R. v. Goltz [1991] 3 S.C.R. 485: Cruel and unusual punishment -- Minimum sentence -- Provincial motor vehicle legislation providing for mandatory minimum sentence of seven days' imprisonment together with fine for first conviction of driving while prohibited

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

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law -- Charter of Rights -- Cruel and unusual punishment -- Minimum sentence -- Provincial motor vehicle legislation providing for mandatory minimum sentence of seven days' imprisonment together with fine for first conviction of driving while prohibited -- Whether mandatory minimum sentence infringes s. 12 of Charter -- If so, whether infringement justified under s. 1 of Charter -- Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 88(1)(c) -- Canadian Charter of Rights and Freedoms, ss. 1, 12.

Respondent was found guilty of driving while prohibited under s. 86(1)(a)(ii) of the B.C. Motor Vehicle Act, contrary to s. 88(1)(a). Section 88(1)(c) prescribes a minimum penalty of seven days' imprisonment and a $300 fine for a first conviction of driving while prohibited under s. 84, 85, 86 or 214. The provincial court found that the provision did not infringe the guarantee against cruel and unusual punishment in s. 12 of the Canadian Charter of Rights and Freedoms and imposed the minimum sentence. On appeal, the county court found that the sentencing provision violated s. 12 of the Charter and could not be justified under s. 1. That determination was upheld by the Court of Appeal. The constitutional questions before this Court queried whether s. 88(1)(c) of the Motor Vehicle Act infringes s. 12 of the Charter and, if so, whether the infringement is justified under s. 1.

Held (Lamer C.J. and McLachlin and Stevenson JJ. dissenting): The appeal should be allowed. The mandatory minimum sentence imposed pursuant to s. 88(1)(c) of the Motor Vehicle Act for a first conviction of driving while prohibited does not infringe s. 12 of the Charter when the prohibition from driving is made pursuant to s. 86(1)(a)(ii) of the Act. Other prohibitions from driving, violation of which also triggers the mandatory minimum sentence in s. 88(1)(c), are not at issue in this appeal.

Per La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: The general test for determining whether a punishment is cruel and unusual within the meaning of s. 12 is one of gross disproportionality, which must consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case. Other factors which may legitimately inform an assessment are whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, whether there exist valid alternatives to the punishment imposed, and to some extent whether a comparison with punishments imposed for other crimes in the same jurisdiction reveals great disproportion. The test is not one which is quick to invalidate sentences crafted by legislators. It will only be on rare occasions that a court will find a sentence so grossly disproportionate that it violates s. 12 of the Charter.

There are two aspects to the analysis of invalidity under s. 12. One aspect involves the assessment of the challenged penalty or sanction from the perspective of the person actually subjected to it, balancing the gravity of the offence in itself with the particular circumstances of the offence and the personal characteristics of the offender. If it is concluded that the challenged provision provides for and would actually impose on the offender a sanction so excessive or grossly disproportionate as to outrage decency in those real and particular circumstances, then it will amount to a prima facie violation of s. 12 and will be examined for justifiability under s. 1 of the Charter. If the particular facts of the case do not warrant a finding of gross disproportionality, there may remain another aspect to be examined, namely a Charter challenge or constitutional question as to the validity of a statutory provision on grounds of gross disproportionality as evidenced in reasonable hypothetical circumstances.

The constitutional questions in this case are restricted in focus to the particular form of prohibition to which respondent was subjected under s. 86(1)(a)(ii) of the Act. In relation to the particular offence and respondent's personal situation, s. 88(1)(c), applied in a severed fashion in respect of s. 88(1)(a) and s. 86(1)(a)(ii), does not infringe s. 12 of the Charter. Commission of the offence specified by ss. 86(1)(a)(ii) and 88(1) is grave. The gravity of the offence must be assessed in light of the legislative purpose and the underlying driving offences giving rise to the prohibition. An order of prohibition made under s. 86(1)(a)(ii) is aimed in large measure at safeguarding the health and lives of citizens using the highways of a province, as reflected in the requirements that the prohibited individual must have built up an "unsatisfactory driving record" and that the prohibition be "in the public interest". Only bad drivers with an unsatisfactory driving record are prohibited under s. 86(1)(a)(ii) because it is especially those drivers who are dangerous to innocent citizens using the roads in a responsible manner. The Act's emphasis on the promotion of responsible driving and penalizing of irresponsible driving is further reflected in the requirement in the offence that a person knowingly drive while prohibited. As well, because the offence is difficult to detect, there is a great temptation on the part of many prohibited drivers to commit it, and a legislature may therefore rationally conclude that for the purpose of deterrence a serious penalty must attach to it. The gravity of the offence of driving while prohibited is made more obvious upon review of the Act's procedural safeguards, which ensure that only bad drivers will be prohibited from driving under s. 88(1)(a) in application to s. 86(1)(a)(ii).

Having been prohibited from driving, respondent knowingly and contemptuously violated the prohibition. There was no indication that he was urgently required to drive his car on the day in question, nor was there any submission as to a relevant personal characteristic of his that would justify a mitigated or lesser sentence than the mandatory minimum. The effects of the sentence cannot reasonably be said to outrage standards of decency or be seen as grossly disproportionate to the wrongdoing. The effect of the seven-day sentence is lighter than might first appear, since the sentence can be fashioned to be fully served on a few weekends, as in this case.

It is unlikely that the general application of the offence would result in the imposition of a grossly disproportionate sentence amounting to cruel and unusual punishment. Respondent has not discharged the onus of demonstrating a reasonable hypothetical circumstance in which enforcement of the statute would violate s. 12. The regulatory system of penalty points and internal reviews guarantees that it will be exceptionally rare that a so-called "small offender" will ever be subjected to the minimum penalty in s. 88(1)(c). By divorcing the offence of driving while prohibited from the various infractions which led up to the prohibition, the Court of Appeal accorded insufficient weight to the gravity of the offence and to the relatively high threshold for its commission.
Per Lamer C.J. and McLachlin and Stevenson JJ. (dissenting): The mandatory minimum sentence of seven days' imprisonment plus a fine would in some cases be clearly disproportionate and shocking to the Canadian conscience, and hence violate the guarantee against cruel and unusual punishment in s. 12 of the Charter. The provision cannot be saved under s. 1 of the Charter because it is overbroad: no obvious or probable need for a deterrent which has such an indiscriminate reach has been demonstrated.

Rather than alleviating the particular offences from the purview of s. 88(1)(c) on a case-by-case basis, the Court should strike out the mandatory minimum sentence. An analysis which proceeds by severing potentially offending parts of s. 88 fails to answer the question posed on this appeal.

Furthermore, severing the reference in s. 88 to prohibitions other than selected cases under s. 86 of the Act has an effect analogous to reading down the statute, or applying the doctrine of constitutional exemption. To address s. 88 as though it referred only to prohibitions under s. 86 is to address a different scheme than that enacted by the legislature and leaves the constitutional status of the scheme uncertain, which runs counter to the fundamental principle that laws whose violation can result in imprisonment should be clear, certain and ascertainable.

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