The Defence Toolkit – February 12, 2022

This week’s top three summaries: R v BG, 2022 ONCA 92: #stereotypes & credibility, R v Santillana, 2022 ABQB 108: #Crown Seaboyer lost, and R v Penner, 2022 BCSC 2900: #manslaughter man min struck.

R v BG, 2022 ONCA 92

[February 2, 2022] Crown Cultural Stereotyping Attack on Credibility [Reasons by B.W. Miller J.A. with J. C. MacPherson, and L. B. Roberts JJ.A. concurring]

AUTHOR’S NOTE: Stereotyping of human behaviour arises most often in sexual assault cases where evidence of the offence often comes only from the testimony of individuals. Principally, the stereotypes applied are those about sexuality and how accused or witnesses departed from stereotyped expectations of human behaviour in various circumstances. Much as those stereotypes are impermissible, so are the stereotypes applied in his case by the Crown. Here, the Crown sought to undermine the credibility of witnesses favourable to the defence on the basis of a suggestion that it was normal in their culture for women to be subservient to men and to lie under oath to protect a family's reputation. In such circumstances a clear instruction to the jury to disregard impermissible stereotyping is necessary.

Overview

[1] Following a trial by jury, the appellant was convicted of sexual interference, sexual assault and other historical offences committed against his daughter.

[2] The main issue on appeal is whether the Crown counsel at trial invited the jury to rely on impermissible racial or cultural stereotyping through her cross-examination of defence witnesses and through statements in her closing address. The question is whether the absence of a specific instruction to the jury cautioning against impermissible reasoning relying on racial or cultural stereotyping of the
defence witnesses resulted in an unfair trial. For the reasons that follow, I conclude that it did and would allow the appeal, set aside the conviction, and order a new trial

Background

[5] The complainant testified to almost daily sexual abuse by the appellant, and to the appellant regularly beating her and her sister, brother, and mother, as well as the children of the family who lived with them (the B. family). She also testified that over the years she had told members of her family (the G. family) and others about the sexual abuse, and that one of the persons she told – one of the two daughters of the B. family – told the complainant that she too had been sexually assaulted by the appellant.

[6] The appellant testified and denied the allegations. The defence called seven witnesses, including the complainant’s mother, aunt, sister, brother, and the two daughters of the B. family. The complainant testified she had told each of these witnesses about the abuse prior to her eventual disclosure to the police. Each of the witnesses denied this, and each denied having observed any sexual or physical abuse by the appellant or any signs of it.

[7] The appellant and his wife were immigrants from India. Although the complainant was born in Canada, she spent most of the first three years of her life in India, where she was raised by her grandparents and her aunt and uncle before she was sent back to Canada to live with her parents. It was profoundly shocking to her to be returned to Canada and to discover that her aunt and uncle in India were not actually her biological parents. As she grew up, the complainant frequently clashed with her parents over what she – as well as her parents and siblings – characterized at trial as a traditional Indian upbringing. The complainant’s parents imposed greater restrictions on the complainant than the parents of the complainant’s non-Indian peers at school. The complainant was denied privileges that were common among her peers, such as dating and going with friends to the mall or for sleepovers. There were restrictions on how she could dress and cut her hair and on what she watched on television. There was tension with her parents over her desire to integrate into non-Indian culture.

[8] According to the complainant, the appellant sexually abused her on a regular basis from the time she was around 6 years old and threatened he would kill her if she told. The complainant testified that it was only after sex education class when she was 13 that she realized the nature of what the appellant was doing.... The claimant testified that the sexual abuse only stopped when she was 14, after she told her mother. She testified there was a family meeting at that time where her mother confronted her father.

[9] When the complainant was 15, she had a boyfriend several years older whom she kept secret from her parents. Her boyfriend would occasionally sneak into the house to see her. The two were eventually discovered. This was traumatic for the complainant’s parents and the complainant was punished and forbidden from seeing her boyfriend again. The evidence diverged as to how the complainant was punished. The parents testified that they yelled in anger at her and she was subjected to a strict curfew, denied television viewing privileges, and given additional household chores. The complainant’s evidence was that she was severely beaten by her father.

[10] A few months later, the complainant ran away from home. The complainant testified that the reason was to escape her father’s physical and sexual abuse. ... Communicating through the police, the complainants’ parents told the complainant she should marry her boyfriend. The complainant’s evidence was that she had no intention of doing what her parents said. However, her boyfriend seized on the idea, asked her to marry him, and after he persisted, she eventually agreed. After a civil ceremony in Sarnia, they returned to Brampton for a traditional Sikh ceremony. The complainant had a daughter sometime thereafter. Within three years, the complainant was experiencing physical abuse from her husband and left the marriage with her young daughter. Since that time, she has suffered financial difficulty, instability, and poor health. She first brought her allegations against the appellant to the police in 2016.

Analysis

[11] An ethnic or national culture consists in part of shared beliefs and norms, social institutions, and patterns of behaviour. It can include duties and obligations, and other beliefs about what ought to be done and not done, and what constitutes a good life. The norms of any particular culture is a question of fact to be resolved according to evidence led at trial, including expert evidence if not a matter of everyday experience of the average person: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 241.

[12] Where relevant to a matter in issue, it is permissible for the trier of fact to consider whether the beliefs and practices of a particular culture provide some evidence about what a particular person believes, or explain that person’s apparent behaviour: R. v. Boswell, 2011 ONCA 283, 277 CCC (3d) 156, at paras. 25-26; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 124, 128-30, 133, per Cory J. It is, however, impermissible to invite the trier of fact to adopt a stereotype about cultural practices unsupported by evidence and use it to draw conclusions about a witness’s beliefs or actions.

[13] As explained more fully below, at trial the norms of Indian culture as practiced by the appellant’s family and other witnesses were first put in issue by the defence and then by the Crown, although for different purposes. The defence in its cross-examination of the complainant first raised the concept of honour for the purpose of explaining the defence theory: that the complainant married out of a sense of obligation – an obligation rooted in Indian culture – and later blamed the appellant for it. For its part, the Crown advanced three propositions related to the defence witnesses’ culture: (1) the witnesses’ culture – and specifically the concept of honour within their culture – provided them with a motive to lie; (2) one aspect of the witnesses’ culture is that the women of a household are dominated by the men and will do what they are told, and (3) the witnesses’ culture permits lying under oath. The first of these propositions was stated explicitly. The latter two were premises underlying the questions put to the witnesses on cross-examination. None were established by expert evidence, nor were they admitted by the defence witnesses. Only the first of the three – the concept of honour – had any foundation in evidence, and that was only in the context of whether the complainant felt pressure from her parents to marry after running away.

Indian culture in the Defence Theory at Trial

[14] ... The defence theory was that the appellant – as a husband and father in a traditional Indian household – parented according to the norms of that culture and the complainant resented it. Furthermore, the defence argued, the complainant attributed all of her difficulties in life – an early and unhappy marriage, early parenthood, drug addiction, poor health, financial problems – to the strictness of her parents, and particularly her father, who provoked her adolescent rebellion and pressured her to get married as a culturally appropriate resolution of the scandal of having run away with her boyfriend. The defence argued that the complainant fabricated the allegations against her father as revenge for the degree of control he had exercised over her life as she was growing up – including his role in pressing her to get married – and the suffering she believed resulted from it.

Indian culture in case for the prosecution

[16] In its closing address, the Crown appealed to the witnesses’ participation in Indian culture to make the case that the defence witnesses had a powerful motive to lie:

There’s nothing wrong with it, but the reality is that family reputations mean a great deal in the traditional East Indian culture, as a great deal depends on family reputation. The actions of one family member can tarnish the name of the entire family ... This is a traditional East Indian family. It is not easy for any family to have the patriarch labelled as a sexual abuser of his own daughter when she was a child, but in a community where the wrongdoing of one member is so significant to the other members of the family if the word gets out, imagine the shame the family is trying to protect themselves from now. (Emphasis added).

[17] Additionally, a frequent premise of the Crown’s questions on cross- examination was that the female defence witnesses were acting under the dictation of men who told them to lie, and that the norms of their culture permitted them to lie. ...

[18] The Crown argued on appeal that this was not a matter of inviting the jury to apply cultural stereotypes, but a matter of drawing individualized judgments about the credibility of the witnesses based on the evidence of how they had behaved.

[19] I do not agree. The cross-examination transcripts show the trial Crown putting questions to the witnesses based on highly pejorative assumptions about the witnesses’ culture that were not established in the evidence. The trial Crown repeatedly used phrases such as “culturally” and “in your culture” in contexts that suggested the witnesses’ answers were not believable because they were contrary to the stereotypical cultural norms – such as preserving family honour through secrecy and dishonesty – that were presumed to govern the witnesses’ behaviour. The most direct example is in the cross-examination of the appellant’s sister:

Q: And you’re saying that if [N.G.] had told you that, instead of trying to deal with it inside the family, you would have called the police.

A: Yes.

Q: You’ll agree with me that culturally that would have been a very difficult position to put yourself in.

A: No, wrong is wrong.

…

Q: And I’m going to suggest to you that once your husband and your brother found out that you were gonna go speak to the police, they told you that you couldn’t.

A: No, it did not happen that way.

…

Q: … and furthermore, now they’ve told you that you have to come here and lie and say that [N.G.] never told you this.

A: No one ever told me like that.

…

Q: I’m gonna suggest to you ma’am, that the male members of your family, both your brothers, your husband, are never gonna let you tell what you know.

A: No, that’s not the truth.

[20] A similar tack was taken with the cross-examination of one of the daughters of the B. family, N.B., after she denied having ever told the complainant that she too had been sexually abused by the appellant. The Crown pressed that she was lying for cultural reasons: ...

[21] Additionally, the Crown’s argument that the evidence established an individualized basis for concluding the witnesses were dominated by men and therefore willing to lie to hide physical and sexual abuse – primarily the evidence of the circumstances of the witnesses’ marriages – itself relied on negative cultural stereotyping that the witnesses rejected and had no evidential support.

[22] The Crown cross-examined the B. family sisters extensively about the circumstances of their marriages, which were arranged in India by their families according to Indian custom.

[24] Additionally, an unstated premise in several of the questions put to N.B. was that the marriage – as an arranged marriage – was something outside of her control and showed her to be under the domination of male relatives. ...

[26] It was perfectly legitimate for the Crown to suggest to N.B. that the circumstances of her marriage – a last-minute affair when compared to the lead- time in advance of her sister’s – supported the inference that the family was aware of allegations that the appellant had engaged in sexual abuse as the complainant alleged, and that N.B.’s marriage should be arranged before the word could get out. The premises of that question did not rely on any negative stereotyping.

[27] However, it was not fair for the Crown to suggest through its questioning that the fact the B. sisters married according to the tradition of arranged marriage is evidence they lacked agency. Both N.B. and A.B. objected to this characterization of their marriages and of themselves and there was no evidential support for it.

[28] More broadly, the effect of the Crown’s repeated use of the preface ‘in your culture’ when questioning the defence witnesses had the effect of exoticizing them in the eyes of the jury, of insinuating that they were not only different, but operated according to a different ethical system in which the obligation to tell the truth was subordinate to protecting the family from shame. ...

[29] The Crown was entitled to pursue the theory that the defence witnesses were lying to protect the appellant. Similarly, the Crown was entitled to put to the witnesses that they lacked agency, believed it was permissible to lie to protect family honour, and were in fact lying at the direction of male relatives. But where questioning is so heavily freighted with negative cultural stereotyping – stereotyping that may subconsciously resonate with the jurors even though the questions turned up empty – the questioning itself creates a risk that without some instruction from the trial judge, a jury will seize on the stereotype even though it is not established in evidence. In this case, where the Crown effectively invited the jury to conclude the witnesses were lying because their religion and culture either demanded it or excused it, there was a risk that the jury would leap from the fact that the witnesses were Indian women living in households governed by traditional Indian norms to the conclusion they were therefore less likely to be truthful witnesses.

[31] I agree that the defence’s failure to ask for an instruction is some evidence that the defence may not have viewed an instruction as necessary. But I do not agree that it was a tactical decision. The defence position was that pressure was put on the complainant to marry to save family honour. It does not follow that the defence was thereby committed to the proposition that arranged marriages are a manifestation of the subjugation of women, and any woman who contracts an arranged marriage – such as the B. ...

[34] In any event, a failure to object is not determinative and the responsibility for the jury charge ultimately falls on the trial judge: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 47. This court has repeatedly held that trial judges are required to respond through specific corrective instructions where Crown improprieties inject a particular risk that the jury will engage in an impermissible pattern of reasoning: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 52. In this case, similar to R. v. J.S., 2018 ONCA 39, 140 O.R. (3d) 539, there was a real danger that the jury would accept the proffered stereotypes in place of properly assessing the evidence, and that this would harm the credibility of the defence witnesses in the jurors’ minds, and bolster the credibility of the complainant. The result was an unfair trial

[35] Accordingly, I conclude that the trial was unfair, and would allow an appeal on this basis and order a new trial.

R v Santillana, 2022 ABQB 108

[February 4, 2022] Crown Equivalent of s.276 - R v Seaboyer [Justice Susan L. Bercov]

AUTHOR’S NOTE: Section 276 and the Ghomeshi amendments to the Criminal Code have put a spotlight on attempts by the defence to use prior sexual history to undermine the credibility of complainant. This may be correct as a reaction to years of misuse of such evidence. However, the glare of the spotlight being on the defence allows the Crown to slip in inappropriate content because courts are not focusing on them. Herein, Justice Bercov determined that a Crown attempt to lead past text messages with a complainant that discussed sexual activity in general by the accused was more prejudicial than probative in a trial of sexual interference. Though these communications occurred with the complainant, they were not directed at activities with her. Exclusion resulted even though the trial proceeded without a jury.

Introduction

[2] In the one-month period before the alleged assault, Mr. Santillana and C exchanged numerous text messages.

[3] Many of the messages are sexual in nature. They include texts where Mr. Santillana asks about C’s previous sexual experiences and whether C would engage in certain sexual activities. There are also texts where Mr. Santillana describes his interest in having sex with the Complainant.

[4] Because C was 14 at the time of the alleged assault consent is not in issue. Mr. Santillana’s Defence is that the alleged sexual activity did not occur.

[6] On the second day of trial, I raised with counsel my concern that notwithstanding the agreed upon redactions, there were still numerous messages included in Exhibit 1 that were of a sexual nature and were not redacted. Both the Defence and the Crown agreed that some unredacted text messages fall within the definition of sexual activity requiring an application before they are admissible.

[7] Neither party applied before or at the beginning of the trial to have the texts admitted under s. 276 or Seaboyer. I adjourned the trial to permit the parties to bring the appropriate applications.

[8] Mr. Santillana did not file a s 276 application. The Crown filed a Seaboyer application to admit some but not all of the unredacted texts that fall within the definition of other sexual activity. The texts that the Crown argues have low relevance but high prejudice the Crown intends to redact.

[11] Before adjourning on the second day of trial, the Defence indicated an intention to bring a s 276 application. To avoid further delay, the Complainant retained counsel for the application. Although no s 276 application was filed, neither party objected to the Complainant’s counsel appearing on the Crown’s Seaboyer application. Counsel for the Complainant took no position on the application.

[12] To resolve the Crown’s Seaboyer application I must determine the following issues:

1. Are the texts evidence of ‘other sexual activity’?
2. Is the evidence being adduced to support twin-myth reasoning?
3. Is the evidence relevant?
4. Does the evidence have probative value that is not outweighed by the danger of unfair prejudice?

Are the Texts Evidence of Other Sexual Activity?

[17] In determining what texts constitute other sexual activity, the Crown relies on decisions finding that ‘other sexual activity’ includes invitations to engage in sexual activity and even sexual discussions that did not amount to an invitation: R v I (J), 2015 ONCJ 61 at paras 16-20; R v Zachariou, 2013 ONSC 6694 at paras 18-21.

[18] I agree with the Crown that the definition of ‘other sexual activity’ is broad. With one exception, discussed below, I find that the text messages the Crown seeks to admit do constitute ‘other sexual activity’. The texts are primarily discussions between Mr. Santillana and the Complainant about her past sexual experiences, what sexual activities she might engage in, discussions about sexy clothing, the Complainant’s body, and requests for nude photographs. I am satisfied that these are communications made for a sexual purpose or whose content is of a sexual nature. While the Crown raised the argument that the text messages between
Mr. Santillana and the Complainant’s friend, E, are not ‘other sexual activity’, because the content of the texts is primarily about sexual activity with C, I find that these texts also fall within the scope of ‘other sexual activity’.

Is the Evidence being Adduced to Support Twin-Myth Reasoning?

Is the evidence Relevant?

[23] The balance of the statutory scheme in s 276(2) and (3) applies only to evidence adduced by the accused and not evidence the Crown seeks to tender. However, R v Barton, 2019 SCC 33 is clear that when dealing with Crown led evidence of other sexual activity, trial judges must follow the SCC’s guidance in R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577to determine the admissibility of Crown-led prior sexual activity evidence. In other words, the common-law principles apply to the admissibility of Crown-led prior sexual activity evidence.

[24] The Seaboyer principles require that the evidence is relevant, and that it has probative value that is not substantially outweighed by the danger of unfair prejudice.

[25] The Crown quite fairly points out that Seaboyer dealt with defence led evidence and that Seaboyer suggests that the balancing test applied to Crown evidence is a higher standard: whether its probative value is merely outweighed as opposed to substantially outweighed by its prejudicial effect. This is the test I will apply.

[27] Applying the well accepted test for relevance in R v Watson, 1996 CanLII 4008 (ON CA), [1996] O.J. No. 2695, I find that the text messages are relevant. As a matter of human experience and logic, the texts by Mr. Santillana commenting on her body, asking for nude pictures, asking what sexual acts the Complainant has done or would do, and expressing his interest in having sex with C makes the existence of the material fact in issue, whether Mr. Santillana touched the Complainant for a sexual purpose, more probable than it would be without the existence of the texts.

[30] The Defence argues that these texts show Mr. Santillana in a bad light. While the texts demonstrate that he has an unhealthy and unwholesome interest in sexual activity, the texts do not assist the trier in determining what happened on the night in question. Defence urges me to stay focused on the fact that evidence must be relevant to the fundamental question in this case being whether sexual activity happened on the night in question. The fact that Mr. Santillana expressed certain desires, does not mean that on the night in question he sexually assaulted the Complainant. The Defence uses the analogy of evidence that the Complainant previously consented is not relevant to whether she consented at the time of the sexual activity. Defence submits that the probative value of the texts is low, but the prejudicial effect is high.

[31] ...

• Testimony that seeks only to tarnish the character of an accused for the purposes of showing that they are the type of person who would have committed the type of offence now charged should not be received by a trial court: R v Dirksen, 2021 SKCA 6.

• Evidence that might otherwise be classified as bad character evidence may be admitted if it is relevant to an issue at trial and its probative value outweighs its prejudicial effect: Dirksen, at para 68.

The texts the Defence objects to can be divided into two different categories:

a. Texts discussing sexual activity in general: 162, 665-676, 789, 799, 800, 803, 805, 812, 910, 918, 977, 989, 990, 991, 992, 993, 994, 995, 996, 998; and

b. Texts indicating Mr. Santillana’s sexual interest in the Complainant: 614, 685- 725, 855, 921, 922, 927, 929, 933, 953.

[33] I agree with the Defence that those texts where Mr. Santillana discusses sexual activity in general, not specifically directed at his interest in having sex with the Complainant, have low probative value on the issue of whether he sexually assaulted the Complainant on the night in question. For those texts, there is a real danger that they could be used for propensity-based reasoning. For those texts, the prejudicial effect outweighs the probative value. Therefore, I conclude that those texts are not admissible.

[34] The texts where Mr. Santillana evidences a sexual interest in the Complainant are different. These texts are not just general sex talk. They are texts that show Mr. Santillana’s sexual interest in the Complainant. These texts are similar to the communications found to be admissible in Bourgeois and Dirksen. The texts are probative of Mr. Santillan’s interest in the Complainant and that is relevant to the issue of whether he intentionally touched her for a sexual purpose. In my view, the probative value outweighs any prejudicial effect.

R v Penner, 2022 BCSC 175

[January 14, 2022] Charter s.12 - Mandatory Minimum - Manslaughter with a Firearm [Justice Schultes]

AUTHOR’S NOTE: It is hard to keep track of the various decisions that have struck down mandatory minimums in the decade and more since the Harper government started passing them. However, the trend continues. Here, a noteworthy mandatory minimum of 4 years was struck down with what appears to have been an invitation to further challenge the unavailability of a condition sentence for the same offence. In a case where an accidental discharge killed a spouse and other risk-taking factors were fairly minimal, the imposition of the 4 year minimum was found to be grossly disproportionate to what was needed for this offender. The case may be one to watch on appeal to see how it develops.

Introduction

[1] On March 6 of last year, a jury found Mr. Penner guilty of committing the manslaughter of April Johnson, his intimate partner, using a firearm, contrary to s. 236(a) of the Criminal Code. Manslaughter with a firearm carries with it a minimum four-year sentence of imprisonment. Pursuant to s. 12 of the Charter, Mr. Penner is challenging that minimum sentence, on the basis that it is grossly disproportionate when it is applied to the circumstances of this case, or to certain reasonably foreseeable situations, thereby amounting to cruel and unusual punishment.

[2] This was Mr. Penner’s second trial. He was convicted in 2017, but a new trial was ordered because of a deficiency in the jury instructions. He made an unsuccessful s. 12 application in relation to the minimum sentence following that conviction. The neutral citation for the reasons dismissing his application and imposing the minimum sentence is 2017 BCSC 1688, which I will refer to as "Penner #1". ...

[3] The process to be followed is first to determine the “rough scale” of what a proportionate sentence for Mr. Penner would be in the absence of the minimum sentence. I must then consider whether the imposition of that minimum would result in a grossly disproportionate sentence, either in relation to Mr. Penner’s situation, or in other reasonably foreseeable applications: R. v Lloyd, 2016 SCC 13 (CanLII), [2016] 1 S.C.R. 130, at paras. 22-23.

Circumstances of the Offence

[5] The offence was committed on December 20, 2012, in Vanderhoof. Mr. Penner was handling a .22 calibre semiautomatic rifle belonging to his friend Richard Borne in the kitchen of Mr. Borne’s trailer, when it discharged. The bullet struck Ms. Johnson, who was standing nearby, eventually causing her death.

[6] The unlawful act forming the basis of the manslaughter conviction was Mr. Penner’s careless use of the rifle. The jury’s verdict indicates that they were satisfied beyond a reasonable doubt that he used, carried, or handled the rifle in a careless manner or without reasonable precautions for the safety of other persons, and that his conduct was a marked departure from the standard of care of a reasonable person in all the circumstances. ...

[7] ... In other words, the essential factual question for sentencing is the nature and extent of his carelessness in handling the rifle. It is therefore necessary to determine what factual findings on that issue were essential to the verdict, or if that cannot be determined, what findings are appropriate for me to make.

[8] ... If I engage in my own fact-finding, I should “find only those facts necessary to permit the proper sentence to be imposed in the case at hand”. In essence, the correct approach is to “ask what the issues on sentencing are and then find such facts as are necessary to deal with those issues”: R. v. Ferguson, 2008 SCC 6 (CanLII), [2008] 1 S.C.R. 96, at para. 18.

[10] There is no question that Mr. Penner and Ms. Johnson had gone to Mr. Borne’s trailer to socialize. On any version of the events, all of the attendees had at least some alcohol to drink before the shooting. A plan arose for Mr. Penner and Ms. Johnson to do some recreational shooting at a farm property belonging to
Mr. Borne’s parents, using Mr. Borne’s rifle.

[11] Because the rifle had jammed and “blown out the clip” on one of the previous times he had used it, Mr. Borne took it outside and test-fired a shot into a nearby tree. It fired properly this time so he brought it back inside. He testified that he leaned it against the cupboard in front of the stove in the kitchen, with the butt touching the ground and the barrel pointing up.

[14] A basic summary of the operation of the rifle may also be helpful at this point. After attaching the magazine that contains the cartridges to the bottom of the rifle, one pulls the cocking handle back, which puts a cartridge in the chamber. The hammer of the rifle has then been cocked, and if the safety mechanism is off, the rifle is ready to fire. Pulling the trigger causes the process by which the hammer strikes the cartridge and the bullet fires. The force of the firing causes the bolt to move to the rear, which in turn causes the extraction mechanism to eject the cartridge shell. The bolt then moves forward and pulls up another cartridge into the chamber, and the rifle is ready to fire again. The key point for our purposes is that after the first time the cocking handle is operated and the rifle is fired, it is then self- loading. In other words, unless Mr. Borne performed another operation with the rifle to eject the next cartridge, the rifle was already loaded and ready to fire again when he brought it inside.

Mr. Borne

[15] He confirmed in his testimony that the rifle would have loaded another “bullet” into the chamber after he fired the test shot. When he was asked if he did anything else before he brought the rifle back inside, he testified, “I believe I emptied it. That’s what I thought, but --". When asked to clarify further, he said that when he leaned the rifle up against the “counter”, the magazine was still in, but he did not think there was a “bullet” in the chamber. He said the safety of the rifle was off.

[16] He also testified that he told Mr. Penner and Ms. Johnson that the gun was “fine” and, “Go ahead you can use the gun and it worked.” Later in his testimony, he thought that he said, “It’s ready", but then thought he had told them, “It’s good to go.” In cross-examination, he expressed that comment as, “It’s ready to go.” He did not recall Mr. Penner saying anything in response.

[17] When it was suggested to him that he had told Mr. Penner at that point that the gun was unloaded, he said that he could not recall. ...

[18] He could not recall if he had removed the bullet that would have gone into the chamber after firing the test shot, but added, “I don’t think I did.”...

[19] In addition, Mr. Borne agreed that he had told the police in his first statement that, “I left a shell in that damn chamber” and that is how he thought the discharge had occurred. ...

[20] Mr. Borne's account of the actual shooting was that it occurred as he was making a drink by the sink in the kitchen. He had not heard or seen anyone doing anything with the rifle beforehand. Music was playing “fairly loud” on the stereo. He then heard a “pop”, which he first thought was a balloon. He turned around. Then Ms. Johnson said something like, “What the hell, you shot me.” Later in his evidence, he described her saying, “Oh My God”. She was standing right in front of his “front door”, by which I infer he meant that main entrance door that I previously described, rather than a sliding door that is adjacent to the dining room. He said that Mr. Penner “rushed right up and grabbed her”.

[24] After the shooting, Mr. Penner drove Ms. Johnson to the hospital in Vanderhoof. She was later transported to the Prince George hospital by ambulance. Mr. Borne said the only comment Mr. Penner made to him when they were following the ambulance in Mr. Borne’s truck was to ask, “What the hell happened?”

[25] Mr. Borne had testified at the first trial under the protection of the Canada Evidence Act, I infer because of his then-outstanding criminal charges arising from this incident. The admissions provide that following that trial, on May 23, 2017, he pleaded guilty in Provincial Court to one count of careless use of a firearm and one count of possessing a firearm without a licence, both relating to this incident.

Standard of care and operation of the rifle

[58] Mr. Hill explained the basic rules of safe handling that he teaches. They are to:

1. (1)  assume the firearm is loaded, no matter what one is told about it;
2. (2)  control the direction in which it is pointed at all times (either upwards, at an angle away from anyone, as he teaches; or towards the ground, as is frequently taught by others);
3. (3)  not to have one’s finger on its trigger or trigger guard unless aiming at a target, using the expression, "off target/off trigger"; and
4. (4)  to “see that it is safe” by having the action, which is the part of the firearm that loads, fires, and ejects a cartridge, open so one can look into it.

All of these steps, or the failure to take them, are potentially engaged in this case.

[65] Mr. Prendergast conducted shock testing on the rifle, which involved dropping it in various positions from a height of four feet, onto a concrete surface that is covered by a one-inch thick rubber mat. Before it was dropped each time, the gun was put in a position where it would be ready to fire - with its hammer cocked and the safety off. After each drop, it was checked to see if the shock caused the firing mechanism to be engaged. Had it been loaded, it would have fired in such a situation. This testing, although so vigorous that it eventually broke the rifle, did not cause it to simulate firing. Mr. Prendergast concluded therefore that it was not prone to shock discharge. However, he agreed that some rifles that are prone to such discharge will not do it every time from every position, but only intermittently.

Discussion

[90] Despite his counsel’s able submissions on this point, I also do not think I can rule out his finger having been on the trigger based on its inconsistency with his simulated motions of dealing with the gun. In at least one instance, he mimed only the cocking handle maneuver, and described the contact with the table and the discharge as a subsequent event. As a result, no particular hand position can be inferred to necessarily have accompanied the actual discharge.

[92] Accordingly, I am satisfied that the rifle discharge occurred though some application by Mr. Penner of force to the trigger with his finger. I consider this most likely to have occurred after he mistakenly concluded that it was empty through an inadequate process of checking it, and in breach of the “off target/off trigger”requirement for safe handling that Mr. Hill explained. It is the only reasonable inference arising from the evidence, in my opinion, and has therefore been proven beyond a reasonable doubt as an aggravating factor.

[93] While I agree with the Crown that even if Mr. Penner has been told that the rifle was not loaded, he still had a duty to assume that it was and confirm that it was safe, it would be a mitigating factor if he had been given incorrect information from the outset. In light of Mr. Borne’s uncertainty on this point and his state of impairment at the time, I am satisfied on the balance of probabilities that this conversation occurred as Mr. Penner described it.

Circumstances of Offender

[99]  Mr. Penner was 25 years old when this offence was committed and is now 34. He has lived in Vanderhoof for most of his life.

[100] His family background was somewhat challenging. Although it is reported that both parents drank to excess, his mother in particular struggled with substance misuse and died in 2014 under circumstances that were triggered by alcohol consumption. His father has been living with a terminal cancer diagnosis since 2015. More recent losses he has suffered are his brother dying in an ATV accident and his cousin succumbing to an overdose.

[102] He had no adult criminal record at the time of the offence. He has been convicted of a breach of a recognizance since then in 2017. It related to a non-compliance with his bail order in this matter, by consuming a beer contrary to a condition that he abstain from the consumption of alcohol. The actual offence occurred in 2016. He received a conditional discharge with a six-month probation period. He has complied with the condition since that incident, he reports.

[103] It is common ground that he is entitled to credit for his pretrial custody in this matter at the usual rate of one-and-a-half days for every day actually served. That will result in a total credit of 26 days from whatever sentence is ultimately imposed.

[104] ... From 2016 until last year, he was employed with a garbage collection company, until he was laid off in anticipation of receiving a prison sentence for the current conviction ...

[105] Mr. Penner has been in a common law relationship for the past eight years and he and his partner have two children together. His father-in-law provided positive comments to the probation officer about how Mr. Penner has matured over the years and what a “phenomenal father” he is to his children.

[106] His close contacts describe him as being very depressed and threatening suicide after Ms. Johnson’s death. His spouse says that he still loves Ms. Johnson and will never to be able to get over her death. ...

[107] More generally, Mr. Penner has no history of substance misuse problems and, given his family history, he is quite wary of alcohol use in general. He does not use other recreational drugs, he explains.

[109] In a written statement to the probation officer, Mr. Penner expressed his remorse for the consequences of his actions, especially the effect on Ms. Johnson’s mother, and described the emotional consequences to him of Ms. Johnson’s death. He specifically acknowledged that he should not have been handling a firearm while consuming alcohol.

Crown Position on Sentence

[111] Crown counsel submit that the range of sentence for an offence of this nature is three to seven years, and that the minimum sentence of four years that was imposed in Penner #1 falls well within that range....

[113] Another guiding principle that must be kept in mind is the duty of care that is imposed on those who have control of an inherently dangerous item like a firearm, and the emphasis that courts must place on the principles of retribution and denunciation, as well as general deterrence, when that duty is breached: R. v. Canning, 1996 CanLII 11553 (NL SC), [1996] N.J. No. 337 (S.C.T.D.), at para. 69.

[115] Similarly, in R. v. Finlay, 1993 CanLII 63 (SCC), [1993] 3 S.C.R. 103, at para. 24, the Court referred to the “rigorous and specific duty of care” that Parliament has imposed on those who use firearms, and emphasized that those who fail to live up to the required standard when engaging in inherently dangerous activities “cannot be said to have done nothing wrong."

[116] The Crown also points to the comments in Morrisey that there is a strong need for general deterrence in these offences because “failure to exercise [the required degree of] care will have tragic consequences not only for the victim, but also for the offender”: paras. 36 and 46.

[118] The facts and the outcome of Canning are also instructive, in the Crown’s submission. The case was decided after the four-year minimum was enacted, but was not subject to it because of the date of the offence. The offender there was convicted of manslaughter following a trial on first degree murder. While intoxicated, he stumbled while picking up a loaded shotgun that he had previously placed on the floor, causing it to discharge and kill the friend with whom he was temporarily sharing accommodation. He had originally placed it on the floor after taking it out of the hands of the friend, who was sleeping at the time. The shotgun was his, and he normally kept it on the mantelpiece of this room, with the ammunition nearby. He first gave the police a version of events in which the friend had shot himself, but eventually described the incident accurately. He was 41, had a good work history, and no previous criminal record. The sentencing judge accepted that he was sincerely remorseful. Despite the inapplicability of the minimum, he received a sentence of four years’ imprisonment.

[119] The Crown also drew my attention to significant sentences that have been imposed for firearm offences that did not involve fatalities, such as the 40-month sentence that had been imposed following a guilty plea in the trial court on the 19-year-old first offender in R. v. Nur, 2015 SCC 15 (CanLII), [2015] 1 S.C.R. 773, which I will be referring to at greater length when addressing the s. 12 issue. He had possessed a loaded handgun in public for a short period, without having fired it or used it in a threatening way.

Defence Position

127] As an overview, the defence submits that an appropriate sentence in the absence of the minimum would be a period of imprisonment in the range of two years less a day. Counsel initially referred to a sentence of two years, but modified his position slightly in light of Mr. Penner’s intention, if the current challenge is successful, also to challenge the Criminal Code provisions that currently make a conditional sentence of imprisonment unavailable to him for this offence.

[128] Addressing the applicable sentencing principles, counsel submits that while denunciation must of course be a central factor to address the unlawful nature of
Mr. Penner's conduct and the harm that it has caused, a sentence of incarceration is not actually required in order to achieve it. Further, although general deterrence requires emphasis in most cases of unlawful act manslaughter, it does not require as much on our particular facts. As the Crown has acknowledged, Mr. Penner himself does not require any further deterrence from conduct like this, given the consequences he has endured as a result of it, and the passage of time has allowed him to demonstrate his complete rehabilitation and reintegration into society. ...

[129] For the purposes of identifying the appropriate range, his counsel submits that Mr. Penner’s actions can be described as “near-accident”, as close to the threshold of a pure accident as possible while still meeting the criteria for the unlawful act of careless use.

[130] The difficulty in identifying helpful cases on what such an appropriate range would be in the absence of the minimum, counsel points out, is that all post-1996 decisions necessarily reflect the inflationary effect of that minimum....

[132] In R. v. Pettigrew (1990), 1990 CanLII 5417 (BC CA), 56 C.C.C. (3d) 390 (B.C.C.A.), the offender, while intoxicated, attempted to unload a rifle that she and her partner habitually kept loaded in their bedroom. In the course of her handling of it, it fired, killing her partner. The trial judge concluded that a period of imprisonment was required for denunciation. ... the Court of Appeal also “recognized that she had a long history of abuse at the hands of her husband and in attempting to unload the gun, she was acting out of concern for her children's and her own safety.” ... A sentence of six months' imprisonment was substituted for the 12 months that had been imposed at trial, followed by 12 months’ probation.

[133] Finally, in R. v. Ball, [1993] O.J. No. 3207 (Ont. C.J. - Gen. Div.), the youthful offender had been convicted of a manslaughter following a trial. He accidentally shot his friend while handling a rifle inside his house. He had some training and experience in handling firearms. Contrary to his father’s instructions, he had put themagazine in the rifle and then left the rifle in a room. When he returned, it was in a different position, which the judge said ought to have alerted him to be cautious in handling it. He was not, and the death resulted from the rifle discharging. ...

[134] The defence also refers to the some of the previous unsuccessful challenges to this minimum sentence, the facts of which demonstrate more intentional and aggravated behaviour than is found here, such as: acting as a non-shooter party to an execution-style double murder (R. v. Walcot, 2001 BCCA 342); firing into bushes while hunting without confirming the nature of the target (R. v. Birchall, 2001 BCCA 356); while serving as a police officer, shooting an arrested suspect twice in the police cells (Ferguson); and, as previously mentioned in Morrisey, while intoxicated, jumping on a bed on which the victim was lying while carrying an illegally modified rifle that the offender himself knew was loaded....

Discussion: Sentence

[139] The length of time that this minimum sentence has been in force means that, other than analyses by courts that have addressed challenges to its compliance with the Charter, all contemporary cases feature a potential range of sentence that starts with four years. It would obviously be incorrect to impose that artificially-created range on the question of what a fit sentence would be without it.

[140] Instead, the correct approach is the one explained in R. v. Badhesa, 2019 BCCA 70:

[24] The offence of manslaughter encompasses conduct which has caused the death of another person and falls short of intentional killing. It covers a wide range of cases extending from “near accident” to “near murder” and different degrees of moral culpability attach along a continuum within that spectrum. A sentencing judge assesses moral culpability for manslaughter by considering the offender’s mental state in the context of the unlawful act itself and the offender’s personal characteristics, blending and balancing all in combination. Factors that weigh in the balance include intentional risk-taking, the harm caused, the normative character of the offender’s conduct, the degree of deliberation involved … and the element of chance involved in the resulting death: R. v. Plowman, 2015 BCCA 423 (B.C. C.A.) at para. 40, citing R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 (S.C.C.) at para. 80; R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290 (S.C.C.) at para. 247.

[25] The purpose of the balancing exercise is to ensure that the sentence fits the degree of the offender’s moral fault for the harm done by the unlawful act underlying the offence of manslaughter. The measure of the fitness of a sentence lies in the principle of proportionality: a sentence must be proportionate to the seriousness of the offence and the moral blameworthiness of the offender. If a sentence for manslaughter passes this fundamental test it is a fit sentence. If it does not, it is unfit: Stone at para. 233; R. v. Laberge, 1995 ABCA 196 (Alta. C.A.) at paras. 6-11; R. v. Draper, 2010 MBCA 35 (Man. C.A.) at para. 7.

[26] Sentences imposed for manslaughter range from a suspended sentence to life imprisonment. Given that wide range, the judge must carefully determine the degree of an individual offender’s moral culpability and craft a sentence that accounts adequately for the unique constellation of relevant factors present in a case. The task is complex and sometimes factors unrelated to where the unlawful act falls on the “near accident” to “near murder” spectrum nonetheless bear on the degree of the offender’s moral culpability.

[141] As the cases cited by the Crown make clear, the inherent danger posed by firearms and the corresponding duty on those who handle them to adhere to the appropriate standard of care require sentences that deter careless behaviour in others and express society’s collective condemnation of such carelessness. When it leads to the loss of a life, these sentencing objectives become even more pressing. Further, when manslaughter results from a lack of care, it does not mitigate its seriousness to say that the ultimate harm was not intended. As the cases explain, a criminal level of fault and responsibility arise from a lack of care to a marked degree.

[142] ... While this has been most prominent in the areas of street crime, organized crime, handgun possession, and other risks to public safety at large, I accept, as the sentencing judge in McMath found, that it is also meant to be reflected in firearms-handling offences such as this one, that take place outside a street or organized crime setting. The range of sentences identified in the pre-minimum cases that have been referred to certainly needs some upwards adjustment to accord with this contemporary understanding of the harmfulness of firearms misuse.

[144] I accept the mitigating factors that were acknowledged by the Crown and expanded on by the defence: Mr. Penner’s youth and lack of criminal record at the time; his immediate, sincere, and ongoing remorse; his cooperation with the police investigation; his strong work record; and his evident dedication to his family. It is also mitigating that I have found that he was misinformed about the status of the rifle, although that did not relieve him from his duty to handle it safely.

[147] While no s. 11(b) application has been made, this is a case in which the time that has elapsed before sentencing due to systemic factors has had a significant harmful effect on the offender, and is properly considered when arriving at a fit sentence. I am particularly focusing here on the need for an appeal and a second trial, which were caused by an incorrect jury instruction and were not contributed to at all by Mr. Penner. In addition to the authority cited by the Crown, I refer to the summary of principles in R. v. Nasogaluak, 2010 SCC 6, at paras. 53-55. As the presentence report details, Mr. Penner has been under very significant emotional stress since this offence occurred and the prolonging of the court process has clearly prolonged that stress as well (as it has for Ms. Johnson’s family). More basically, from the point of view of fairness, he is now facing a lengthy period of imprisonment long after he would have completed it if his trial been concluded properly in 2017.

[148] With respect to the principles of sentencing to be emphasized, I agree that the consequences that Mr. Penner has already suffered mean that he does not require any specific deterrence and that by his own efforts he has already successfully reintegrated himself into society as a productive member. Similarly, I am satisfied that a sense of responsibility for this offence has already been instilled in him by what occurred, and how he has responded to it since then. He has sincerely acknowledged the harm done to Ms. Johnson and her family members, although a fit sentence itself must always recognize that harm.

[149] There is really no dispute that the primary emphasis among the applicable principles must be to deter others from such careless behaviour and to express society’s collective disapproval of conduct of this nature, and its potentially fatal consequences. However, the principle of restraint requires that the manner in which those principles are reflected in the sentence imposed must be tailored to what is necessary to address them properly, and not go beyond that.

[152] Viewed in that manner, I think the cases relied on by the Crown involved meaningfully higher degrees of moral blameworthiness on behalf of the offenders than Mr. Penner’s – specifically, taking meaningful voluntary steps to create a situation in which the risk of a discharge occurring was present. Even the offender in McMath was the creator of the risk that was eventually fulfilled - in that case, the rifle being discharged twice - by loading the gun and placing it in a position where it could be immediately used to deal with coyotes, before retrieving and attempting to unload it in unsafe circumstances (and, it is worth adding, after sharing a bottle of wine with the victim).

[153] In contrast, the firearm was presented to Mr. Penner (whether handed to or left for him) by Mr. Borne and Mr. Penner’s moral blameworthiness arises only from the inept and ultimately fatal efforts he then made to fulfill the duty of rendering it safe, including, as I have now found, his failure to adhere to the “off target/off trigger” rule that Mr. Hill described as a component of safe handling. That is far from a negligible degree of carelessness, as his conviction demonstrates, but it is much farther along the continuum towards near-accident than these other cases. Even the youthful offender in Ball, who received a suspended sentence, was the person who originally dealt with the rifle and left it vulnerable to being discharged.

[154] For this reason, I must respectfully disagree with the original sentencing judge’s conclusion about Mr. Penner’s degree of moral blameworthiness. I conclude instead that Mr. Penner’s blameworthiness falls towards the lower end of the range that can be found in cases of this nature. ... This relieves me from any obligation to follow the conclusion of the original sentencing judge on moral blameworthiness that might otherwise have been imposed on me by the principles of judicial comity.

[155] Balancing these factors and giving them the weight to which they are entitled, including the effect of my assessment of moral blameworthiness on the fundamental principle of proportionality, I conclude that the rough scale of a proportionate sentence in the absence of the minimum would be imprisonment in the range of 18 months to two years less a day. A meaningful period of imprisonment is certainly required to give proper effect to general deterrence and denunciation in light of the serious circumstances, and in a higher range than shown by the now-dated pre-minimum cases, but the factors moderating moral blameworthiness mean that those goals can readily be achieved by a period of imprisonment in the range I have identified. Its higher end is the sentence proposed by Mr. Penner’s counsel, but the lower end falls somewhat below it. This does not reflect any criticism by me of his counsel’s analysis, but is simply the product of my own balancing of the various relevant factors.

[159] As a final point, the Crown’s very fair decision to take no position on whether any violation of s. 12 in these circumstances could be saved as reasonable limitation by s. 1 of the Charter, means that it is not necessary for me to review the defence submissions on that issue.

Charter Application

[176] I acknowledge, as pointed out by the Crown, the caution that should accompany the consideration of whether a minimum sentence breaches s. 12, and the high bar that has been set by the Supreme Court of Canada before such a finding can be made. This includes the important task of distinguishing between sentences that are merely disproportionate or excessive and those that actually meet the threshold. I also accept without reservation the proposition that an unintentional discharge of a firearm cannot be said to be an accident in the legal sense, when it was brought about by a marked departure from the standard of care that accompanies the handling of such inherently dangerous items. That very absence of proper care, and its likely fatal consequences, are exactly what are being targeted by this minimum sentence.

[177] ... Of course denunciation and deterrence must loom large in all such cases, and the inherent dangerousness of firearms and the need to protect against those dangers being realized must feature prominently in any analysis. But that does not mean that the individualized nature of the sentencing process is thereby cast aside. Just because there are no minor offenders, so to speak, when a death is caused by carelessness with a firearm does not mean that meaningful distinctions among different ways of bringing that event about should not be drawn, or that more or less morally blameworthy ways of doing so should not be identified and treated accordingly. To proceed in such a manner would be to reason backwards from the existence of the minimum, instead of considering the particular circumstances of offence and offender. Chief Justice McLachlin, (as she then was), captured this concept well in Nur:

[43] It is no surprise, in view of the constraints on sentencing, that imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime R. v. M. (C.A.)1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500(S.C.C.), at para. 80. “Only if this is so can the public be satisfied that the offender ‘deserved’ the punishment he received and feel a confidence in the fairness and rationality of the system” (Re Reference re s. 94(2) of Motor Vehicle Act (British Columbia)1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486(S.C.C.), at p. 533, per Wilson J.). As LeBel J. explained in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433(S.C.C.):

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. ...[para. 37]

[44]      Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.

[45]      General deterrence - using sentencing to send a message to discourage others from offending - is relevant. But it cannot, without more, sanitize a sentence against gross disproportionality: “General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual” (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90(S.C.C.), at para. 45, per Gonthier J.). Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.

To which I would add "or to denounce such conduct."

[178] As I have already concluded when considering the proportionate sentence, I must depart from Penner #1because the analysis of Mr. Penner’s moral blameworthiness did not pay sufficient attention to the individual circumstances of offence and offender, and effectively lumped him in with all of the other cases presented, particularly McMath, which involved notably higher levels of blameworthiness, arising from the more central role of those offenders in creating the risk that came to pass. In essence, the judge accepted the same argument the Crown has made here, which in my opinion obscured the necessary individualized analysis. As I have said in the context of determining the proportionate sentence, this relieves me from any obligations that would otherwise be imposed by the principles of judicial comity.

[181] The Supreme Court of Canada in Nur and Lloyd did not engage in the more structured analysis of gross disproportionality found in Morrisey, but rather considered that question at large. Cast within the Morrisey framework, I would express my conclusion as being that despite the acknowledged gravity of the offence and the valid penological goals of deterring and denouncing it, and recognizing that Mr. Penner’s very positive background or the effect of the minimum sentence on him would be insufficient in themselves to displace those considerations, the circumstances of the offence as they affect his moral blameworthiness nonetheless lead to a conclusion that the minimum will operate with gross disproportionality here.

[185] In light of the Crown’s sensible and fair position on s. 1 and the comments in Nur that I have referred to, I am unable to conclude that this minimum constitutes a reasonable limit on the right in question.

Conclusion

[186] I conclude that s. 236(a) violates s. 12 of the Charter and is not justified by s. 1. Accordingly, I declare it to be of no force and effect.

[187] We will adjourn to a suitable fix date so that Mr. Penner’s counsel, if he still wishes to pursue a further application with respect to the Code provisions that prohibit the imposition of a conditional sentence, can provide notice of it.

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