproportionate and therefore unconstitutional. Nonetheless, in light of the variety of conduct captured by this prohibition, it is likely that there will continue to be some. In general terms, gross disproportionality is likely to manifest itself in the context of spousal abuse, for example. Another type of situation in which the four‑year mandatory minimum sentence under s. 220(a) could be found to violate s. 12 involves police officers or security guards who are required to carry firearms as a condition of their employment and who, in the course of their duty, negligently kill someone with their firearm. While the law will of course hold such persons to a high standard of care in the use and handling of their firearms, it is nonetheless conceivable that circumstances could arise in which a four‑year penitentiary term could constitute cruel and unusual punishment. The constitutionality of s. 220(a) should therefore be upheld generally, although it should not be applied in a future case if the minimum penalty is found to be grossly disproportionate for that future offender.
Cases Cited
By Gonthier J.
Applied: R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; referred to: R. v. Lefthand (1981), 31 A.R. 459; R. v. Saswirsky (1981), 6 W.C.B. 344; R. v. J.C. (1992), 58 O.A.C. 157; R. v. Bell (1992), 17 B.C.A.C. 36; R. v. Yun Ying Lee (1981), 6 W.C.B. 344; R. v. Anderson, [1990] 1 S.C.R. 265; R. v. Davis, [1985] B.C.J. No. 1732 (QL); R. v. Morehouse (1982), 38 N.B.R. (2d) 367: R. v. McCrea, [1970] 3 C.C.C. 77; R. v. Weber, [1973] 1 W.W.R. 262; R. v. Stewart, [1993] O.J. No. 954 (QL); R. v. Olav D (1986), 1 W.C.B. (2d) 42; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Kumar (1993), 85 C.C.C. (3d) 417; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Felawka, [1993] 4 S.C.R. 199; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Pettigrew (1990), 56 C.C.C. (3d) 390.
By Arbour J.
Referred to: R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Collins, [1999] O.J. No. 2437 (QL); R. v. Gregor (1953), 31 M.P.R. 99; R. v. Smith, [1987] 1 S.C.R. 1045; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, rev’g (1998), 125 C.C.C. (3d) 43; R. v. Goltz, [1991] 3 S.C.R. 485; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; R. v. Mills (1999), 133 C.C.C. (3d) 451; R. v. McDonald (1998), 127 C.C.C. (3d) 57; R. v. Lapierre (1998), 123 C.C.C. (3d) 332; R. v. Roberts (1998), 199 N.B.R. (2d) 387; R. v. Hainnu, [1998] N.W.T.J. No. 101 (QL); R. v. Bill (1997), 13 C.R. (5th) 103 and (1998), 13 C.R. (5th) 125, rev’d on other grounds (1999), 123 B.C.A.C. 159; R. v. Scozzafava, [1997] O.J. No. 5804 (QL); R. v. McCrea, [1970] 3 C.C.C. 77; R. v. Weber, [1973] 1 W.W.R. 262; R. v. Lefthand (1981), 31 A.R. 459; R. v. Bell (1992), 17 B.C.A.C. 36; R. v. J.C. (1992), 58 O.A.C. 157; R. v. Saswirsky (1981), 6 W.C.B. 344; R. v. Yun Ying Lee (1981), 6 W.C.B. 344; R. v. Ball, [1993] O.J. No. 3207 (QL); R. v. Ferguson, [1997] O.J. No. 2488 (QL); R. v. D.E.C., [1995] B.C.J. No. 1074 (QL); R. v. Chivers, [1988] N.W.T.R. 134; R. v. Pettigrew (1990), 56 C.C.C. (3d) 390; R. v. Deane, [1997] O.J. No. 3578 (QL); R. v. Saulnier (1987), 21 B.C.L.R. (2d) 232.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 12 .
Corrections and Conditional Release Act , S.C. 1992, c. 20 , ss. 119(1) (c)(i), 120(1) , 121(1) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 203.
Criminal Code , R.S.C., 1985, c. C‑46 [am. 1995, c. 22; am. 1995, c. 39], ss. 86, 219, 220(a), 222(1), (4), (5), 234, 236(a), 239(a), 244, 272(2)(a), 273(2)(a), 279(1.1)(a), 279.1(2)(a), 344(a), 346(1.1)(a), Part XXIII, 718, 718.1, 718.2(b), (e), 743.6.
Firearms Act , S.C. 1995, c. 39 .
Authors Cited
Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 60, October 19, 1995.
Hung, Kwing. Firearm Statistics. Ottawa: Research and Statistics Division, Department of Justice, 1999.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1998), 167 N.S.R. (2d) 43, 502 A.P.R. 43, 124 C.C.C. (3d) 38, 14 C.R. (5th) 365, 53 C.R.R. (2d) 39, [1998] N.S.J. No. 116 (QL), allowing the Crown’s appeal from the decision of Scanlan J. (1997), 161 N.S.R. (2d) 91, 477 A.P.R. 91, [1997] N.S.J. No. 356 (QL), striking down s. 220 (a) of the Criminal Code . Appeal dismissed except with respect to one aspect of the Court of Appeal’s order.
Malcolm S. Jeffcock, for the appellant.
Denise C. Smith and Kenneth W. F. Fiske, Q.C., for the respondent.
Graham R. Garton, Q.C., and Theodore K. Tax, for the intervener the Attorney General of Canada.
David Finley, for the intervener the Attorney General for Ontario.
Deborah L. Carlson, for the intervener the Attorney General of Manitoba.
Geoffrey R. Gaul, for the intervener the Attorney General of British Columbia.
The judgment of Gonthier, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by
Gonthier J. –
I. Introduction
1 Is a four-year minimum sentence of imprisonment cruel and unusual punishment for the offence of criminal negligence causing death with a firearm? As I set out in these reasons, it is my view that this punishment does not constitute cruel and unusual punishment. The offence of criminal negligence causing death requires proof of wanton and reckless disregard for the lives and safety of other people – a high threshold to pass. This offence does not punish accidents. Nor does it punish the merely unfortunate. It punishes those who use firearms in a manner that represents a marked departure from the standard of care employed by a reasonable person, resulting in death. It is no trivial matter, and Parliament has treated it accordingly.
2 Considering all of the factors set out in R. v. Smith, [1987] 1 S.C.R. 1045, and R. v. Goltz, [1991] 3 S.C.R. 485, a four-year minimum sentence does not constitute a grossly disproportionate sentence, either for this individual offender, or for any reasonable hypothetical offender. Accordingly, I am of the opinion that the minimum sentence does not infringe s. 12 of the Canadian Charter of Rights and Freedoms , and the appeal is dismissed on this ground. However, the Court of Appeal failed to take into account the appellant’s pre-trial custody, and pursuant to this Court’s decision in R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, the appellant’s sentence should be adjusted to take pre-trial custody into account. This aspect of the trial judge’s decision is restored. As a result, I would dismiss the appeal in all respects except for this one aspect of the order.
II. Facts
3 The relevant facts of this appeal are not in dispute. The appellant is a woodsman and a labourer who lived with his mother in Belmont, Nova Scotia, near Truro. At the time of the offence, he was 35 years old. He had no prior criminal record. He had a drinking problem from the age of 14 until his early 30s. He stopped drinking when he entered a relationship with the victim’s sister, Anita Teed. When they broke up, the appellant started drinking again.
4 One such occasion was on May 14, 1996. On that day, the appellant was drinking with his friend, Adrian Teed, and Mr. Teed’s father, Karl Staples, at the house of Mr. Teed’s mother, Essie. The three men left the house together and travelled to the Teeds’ isolated camp in the woods. There, the three continued to drink, and the appellant began taking prescription drugs, including Valium. While Mr. Staples was inside the cabin, the appellant and Mr. Teed successfully cut off a length of a rifle barrel. The appellant told Mr. Teed that the gun was to be used to commit a robbery, but alleges that, in fact, he had intended to kill himself with the weapon. The appellant testified that he wanted to commit suicide as a result of severe depression from a recent breakup with Mr. Teed’s sister, Anita. The trial judge accepted that, at the time, the appellant was quite distraught. It was also accepted that he was very intoxicated.
5 While Mr. Teed remained at the camp, the appellant drove Mr. Staples home. Upon returning to the camp, the appellant found Mr. Teed lying in the top bunk in the cabin. While holding the rifle which he knew to be loaded, the appellant jumped up to the lower bunk in order to shake Mr. Teed – either to awaken him, or to get his attention. As might be expected in this state of intoxication, the appellant lost his footing while he jumped, and he fell. The gun discharged, and the bullet struck Mr. Teed in the head, killing him instantly. The gun was not susceptible to shock discharge. There was no evidence that the appellant intended to aim the gun at the victim.
6 The appellant dragged Mr. Teed’s body out of the cabin to a point in the woods approximately five kilometres away from the cabin, and covered it with a blanket. The appellant then drove to Essie Teed’s house. He pointed the gun at Mr. Teed’s mother, telling her to be quiet and to sit down. He told her he had already killed one person that night. Mrs. Teed calmed the appellant down, and took the rifle from him. The appellant stated that he wanted to kill himself. In order to calm the appellant down further, Mrs. Teed took the accused to see the victim’s sister, Anita Teed.
7 After this meeting, Essie Teed returned the rifle to the appellant, and told him to not bring it around anymore. The appellant disposed of the rifle in a river. The following day, he allegedly attempted to commit suicide by setting the cabin on fire while remaining inside. Forty-five minutes later, he admitted himself into the psychiatric ward of a local hospital, where he confessed to killing Mr. Teed. The appellant has always been very remorseful. At trial, the appellant pleaded guilty to criminal negligence causing death, contrary to s. 220 (a) of the Criminal Code , R.S.C., 1985, c. C‑46 , and unlawfully pointing a firearm, contrary to s. 86 of the Code.
8 Both Anita Teed and Essie Teed feared for their safety after the incident, and this formed the basis of the probation officer’s pre-sentencing report recommendation that community supervision would be inappropriate. The appellant spent five months in pre-trial custody. At his sentencing, the appellant challenged the constitutional validity of the minimum sentence imposed pursuant to s. 220 (a) of the Criminal Code . The trial judge found that the provision violated s. 12 of the Charter , and sentenced the appellant to two years’ imprisonment for the criminal negligence charge (taking into account pre-trial custody), and one year consecutive for the unlawful pointing of a firearm charge. The Crown appealed. The Court of Appeal allowed the appeal, and imposed a four-year sentence on the appellant, without any credit for pre-trial custody.
III. Judgments Below
A. Nova Scotia Supreme Court (1996), 154 N.S.R. (2d) 278
9 Scanlan J. struck down s. 220 (a) of the Criminal Code as being contrary to s. 12 of the Charter . Scanlan J. reviewed the test for s. 12 set out in Smith, supra, and Goltz, supra. He found that a four-year minimum sentence would not constitute cruel and unusual punishment for Mr. Morrisey in particular. However, he thought that it would constitute cruel and unusual punishment in other reported cases of criminal negligence causing death with a firearm: R. v. Lefthand (1981), 31 A.R. 459 (Prov. Ct.) (where the accused was charged with pointing a firearm); R. v. Saswirsky (1981), 6 W.C.B. 344 (Ont. Co. Ct.); R. v. J.C. (1992), 58 O.A.C. 157; R. v. Bell (1992), 17 B.C.A.C. 36; and R. v. Yun Yin Lee, Ont. Prov. Ct., June 8, 1981 (summarized at 6 W.C.B. 344).
10 Scanlan J. focussed on the lack of intent necessary to be convicted of criminal negligence causing death to find that the minimum sentence of four years was grossly disproportionate. He thought that there was no need for retribution in such cases. Further, specific deterrence would be impossible given the absence of intent. Although there was a legitimate objective to the legislation, which was to force people to take care while using firearms, Scanlan J. thought that the minimum sentence overreached that objective. Having found the minimum sentence to infringe s. 12 of the Charter , Scanlan J. then considered whether the infringement could be justified in a free and democratic society under s. 1 of the Charter . He held that it could not. As such, he struck down the provision.
11 Scanlan J. was of the view that a three-year sentence would be appropriate and, having reduced it by one year to credit the five months served in pre-trial detention, he imposed a sentence of imprisonment of two years for the offence of criminal negligence causing death. He imposed an additional one-year sentence, to be served consecutively, for unlawfully pointing a firearm.
B. Nova Scotia Court of Appeal (1997), 160 N.S.R. (2d) 13
12 Scanlan J. was directed by the Court of Appeal to rehear the matter, as the Attorney General of Canada had not been given notice of the constitutional challenge to s. 220 (a) of the Criminal Code . Scanlan J., having heard additional arguments, maintained his original ruling: (1997), 161 N.S.R. (2d) 91.
C. Nova Scotia Court of Appeal (1998), 167 N.S.R. (2d) 43
13 Bateman J.A. allowed the appeal. She agreed with Scanlan J. that the four‑year minimum sentence would not be grossly disproportionate for Mr. Morrisey. However, she was not prepared to find the minimum sentence to be grossly disproportionate for the hypotheticals reviewed by Scanlan J. In particular, some of the cases reviewed by Scanlan J. did not represent reasonable hypotheticals, either because the facts reported would not sustain a conviction, or because the offenders were in different circumstances (such as being a young offender).
14 The only hypotheticals that Bateman J.A. thought were reasonable were Bell, supra, and Saswirsky, supra. However, Bateman J.A. thought that a four‑year minimum sentence would not be grossly disproportionate for these offenders, as they exemplified the type of conduct that the legislation was specifically designed to prevent. Bateman J.A. held that s. 220(a) does not convict those involved in “tragic accidents” or who exercise “terrible judgment” per se, but rather, requires a wanton or reckless disregard for the lives or safety of other persons that result in death. As such, it was impossible to conceive of a “trivial offender” such as the notional single marijuana cigarette importer in Smith, supra. As a result, Bateman J.A. set aside the judgment of Scanlan J., and sentenced the appellant to the minimum penalty of four years’ imprisonment. She did not deduct any time for pre-trial custody.
IV. Relevant Constitutional and Statutory Provisions
15 Criminal Code , R.S.C., 1985, c. C-46
219. (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
...
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
Canadian Charter of Rights and Freedoms
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
V. Issues
16 On January 26, 1999, the Chief Justice stated the following constitutional questions:
(1) Does s. 220 (a) of the Criminal Code infringe the right in s. 12 of the Canadian Charter of Rights and Freedoms not to be subjected to any cruel and unusual treatment or punishment in that it establishes a minimum sentence of four years’ imprisonment for the offence of criminal negligence causing death when a firearm is used in the commission of that offence?
(2) If the answer to the first question is yes, is the infringement demonstrably justified in a free and democratic society as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms ?
VI. Analysis
A. Criminal Negligence Causing Death
17 The courts below noted the lack of reported cases of criminal negligence causing death in circumstances where the accused used a firearm. Indeed, there are few reported cases of someone who has been found by a judge or jury to be guilty of s. 220 who used a firearm. This may be partly attributable to manslaughter charges being laid in cases where criminal negligence might be involved as occurred at the outset in the present case. Almost all that exists are cases where the accused pleaded guilty to the offence, and the facts have been entered by way of an agreed statement of facts. Consequently, it might be useful to review the standard required for a conviction under s. 220(a).
18 Generally speaking, Parliament prescribes penalties in the Criminal Code to punish individuals who not only commit a wrongful act, but who also commit that wrongful act intentionally. However, even in the absence of any intent to bring about a given result, Parliament has also created criminal liability under s. 219 for people whose conduct evinces a wanton or reckless disregard for the lives or safety of other people. To be convicted of an offence under s. 220, that wanton or reckless disregard must have caused the death of another person. To receive a four‑year minimum sentence, a firearm must have been used in the commission of this offence.
19 The standard that must be met for a conviction under s. 220(a) is therefore higher than a negligence standard in the civil context. To be convicted under this provision, one must have acted in a manner that represents a marked departure from the norm: R. v. Anderson, [1990] 1 S.C.R. 265, at p. 270. Where the risk of harm is very great, as is the case in criminal negligence in the use of firearms causing death cases, it is often easy to conclude that the accused must have foreseen the consequences: Anderson, at p. 270. Nonetheless, in all cases, the Crown must prove more than the simple fact that a gun discharged, causing death. Section 220(a) is not an absolute liability offence. It requires proof of conduct which is such a marked departure from the behaviour of a reasonably prudent person as to show a wanton or reckless disregard for the life or safety of others.
20 A simple review of some of the facts of the criminal negligence cases where the accused pleaded guilty reveals the type of conduct caught by this provision. In reviewing these cases, I am not suggesting that these represent the standard that must be met in order to sustain a conviction; rather, they are simply indicative of context. In Bell, supra, the accused had inserted a spent casing of a bullet into his gun and pulled the trigger while pointing it at one of his friends. By accident, a live round had become mixed into the spent rounds and the gun discharged, killing his friend. On a sentence appeal, the Court of Appeal noted the moral blameworthiness of “play acting with a deadly weapon” (p. 37). Even more seriously, in Saswirsky, supra, a police officer played a form of Russian roulette with his girlfriend, knowing a live shell was in the gun, but mistakenly thinking the bullet was not in the firing chamber.
21 In J.C., supra, a young offender pointed a gun at his friend’s head and pulled the trigger four times, knowing that there was a single bullet in the gun. After the fourth pull, he opened the gun, smacked the top of the barrel, heard something hit the ground. He thought it was the bullet in the gun falling out. He put the gun to his friend’s head and pulled the trigger again. There was a bullet in the firing chamber and he killed his friend. J.C. thought he checked the gun, but in fact he was not careful enough. In another case, a drunk man shot his drunk friend who had himself asked to be shot at, to see if it would scare him (R. v. Davis, [1985] B.C.J. No. 1732 (QL) (C.A.)). Another drunk man did not remember loading his gun and, to scare his friend, pointed the gun at him and said “bang” as he pulled the trigger and shot him in the face; he killed him (R. v. Morehouse (1982), 38 N.B.R. (2d) 367 (C.A.)). The irresponsibility of these people in endangering the lives of their friends and loved ones is startling and deserving of criminal liability.
22 The criminal negligence provision also catches the reckless behaviour of hunters. In R. v. McCrea, [1970] 3 C.C.C. 77 (Sask. C.A.), the accused shot at a Department of National Resources Bombardier in which the victim was a passenger. The accused testified he thought it was a “hump”, and fired his high-powered rifle, killing the other hunter, without knowing what he was firing at. As such, the jury found him guilty under s. 191, the predecessor to s. 220. So too, in R. v. Weber, [1973] 1 W.W.R. 262 (B.C.C.A.), the accused shot at a 14-foot aluminum boat, thinking it to be a moose. It carried three people, one of whom was killed.
23 In R. v. Stewart, [1993] O.J. No. 954 (QL) (Prov. Div.), the trial judge gave examples of criminal negligence in the context of hunting. These included “firing across a road or from a vehicle; ... firing at shadows during false dawn; ... firing at the rustle or movement of a branch”. Simply stated, shooting without adequately determining the nature of the target is a marked departure from the behaviour of a prudent hunter. When this behaviour causes the death of an individual, criminal liability attaches under s. 220(a).
24 Any behaviour that is “reasonable” cannot be “wanton”. A person handling a gun in a reasonable way with a reasonable belief that a gun is not loaded or cannot go off, or whose gun malfunctions, or who has an ordinary accident with a gun, like dropping it and setting it off, cannot be said to be wanton and reckless. Anderson, supra, in which a man who drove through a red light while intoxicated was acquitted on a charge of criminal negligence causing death, does not preclude the Court from holding that an accident in handling firearms that involves illegal drugs or alcohol is due to objectively wanton and reckless behaviour.
25 The case of R. v. Olav D (1986), 1 W.C.B. (2d) 42 (Ont. U.F.C.), illustrates a situation where death by gunfire did not amount to criminal negligence. The accused young offender had a reasonable belief that the gun was unloaded. Detailed jurisprudence has also developed around hunting in which judges have exonerated people who had a reasonable belief that the person they shot was prey and not a person. That a hunter was camouflaged in the colours of a moose made this belief reasonable in Stewart, supra, for example. There the hunter took precautions and made a reasonable mistake. There are reasonable and unreasonable hunting accidents, just as there are reasonable and unreasonable accidents that occur with firearms in other contexts. All of these accidents are tragic, but not all of them attract criminal liability.
B. Cruel and Unusual Punishment
26 Section 12 of the Charter provides a broad protection to Canadians against punishment which is so excessive as to outrage our society’s sense of decency: Smith, supra, at p. 1072; Goltz, supra, at p. 499; R. v. Luxton, [1990] 2 S.C.R. 711, at p. 724. The court’s inquiry is focussed not only on the purpose of the punishment, but also on its effect on the individual offender. Where a punishment is merely disproportionate, no remedy can be found under s. 12. Rather, the court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. As I said in Goltz, at p. 501, “the test is not one which is quick to invalidate sentences crafted by legislators.”
27 In order to properly consider a s. 12 challenge to a punishment, the court must examine all of the relevant contextual factors. No single factor set out in Smith or Goltz is paramount: see Goltz, at pp. 501-2. In Smith, at p. 1073, Lamer J., as he then was, set out some of the relevant factors as follows:
In assessing whether a sentence is grossly disproportionate, the court must first consider 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.
28 In Goltz, at p. 500, I also noted that certain other factors were necessary for a full contextual understanding of the sentencing provision. In particular, a court is to consider: the actual effect of the punishment on the individual, the penological goals and sentencing principles upon which the sentence is fashioned, the existence of valid alternatives to the punishment imposed, and a comparison of punishments imposed for other crimes in the same jurisdiction. None of these factors will be “in themselves decisive to a determination of gross disproportionality” (p. 500).
29 These contextual factors must be first evaluated in light of the particular circumstances of the offender before the court. If the sentence is grossly disproportionate for the individual offender, the court then proceeds to analyse whether the infringement of s. 12 can be justified under s. 1 of the Charter . If it is not disproportionate for the individual offender, then the court is still to consider the constitutionality of the sentence with reasonable hypotheticals. If the sentence would be grossly disproportionate in a reasonable hypothetical case, then the only refuge for the sentencing provision can be found under s. 1.
30 What constitutes a reasonable hypothetical? In Goltz, at p. 506, I said that reasonable hypotheticals could not be “far-fetched or marginally imaginable cases”. They cannot be “remote or extreme examples” (p. 515). The reasonableness of the hypothetical cannot be overstated, but this means that it must be reasonable in view of the crime in question. In Smith, the hypothetical used to invalidate the impugned punishment was a very realistic one. There, the legislation attached criminal liability to importers of illegal narcotics, irrespective of the quantity imported. The natural and probable consequence of the legislation would be to catch individuals who could only be described as “small offenders” (p. 1080), such as the individual importing a single “joint”.
31 In Goltz, I required examples that “could commonly arise in day-to-day life” (p. 516). This was appropriate for the offence of driving while prohibited under the B.C. Motor Vehicle Act because that Act touched upon everyday life. It must be recognized that criminal negligence homicides do not easily lend themselves to resorting to reasonable hypotheticals as guides to assessing punishment as cruel and unusual as they can be committed in an almost infinite variety of ways. Nevertheless, hypotheticals remain very useful in determining whether s. 12 is violated in this case.
32 In this case, the trial judge and the Court of Appeal preferred to rest their analysis on reported cases, rather than conjuring up imagined hypotheticals. I sympathize with the approach taken by the trial judge; it is unquestionable that there is an “air of unreality” about employing creative energy in crafting reasonable hypotheticals: Smith, per McIntyre J. (dissenting), at p. 1083; R. v. Kumar (1993), 85 C.C.C. (3d) 417 (B.C.C.A.), at p. 449. However, as the Court of Appeal discovered, there are also difficulties involved with using actual cases. The facts may not be reported accurately where an individual pleads guilty to the offence, and the facts are entered by way of agreed statement. Further, a reported case could be one of the “marginal” cases, not contemplated by the approach set out in Goltz.
33 Again, it is to be remembered that the courts are to consider only those hypotheticals that could reasonably arise. Homicide is far from a common occurrence in Canada. Criminal negligence causing death with a firearm is even less common. It is thus appropriate to develop hypotheticals from the case law by distilling their common elements. Goltz requires that hypotheticals be “common” rather than “extreme” or “far-fetched”. It is sufficient when dealing with a rare and uncommon c