R. v. Anderson (F.), (2014) 350 Nfld. & P.E.I.R. 289 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 06, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 350 Nfld. & P.E.I.R. 289 (SCC);2014 SCC 41;311 CCC (3d) 1;[2014] 2 SCR 167;458 NR 1;[2014] 3 CNLR 267;[2014] SCJ No 41 (QL)

R. v. Anderson (F.) (2014), 350 Nfld. & P.E.I.R. 289 (SCC);

    1088 A.P.R. 289

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. JN.019

Her Majesty the Queen (appellant) v. Frederick Anderson (respondent) and Director of Public Prosecutions of Canada, Attorney General of Ontario, Attorney General of New Brunswick, Attorney General of British Columbia, David Asper Centre for Constitutional Rights and Aboriginal Legal Services of Toronto Inc. (interveners)

(35246; 2014 SCC 41; 2014 CSC 41)

Indexed As: R. v. Anderson (F.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

June 6, 2014.

Summary:

Anderson was charged with driving with a blood-alcohol content over .08. He was served with a Notice of the Crown's intention to seek a greater punishment by reason of previous convictions (Criminal Code, s. 727(1)). As this was Anderson's fifth impaired driving-related conviction, tendering the Notice meant that he would be subject to a mandatory minimum sentence of not less than 120 days' imprisonment under s. 255(1)(a)(iii) of the Code. Anderson filed a Charter application in which he argued that ss. 255(1) and 727(1) of the Code violated s. 7 of the Charter because "the combined effect of the [provisions] is to transfer what is a judicial function to the prosecutor, namely, the setting of the floor or minimum sentence in a given case". He also argued that the statutory scheme violated s. 15(1) of the Charter because it deprived an Aboriginal person of the opportunity to argue for a non-custodial sentence in an appropriate case.

The Newfoundland and Labrador Provincial Court accepted Anderson's Charter arguments and concluded that the infringements of ss. 7 and 15(1) were not saved by s. 1 of the Charter. In order to ensure compliance with s. 7 of the Charter, the trial judge held that the Crown had to provide justification for relying on the Notice in all cases, including those involving non-Aboriginal offenders. As for the violation of s. 15(1), the trial judge declared the statutory scheme to be of no force and effect as it applied to Aboriginal offenders. Having determined that he was not bound by the minimums set out in s. 255(1) of the Code, the trial judge sentenced Anderson to a 90-day intermittent sentence followed by two years' probation. A five-year driving prohibition was also imposed. The Crown appealed.

The Newfoundland and Labrador Court of Appeal, in a decision reported at (2013), 331 Nfld. & P.E.I.R. 308; 1027 A.P.R. 308, dismissed the appeal. All members of the court held that where the Crown tendered the Notice at the sentencing hearing without considering the accused's Aboriginal status, this rendered the sentencing hearing fundamentally unfair, leading to a s. 7 Charter breach. According to the court, there would be no breach of s. 7 if the Crown's policy statement regarding the decision to tender the Notice included a specific direction to consider the offender's Aboriginal status. The absence of such a direction, and the lack of explanation on the part of the Crown for its decision to tender the Notice in this case, led the court to conclude that s. 7 of the Charter had been breached. The court split on how the Crown's decision to tender the Notice should be characterized. Welsh, J.A., considered it to be a matter of "core" prosecutorial discretion. Green, C.J.N.L., and Rowe, J.A., maintained that it was "outside a core prosecutorial function". However, that difference of opinion did not affect the result. The Crown appealed.

The Supreme Court of Canada allowed the appeal. Crown prosecutors were not constitutionally required to consider the Aboriginal status of an accused when deciding whether or not to seek a mandatory minimum sentence for impaired driving. There was no principle of fundamental justice that supported the existence of such a constitutional obligation. Absent such an obligation, the prosecutor's decision was a matter of prosecutorial discretion which was reviewable by the courts only for abuse of process. In the complete absence of any evidence to support it, Anderson's abuse of process argument had to fail. The order of the Newfoundland and Labrador Court of Appeal was set aside and a term of imprisonment of 120 days was substituted, with service of the remainder of the sentence stayed in accordance with the concession of the Crown. The court noted that the s. 15(1) Charter challenge to the constitutionality of the statutory scheme was not pursued before it and its reasons should not be taken as endorsing the trial judge's analysis or conclusion with respect to that issue.

Civil Rights - Topic 646

Liberty - Limitations on - Prisoners and imprisonment (incl. mandatory minimum sentences) - [See first and second Criminal Law - Topic 26 ].

Civil Rights - Topic 681

Liberty - Principles of fundamental justice - General - [See first and second Criminal Law - Topic 26 ].

Civil Rights - Topic 3151

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Sentencing - [See first and second Criminal Law - Topic 26 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - [See first and second Criminal Law - Topic 26 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See fourth Criminal Law - Topic 26 ].

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - Anderson was charged with driving with a blood-alcohol content over .08 - He was served with a Notice of the Crown's intention to seek a greater punishment by reason of previous convictions (Criminal Code, s. 727(1)) - As this was Anderson's fifth impaired driving-related conviction, tendering the Notice meant that he would be subject to a mandatory minimum sentence of not less than 120 days' imprisonment under s. 255(1)(a)(iii) of the Code - Anderson submitted that the Crown was constitutionally obligated under s. 7 of the Charter to consider the accused's Aboriginal status in deciding whether or not to tender the Notice - Anderson argued that all state actors (including Crown prosecutors) had to consider Aboriginal status where a decision affected the liberty interest of an Aboriginal person - He maintained that this was a principle of fundamental justice - The Supreme Court of Canada held that Crown prosecutors were not constitutionally required to consider the Aboriginal status of an accused when deciding whether or not to seek a mandatory minimum sentence for impaired driving - There was no principle of fundamental justice that supported the existence of such a constitutional obligation - Absent such an obligation, the prosecutor's decision was a matter of prosecutorial discretion which was reviewable by the courts only for abuse of process - See paragraphs 1 and 16 to 51.

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - Anderson was charged with driving with a blood-alcohol content over .08 - He was served with a Notice of the Crown's intention to seek a greater punishment by reason of previous convictions (Criminal Code, s. 727(1)) - As this was Anderson's fifth impaired driving-related conviction, tendering the Notice meant that he would be subject to a mandatory minimum sentence of not less than 120 days' imprisonment under s. 255(1)(a)(iii) of the Code - Anderson submitted that consideration of Aboriginal status in sentencing was a principle of fundamental justice that applied to all state actors, including Crown prosecutors - It followed that Crown prosecutors were constitutionally required to consider an accused's Aboriginal status when making a discretionary decision that limited the sentencing options available to a judge, including the decision to tender the Notice - The Supreme Court of Canada stated that "there are two reasons why Mr. Anderson's argument must fail. First, it conflates the role of the prosecutor and the sentencing judge by imposing on prosecutors a duty that applies only to judges - the duty to impose a proportionate sentence. Second, the principle of fundamental justice that Mr. Anderson seeks does not meet the test that governs such principles, set out in R. v. D.B., 2008 SCC 25" - See paragraphs 18 to 20.

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - The Supreme Court of Canada stated that "The burden of proof for establishing abuse of process lies on the claimant, who must prove it on a balance of probabilities: ... However, given the unique nature of prosecutorial discretion - specifically, the fact that the Crown will typically (if not always) be the only party who will know why a particular decision was made, this Court in Nixon recognized that where prosecutorial discretion is challenged, the Crown may be required to provide reasons justifying its decision where the claimant establishes a proper evidentiary foundation: ... Requiring the claimant to establish a proper evidentiary foundation before embarking on an inquiry into the reasons behind the exercise of prosecutorial discretion respects the presumption that prosecutorial discretion is exercised in good faith: ... It also accords with this Court's statement in Sriskandarajah, at para. 27, that 'prosecutorial authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives'. Finally, I note that the content of a Crown policy or guideline may be relevant when a court is considering a challenge to the exercise of prosecutorial discretion. Policy statements or guidelines are capable of informing the debate as to whether a Crown prosecutor's conduct was appropriate in the particular circumstances. ... For example, a decision by a Crown prosecutor that appears to contravene a Crown policy or guideline may provide some evidence that assists the claimant in establishing the threshold evidentiary foundation. However, as the intervener the Director of Public Prosecutions of Canada submits, Crown policies and guidelines do not have the force of law, and cannot themselves be subjected to Charter scrutiny in the abstract" - See paragraphs 52 to 56.

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - The Supreme Court of Canada stated that "There are two distinct avenues for judicial review of Crown decision making. The analysis will differ depending on which of the following is at issue: (1) exercises of prosecutorial discretion; or (2) tactics and conduct before the court. All Crown decision making is reviewable for abuse of process. However, as I will explain, exercises of prosecutorial discretion are only reviewable for abuse of process. In contrast, tactics and conduct before the court are subject to a wider range of review. The court may exercise its inherent jurisdiction to control its own processes even in the absence of abuse of process" - See paragraphs 35 to 36.

Criminal Law - Topic 251

General principles - Abuse of process - General principles - [See fourth Criminal Law - Topic 26 ].

Criminal Law - Topic 259

General principles - Abuse of process - Evidence - [See third Criminal Law - Topic 26 ].

Criminal Law - Topic 5606

Punishments (sentence) - Increased punishment for prior convictions - [See first and second Criminal Law - Topic 26 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - [See first and second Criminal Law - Topic 26 ].

Criminal Law - Topic 5849.13

Sentencing - Considerations on imposing sentence - Drinking and driving offences - [See first and second Criminal Law - Topic 26 ].

Criminal Law - Topic 5886

Sentence - Impaired driving - [See first and second Criminal Law - Topic 26 ].

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, consd. [para. 18].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, consd. [para. 18].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, appld. [para. 20].

Canada (Attorney General) v. Leonard (2012), 296 O.A.C. 258; 112 O.R.(3d) 496; 2012 ONCA 622, leave to appeal refused, [2013] 1 S.C.R. v; 451 N.R. 398; 451 N.R. 399 (S.C.C.), consd. [para. 26].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 29].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask. R. 1, refd to. [para. 32].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 32].

R. v. V.T., [1992] 1 S.C.R. 749; 134 N.R. 289; 7 B.C.A.C. 81; 15 W.A.C. 81, refd to. [para. 37].

R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 37].

Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [para. 37].

Sriskandarajah v. United States of America - see United States of America et al. v. Nadarajah.

United States of America et al. v. Nadarajah, [2012] 3 S.C.R. 609; 437 N.R. 107; 301 O.A.C. 264; 2012 SCC 70, refd to. [para. 37].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, consd. [para. 38].

R. v. Gill (R.) (2012), 295 O.A.C. 345; 112 O.R (3d) 423; 2012 ONCA 607, consd. [para. 42].

R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 44].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 52].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 52].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [para. 55].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 56].

R. v. Cunningham - see Cunningham v. Lilles et al.

Cunningham v. Lilles et al., [2010] 1 S.C.R. 331; 399 N.R. 326; 283 B.C.A.C. 280; 480 W.A.C. 280; 2010 SCC 10, refd to. [para. 58].

Ontario v. Criminal Lawyers Association of Ontario - see R. v. Russel (W.I.).

R. v. Russel (W.I.), [2013] 3 S.C.R. 3; 447 N.R. 111; 308 O.A.C. 347; 2013 SCC 43, refd to. [para. 58].

R. v. S.G.T., [2010] 1 S.C.R. 688; 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14; 2010 SCC 20, refd to. [para. 59].

R. v. Auclair (G.) et al., [2014] N.R. Uned. 3; 2014 SCC 6, refd to. [para. 60].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 15].

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(1) [para. 11]; sect. 255 [para. 12]; sect. 718.2(e) [para. 14]; sect. 727(1) [para. 13].

Authors and Works Noticed:

Code, Michael, Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg (2009), 34 Queen's L.J. 863, p. 867 [para. 46].

Frater, Robert J., Prosecutorial Misconduct (2009), p. 259 [para. 56].

Vanek, David, Prosecutorial Discretion (1988), 30 Crim. L.Q. 219, p. 219 [para. 44].

Counsel:

Iain R.W. Hollett, for the appellant;

Derek Hogan and Darlene Neville, for the respondent;

David Schermbrucker and Carole Sheppard, for the intervener, the Director of Public Prosecutions of Canada;

Philip Perlmutter and Lorna Bolton, for the intervener, the Attorney General of Ontario;

Kathryn A. Gregory and Cameron Gunn, Q.C., for the intervener, the Attorney General of New Brunswick;

Joyce DeWitt-Van Oosten, Q.C., for the intervener, the Attorney General of British Columbia;

Kent Roach and Cheryl Milne, for the intervener, the David Asper Centre for Constitutional Rights;

Jonathan Rudin and Emily Hill, for the intervener, the Aboriginal Legal Services of Toronto Inc.

Solicitors of Record:

Attorney General of Newfoundland and Labrador, St. John's, Newfoundland and Labrador, for the appellant;

Newfoundland and Labrador Legal Aid Commission, St. John's, Newfoundland and Labrador, for the respondent;

Public Prosecution Service of Canada, Halifax, Nova Scotia, for the intervener, the Director of Public Prosecutions of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Attorney General of New Brunswick, Fredericton, New Brunswick, for the intervener, the Attorney General of New Brunswick;

Attorney General of British Columbia, Vancouver, British Columbia, for the intervener, the Attorney General of British Columbia;

University of Toronto, Toronto, Ontario, for the intervener, the David Asper Centre for Constitutional Rights;

Aboriginal Legal Services of Toronto Legal Clinic, Toronto, Ontario, for the intervener, the Aboriginal Legal Services of Toronto Inc.