R. v. Brown [1994] 3 S.C.R. 749: Cruel and unusual punishment -- Criminal law -- Sentencing -- Mandatory minimum sentence for use of firearm while committing indictable offence -- Sentence to be served consecutively to punishment imposed for an offence arising from same event -- Sentence imposed on conviction for armed robberies using shotgun

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Constitutional law -- Charter of Rights -- Cruel and unusual punishment -- Criminal law -- Sentencing -- Mandatory minimum sentence for use of firearm while committing indictable offence -- Sentence to be served consecutively to punishment imposed for an offence arising from same event -- Sentence imposed on conviction for armed robberies using shotgun -- Whether provision creating minimum sentence infringing s. 12 of Charter -- If so, whether justified under s. 1 of Charter -- Whether provision requiring sentence to be served consecutively if arising out of same event infringing s. 12 of Charter -- If so, whether justified under s. 1 of Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 12 -- Criminal Code, R.S.C., 1985, c. C-46, s. 85(1), (2).

Criminal law -- Sentencing -- Mandatory minimum sentence for use of firearm while committing indictable offence to be served consecutively -- Sentence to be served consecutively to punishment imposed for an offence arising from same event -- Sentence imposed on conviction for armed robberies using shotgun -- Whether provision creating minimum sentence infringing s. 12 of Charter -- If so, whether justified under s. 1 of Charter -- Whether provision requiring sentence to be served consecutively if arising out of same event infringing s. 12 of Charter -- If so, whether justified under s. 1 of Charter.

IACOBUCCI J. -- At issue in this appeal is the constitutionality of s. 85 of the Criminal Code, R.S.C., 1985, c. C-46. We are all of the view that the appeal should be allowed on the basis of the principles recently decided by the Court in R. v. Goltz, [1991] 3 S.C.R. 485. In Goltz, the majority of the Court held that a two-stage test should be employed to evaluate the constitutionality of a legislative sentencing provision under s. 12 of the Canadian Charter of Rights and Freedoms. The first stage is to view the provision in question from the perspective of the accused, and on the facts of this case, which involved three armed robberies using a shotgun, the provision clearly does not offend s. 12.

The second stage involves considering reasonable hypotheticals involving the offence underlying the sentence in the case before the court. Here, the Attorney General of Manitoba limited its defence of s. 85 to the case which concerns armed robbery as the underlying offence. As such, the hypothetical proposed by the respondent relating to mischief is not a reasonable hypothetical envisioned by Goltz. We agree with these submissions and would therefore find no violation of s. 12 of the Charter.

Accordingly, the appeal is allowed, the judgment of the Court of Appeal of Manitoba is set aside, the cross-appeal is dismissed, and the trial judge's calculation of the respondent's sentence is restored.

We would answer the constitutional questions as follows:

Questions 1 and 3: No, when the underlying offence is robbery. The operation of s. 85 in conjunction with other potential underlying indictable offences is not at issue in this appeal and no answer is required regarding the validity of s. 85 in conjunction with such other offences.

Questions 2 and 4: These questions do not arise.

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