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R. v. Goltz, [1991] 3 S.C.R. 485

 

Her Majesty The Queen                                                                   Appellant

 

v.

 

Willy Arthur Goltz                                                                              Respondent

 

and

 

The Attorney General for Ontario and

the Attorney General of Manitoba                                                   Interveners

 

Indexed as:  R. v. Goltz

 

File No.:  21826.

 

1991:  June 7; 1991:  November 14.

 

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.

 

Cases Cited

 

By Gonthier J.

 

                   Considered:  R. v. Smith, [1987] 1 S.C.R. 1045; referred to: R. v. Williams (1988), 26 B.C.L.R. (2d) 67;  R. v. Konechny (1983), 10 C.C.C. (3d) 233;  R. v. Lyons, [1987] 2 S.C.R. 309;  R. v. Luxton, [1990] 2 S.C.R. 711;  R. v. Guiller (1986), 48 C.R. (3d) 226;  Steele v. Mountain Institution, [1990] 2 S.C.R. 1385;  R. v. Alston (1985), 36 M.V.R. 67;  Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486;  Hundal v. Superintendent of Motor Vehicles (1985), 64 B.C.L.R. 273;  Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086;  MacKay v. Manitoba, [1989] 2 S.C.R. 357;  Perka v. The Queen, [1984] 2 S.C.R. 232.

 

By McLachlin J. (dissenting)

 

                   R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Seaboyer, [1991] 2 S.C.R. 577;  R. v. Wholesale Travel Group Inc., [1991] 2 S.C.R 154; Perka v. The Queen, [1984] 2 S.C.R. 232.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 1 , 12 .

 

Constitution Act, 1982, s. 52 .

 

Correction Act, R.S.B.C. 1979, c. 70, ss. 1, 15, 16, 18, 19, 47.

 

Miscellaneous Statutes Amendment Act (No. 2), 1981, S.B.C. 1981, c. 21, s. 55.

 

Motor Vehicle Act, R.S.B.C. 1979, c. 288, ss. 25, 83, 84, 85, 86(1)(a)(ii), 87, 88(1)(a), (c), 94, 150(1), 214.

 

Motor Vehicle Act Regulations, B.C. Reg. 26/58, Division 28.

 

Motor Vehicle Amendment Act, 1982, S.B.C. 1982, c. 36, s. 19.

 

Offence Act, R.S.B.C. 1979, c. 305, ss. 77, 122.

 

Authors Cited

 

British Columbia.  Motor Vehicle Task Force.  Report.  Victoria:  The Task Force, 1980.

 

Robertson, Carol.  "The Judicial Search for Appropriate Remedies Under the Charter :  The Examples of Overbreadth and Vagueness".  In Charter Litigation.  Edited by Robert J. Sharpe.  Toronto:  Butterworths, 1987.

 

                   APPEAL from a judgment of the British Columbia Court of Appeal (1990), 43 B.C.L.R. (2d) 161, 52 C.C.C. (3d) 527, 74 C.R. (3d) 78, 47 C.R.R. 247, 19 M.V.R. (2d) 89, affirming a judgment of the British Columbia County Court (1988), 44 C.C.C. (3d) 166, 66 C.R. (3d) 236, 11 M.V.R. (2d) 120, finding mandatory minimum sentence to be cruel and unusual punishment.  Appeal allowed, Lamer C.J. and McLachlin and Stevenson JJ. dissenting.

 

                   George H. Copley, for the appellant.

 

                   Kathryn Ford and Jack Thorhaug, for the respondent.

 

                   W. J. Blacklock, for the intervener the Attorney General for Ontario.

 

                   Lawrence McInnes and V. E. Toews, for the intervener the Attorney General of Manitoba.

//Gonthier J.//

 

 

                   The judgment of La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by

 

                   Gonthier J. -- The issue in the present appeal is whether s. 12  of the Canadian Charter of Rights and Freedoms  is violated by the minimum sentence prescribed by s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, in its application to s. 88(1)(a) and s. 86(1)(a)(ii) of that Act.

 

I -- Statement of Facts

 

                   On May 25, 1987, Willy Goltz was prohibited from driving by the B.C. Superintendent of Motor Vehicles, for a three-month period, pursuant to s. 86(1)(a)(ii) of the Motor Vehicle Act ("the Act").  The respondent had accumulated numerous penalty points for a variety of driving infractions, causing the Superintendent to deem the respondent's driving record unsatisfactory and to declare that the public interest required that he be prohibited from driving.  In pertinent part, the notice of prohibition sent by the Superintendent to the respondent read:

 

I ... SUPERINTENDENT OF MOTOR VEHICLES, hereby give you notice that I consider it to be in the public interest to prohibit you from driving a motor vehicle under section 86(1)(a)(ii) of the Motor Vehicle Act, and you are hereby prohibited. 

 

This prohibition from driving commences on the date you receive this notice and continues for a term of 3 months. 

 

                                                                    ...

 

I will consider any submissions in writing that you may wish to make as to why this prohibition order should be cancelled or should have a shorter term than set out above.

 

Your five year driving record is attached.

 

The specific nature of the respondent's infractions and the total of his accumulated points were not pleaded at trial, nor in the Court of Appeal.

 

                   On June 13, 1987, the respondent was stopped by an R.C.M.P. officer while driving a motor vehicle which the officer alleged was speeding.  The respondent received a ticket for the alleged infraction, and upon discovery that he had been prohibited from driving, was given a "notice to appear", to answer a charge under s. 88(1) of the Act.

 

                   At trial in Provincial Court, the respondent was found guilty of the offence of driving while prohibited and was sentenced to the minimum penalty of seven days' imprisonment, to be served intermittently on consecutive three-day weekends, and a $300 fine, to be paid within three months of the date of judgment.  The constitutional validity of the minimum sentence was argued before the Provincial Court, which concluded that s. 12  of the Charter  was not violated by s. 88(1) of the B.C. Motor Vehicle Act.

 

                   The respondent appealed the Provincial Court decision to the County Court of British Columbia where Hogarth Co. Ct. J. held that the sentencing provision in s. 88(1)(c) violated s. 12  of the Charter  and could not be justified under s. 1 .  That determination was later upheld by the decision of the British Columbia Court of Appeal, which determination forms the subject matter of this appeal.

 

II -- Relevant Legislation

 

Motor Vehicle Act, R.S.B.C. 1979, c. 288

 

                   86. (1) Notwithstanding that a person is or may be subject to another prohibition from driving, where the superintendent considers it to be in the public interest, he may, with or without a hearing, prohibit the person from driving a motor vehicle  

 

(a) where the person

 

                                                                    ...

 

(ii)has a driving record that in the opinion of the superintendent is unsatisfactory,

 

                   87. (1) Every person who is prohibited from driving a motor vehicle under section 86 may, within 30 days after he receives notice of prohibition from driving a motor vehicle, appeal the prohibition to a County Court.

 

                   88. (1) A person who drives a motor vehicle on a highway or industrial road knowing that

 

(a)he is prohibited from driving a motor vehicle under section 84, 85, 86 or 214, or

 

(b)his driver's licence or his right to apply for or obtain a driver's licence is suspended under section 25, 83, 87, 88, 94 or 214X as it was before its repeal and replacement or its amendment came into force pursuant to the Motor Vehicle Amendment Act, 1982,

 

commits an offence and is liable,

 

(c)on a first conviction, to a fine of not less than $300 and not more than $2 000 and to imprisonment for not less than 7 days and not more than 6 months ...

 

Motor Vehicle Act Regulations, B.C. Reg 26/58, as amended, Division 28 -- Point System

 

                   28.01  When the superintendent is satisfied that a person has committed an offence or a traffic rule violation by breaching a provision described in the schedule, the superintendent shall record on the driving record of that person the number of point penalties for that breach as set out in the schedule.

 

Canadian Charter of Rights and Freedoms 

 

                   12.  Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

 

III -- Judgments in the Courts Below

 

B.C. Provincial Court, Surrey, B.C.

 

                   The Trial Court decided it was bound by the decisions of the Vancouver County Court in R. v. Williams (1988), 26 B.C.L.R. (2d) 67, and the B.C. Court of Appeal in R. v. Konechny (1983), 10 C.C.C. (3d) 233, to hold that s. 88(1) of the Act was valid and did not amount to the imposition of cruel and unusual punishment in terms of s. 12  of the Charter .  It sentenced the respondent to seven days' imprisonment, to be served intermittently, over the course of consecutive three-day weekends.

 

Westminster County Court ((1988), 44 C.C.C. (3d) 166)

 

                   Judge Hogarth in the County Court of Westminster reviewed the relevant jurisprudence, including the decision of the Supreme Court of Canada in R. v. Smith, [1987] 1 S.C.R. 1045, before deciding that it was a certainty that sooner or later the prescribed penalty in a given case would be outrageous.  Applying the test of gross disproportionality established by the majority in Smith, he determined that, in combination, ss. 88(1)(a) and (c) violate s. 12  of the Charter .  He further held that the violation could not be justified under s. 1  of the Charter .

 

British Columbia Court of Appeal ((1990), 43 B.C.L.R. (2d) 161)

 

                   The Court of Appeal, speaking unanimously through Wood J.A., upheld the decision of Hogarth Co. Ct. J.  In its reasons for judgment, the Court noted that the test of cruel and unusual punishment employed by the majority in Smith was significantly different from that used in Konechny, supra, and that the emphasis in Smith on the personal characteristics of the offender and the particular circumstances of the offence was to be accorded great weight.

 

                   Despite the Court of Appeal's focus on the particular circumstances of a case, it compared the enforcement and sentencing provisions in s. 88 with those of other offences.  It found that there was "little in the way of intrinsic danger to the community at large" by a commission of the offence of driving while prohibited and that, as a consequence, there was little justification for a minimum sentence of seven days' imprisonment.  As Wood J.A. expressed this idea, at p. 170:

 

It is, after all, the nature of the driving, and not the fact that such driving is prohibited, which represents a danger to society.  And yet, significantly, for many types of driving which the statute clearly identifies as dangerous, such as speeding, disobeying traffic control devices and driving without due care and attention, not only is there no required minimum term of imprisonment upon conviction, but the maximum punishment prescribed in each case is a number of penalty points, which are noted on the offender's driving record....

 

                   When one looks to the criminal law, it is evident that there are many serious crimes the commission of which presents a real danger to society for which no mandatory minimum sentence is prescribed by the Criminal Code .

 

                                                                   . . .

 

                   A comparison of the relative severity of those many offences at law which do not carry a mandatory jail term as punishment for a first conviction with that of the offence here under consideration leads me to the conclusion that there is no reason, in principle, why the latter must carry a mandatory minimum punishment of seven days' imprisonment.

 

                   The court stressed that the offence of driving while prohibited must be assessed on its own, without considering the offences and infractions which led up to the prohibition, at p. 173:

 

The circumstances of the offence which are relevant to the tests under consideration are those related to the driving which is prohibited, and not those which led to the prohibition.  If a sentence of seven days is wholly disproportionate in any given case ... its constitutionality cannot be salvaged on the grounds that it is in some way justified as a form of supplementary punishment for offences of which the offender has already been convicted and for which he has already been punished.

 

                   In reflecting on hypothetical circumstances which might infringe s. 12 , and emphasizing that there are an unlimited number of different circumstances under which the offence could be committed, the court proceeded to find a violation of s. 12  based on its view that "inevitably there will be cases where a mandatory minimum sentence of seven days' imprisonment, plus a fine of $300, will be so grossly disproportionate to what would otherwise have been appropriate that to impose such a sentence will clearly offend against s. 12  of the Charter " (p. 172).  The court also noted that while a defence of necessity might in rare cases save an exceptional offender from the punishment prescribed by s. 88(1)(a), that defence would not eliminate the certainty that sooner or later a case of gross disproportionality would arise.

 

                   Finally, the court held that while the objective of protecting the public from bad drivers was important, and was rationally connected to the legislative purpose underlying the minimum sentence, namely to deter prohibited drivers from violating that prohibition, nevertheless the seven-day minimum did not impair the s. 12  right as little as possible, so it was not justifiable under s. 1  of the Charter .  In its opinion, this conclusion was reinforced by the fact that no other province in Canada had thought it necessary to impose a mandatory minimum prison sentence on drivers found violating an official prohibition.  The B.C. Court of Appeal therefore struck down the minimum punishment provided by s. 88(1)(c), and directed that the matter of the appropriate sentence be remitted to the Trial Court.

 

IV -- Issues

 

                   The issues raised in this appeal are the following constitutional questions stated by Lamer C.J. on September 11, 1990:

 

1.Does the mandatory minimum sentence of seven days' imprisonment, together with a fine of $300, imposed pursuant to s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, for a first conviction of driving while prohibited infringe or deny rights and freedoms guaranteed by s. 12  of the Canadian Charter of Rights and Freedoms ?

 

2.If the mandatory minimum sentence imposed pursuant to s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, for a first conviction of driving while prohibited infringes or denies rights and freedoms guaranteed by s. 12  of the Charter , is that sentence justified by s. 1  of the Charter  and therefore not inconsistent with the Constitution Act, 1982 ?

 

                   Counsel for the Attorney General of British Columbia, in his oral submissions, limited his defence of s. 88(1)(c) of the Motor Vehicle Act, to prohibition orders imposed via s. 86(1)(a)(ii).  I see no reason why the Attorney General of British Columbia could not so limit his case. 

 

                   The constitutional questions are restricted in focus to the particular form of prohibition to which the respondent was subjected under s. 86(1)(a)(ii) of the Act.  Other forms of prohibition, violation of which also trigger the mandatory minimum sentence in s. 88(1)(c), are not at issue in this appeal.

 

V -- Analysis

 

1.Does the mandatory minimum sentence of seven days' imprisonment, together with a fine of $300, imposed pursuant to s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, for a first conviction of driving while prohibited infringe or deny rights and freedoms guaranteed by s. 12  of the Canadian Charter of Rights and Freedoms ?

 

Background to the Challenged Provision

 

                   The Government of British Columbia established a Motor Vehicle Task Force in 1978.  Its mandate was to examine the laws and procedures governing highway users in British Columbia and to recommend changes to promote safe driving habits, in order to reduce a growing number of accidents and bodily injury claims.  After the Task Force issued its Report in 1980, the Legislative Assembly enacted a mandatory penalty for driving while a person's licence was suspended.  It provided for a fine of not less than $300 and for imprisonment of not less than seven days (Miscellaneous Statutes Amendment Act (No. 2), 1981, S.B.C. 1981, c. 21, s. 55).  In 1982, the Assembly amended the Motor Vehicle Act to apply the mandatory penalty in s. 88 of the Motor Vehicle Act to prohibitions as well as to suspensions (Motor Vehicle Amendment Act, 1982, S.B.C. 1982, c. 36, s. 19).  That enactment was to give effect to one of the many recommendations of the Task Force.  It is that amended provision which is challenged in this appeal.

 

                   Shortly after the mandatory sentencing provision came into effect, on August 15, 1981, the mandatory minimum sentence of seven days' imprisonment was challenged in R. v. Konechny, supra, on the grounds that it violated s. 9  and s. 12  of the Canadian Charter of Rights and Freedoms .  A majority of the British Columbia Court of Appeal held that the sentencing provision did not violate the Charter  because the sentence was not grossly disproportionate to the wrongdoing.  Macdonald J.A. indicated, at p. 248, that the concept of cruel and unusual punishment "is restricted to punishment at a high level of severity" and agreed with McFarlane J.A. that seven days' imprisonment for driving when knowingly prohibited was not excessive.

 

                   The mandatory minimum in s. 88 of the Act was again challenged subsequent to this Court's determination in R. v. Smith, supra, with conflicting results in the County Court -- in R. v. Williams, supra, and in the case on appeal.  In the case on appeal, Wood J.A. in the court below indicated at p. 168 that in his view:

 

... the decision of the majority in the Smith case must, in that sense, be taken to have reopened the issue which had apparently been decided in Konechny.

 

                   It is Smith which must therefore be closely examined.  For it is the test set out there which led the Court of Appeal in this case to a different result than that reached in its initial review of s. 88(1)(c) in Konechny, supra.

 

The General Test for Determining Violations of s. 12  of the Charter 

 

                   The current test for determining whether a law prescribes a cruel and unusual punishment was established in R. v. Smith, supra, per Lamer J., as he then was.  The test was born of an extensive review of the history and meaning of the principle against cruel and unusual punishment, which background need not be repeated here.  That test has been subsequently reaffirmed in the cases of R. v. Lyons, [1987] 2 S.C.R. 309, and R. v. Luxton, [1990] 2 S.C.R. 711.

 

                   In Smith, the Court struck down a seven-year minimum sentencing provision which applied to the offence of importing narcotics under s. 5(1) of the Narcotic Control Act.  In its view, that mandatory sentence amounted to cruel and unusual punishment under s. 12  of the Charter .  Each member of the Court in Smith accepted the general principle that a sentence which is grossly or excessively disproportionate to the wrongdoing would infringe s. 12 .  The Smith test accords much weight to the particular circumstances of the offender and to the specific factual circumstances under which the offence was committed.  The Court decided that the effects of the punishment on a particular individual are to be closely considered in assessing the constitutional validity of a prescribed sentence.

 

                   The general standard for determining s. 12  infringements is contained in the following passage from the judgment in Smith, at p. 1072:

 

... the protection afforded by s. 12  governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed....  The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12  of the Charter  is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, "whether the punishment prescribed is so excessive as to outrage standards of decency".  In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

 

... The test for review under s. 12  of the Charter  is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive.  [Emphasis added.]

 

Constitutive Elements of the General Test of Gross Disproportionality

 

                   Smith states that a determination of gross disproportionality must consider the following essential elements as stated by Lamer J., at p. 1073:

 

... the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender.... 

 

                   One must also measure the effect of the sentence actually imposed.

 

                   The assessment must not examine a wider set of concerns at this point.  Lamer J. indicated, at p. 1073:

 

The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry.  This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves.  If a grossly disproportionate sentence is "prescribed by law", then the purpose which it seeks to attain will fall to be assessed under s. 1 Section 12  ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1  permits this right to be overridden to achieve some important societal objective.

 

                   Although not in themselves decisive to a determination of gross disproportionality, 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.  An arbitrarily imposed sentence does not necessarily result in gross disproportionality and does not necessarily violate s. 12 .  Lamer J. held that arbitrariness is "a minimal factor in the determination of whether a punishment or treatment is cruel and unusual" (at p. 1076), because s. 9  and s. 15  of the Charter  are the provisions most suitably tailored to protect against it, and because s. 12  is concerned primarily with the effect of a punishment (at p. 1075).

 

                   The challenged provision of the Narcotic Control Act was held to infringe s. 12  because it was, at p. 1078:

 

... inevitable that, in some cases, a verdict of guilt will lead to the imposition of a term of imprisonment which will be grossly disproportionate.

 

                   This is what offends s. 12 , the certainty, not just the potential.

 

As will be seen below, this formulation does not envision that any or all imaginable commissions of the offence in which the punishment would be grossly disproportionate to the wrongdoing warrant a finding of infringement of s. 12 .

 

                   The foregoing elements govern application of the test of gross disproportionality under s. 12  of the Charter .  It is not a simple test.  It requires that multiple factors be carefully examined and weighed against each other, although each of the subordinate factors listed by Lamer J. in Smith need not be considered in every case.  They are guidelines which, although not determinative in themselves, help to assess whether the punishment is grossly disproportionate (Smith, at p. 1074).

 

                   Moreover, it is clear from both Smith and Lyons, supra, that the test is not one which is quick to invalidate sentences crafted by legislators.  The means and purposes of legislative bodies are not to be easily upset in a challenge under s. 12 .  In Smith, the Court explained, per Lamer J., at pp. 1077 and 1072:

 

A minimum mandatory term of imprisonment is obviously not in and of itself cruel and unusual.  The legislature may, in my view, provide for a compulsory term of imprisonment upon conviction for certain offences without infringing rights protected by s. 12  of the Charter .

 

                                                                   . . .

 

We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence.  Section 12  will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.

 

                   This principle was confirmed by La Forest J., on behalf of the unanimous Court in Lyons, supra, at pp. 344-45:

 

The word "grossly", it seems to me, reflects this Court's concern not to hold Parliament to a standard so exacting, at least in the context of s. 12 , as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender.

 

                   On behalf of this Court, Lamer C.J. again affirmed this approach in Luxton, supra, involving a s. 12  challenge to a section of the Criminal Code  creating a 15-year increase in minimum parole eligibility for those convicted of murder during unlawful confinement.  In rejecting the challenge, Lamer C.J. cited a passage from R. v. Guiller (1986), 48 C.R. (3d) 226 (Ont. Dist. Ct.), which he had previously quoted in Smith, and which reads, at p. 725:

 

                   It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences.  Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment.  While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter  is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest cases....

 

                   This message applies equally to the considered views of a provincial legislature for there is no material difference, from the perspective of Charter  scrutiny under s. 12 , between the acts of Parliament and the acts of a provincial legislative assembly.  As well, since the minimum sentence prescribed by s. 88(1)(c) is the serious sanction of imprisonment, it is not significant that s. 88 creates an offence in a provincial statute and not an offence in the Criminal Code .

 

                   Further support for the principle that s. 12  will not easily be infringed is contained in the recent decision of this Court in Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, per Cory J.  The Court stated, at p. 1417:

 

                   It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12  of the Charter .  The test for determining whether a sentence is disproportionately long is very properly stringent and demanding.  A lesser test would tend to trivialize the Charter .

 

                   The deference to legislated sentences signalled by these passages is especially comprehensible when one considers the broad and varied purposes of penal sanctions.  In Lyons, supra, La Forest J. articulated the common view that while sentences are partly punitive in nature, they are mainly imposed for the protection of the public.  This view accords with the purpose of the criminal law in general and of sentencing in particular.  He stated, at p. 329:

 

In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender.

 

                   This acknowledgement that sanctions serve numerous purposes underscores the legitimacy of a legislative concern that sentences be geared in significant part to the continued welfare of the public through deterrent and protective aspects of a punishment.  This perspective is explicitly affirmed in R. v. Luxton, supra, per Lamer C.J., at p. 721.  Thus, while the multiple factors which constitute the Smith test are aimed primarily at ensuring that individuals not be subjected to grossly disproportionate punishment, it is also supported by a concern to uphold other legitimate values which justify penal sanctions.  These values unavoidably play a role in the balancing of elements in a s. 12  analysis.

 

Applying These Elements of the Smith Test to the Facts on Appeal

 

Reconciling "Particular Circumstances and Personal Characteristics" with the Need for General Assessment of the Validity of Challenged Legislation

 

                   Smith makes it plain that gross disproportionality must be determined by paying close attention both to the particular situation in which the offence occurred and to the personal traits of the offender, though it clearly does not go as far as a complete individualization of sentencing, which might put into question the constitutional validity of mandatory minimum sentences generally.  Moreover, where the constitutional validity of a statutory provision is at stake, and not merely the justice of a particular sentence imposed by a judge at trial, it will often be necessary to go beyond the specific facts of the appeal, to assess the proportionality of the sentence prescribed by statute.  Thus if it were determined that the minimum sentence as applied to Willy Goltz in the case on appeal was not grossly disproportionate to the wrongdoing in the unique circumstances of the case, it would not follow that s. 88(1)(c) of the Motor Vehicle Act, as a piece of general legislation applicable to all motorists in British Columbia, complies with the strictures of s. 12  of the Charter .  But this raises a question:  how does the test in Smith reconcile a concern for the particular circumstances of the offence with a necessarily more general assessment of the challenged sentencing provision as a whole?

 

                   The question is not greeted by an immediate or obvious answer.  The jurisprudence to date exhibits significant confusion about the use of hypothetical examples which may readily demonstrate that in some imaginable circumstances a minimum penalty might result in a punishment whose effects are grossly or excessively disproportionate to the particular wrongdoing in a given case.

 

The Two Aspects of an Analysis of the Application of s. 12 

 

                   The Court in Smith employed a hypothetical example which illustrated the potential unfairness of the minimum penalty of seven years' imprisonment for importing narcotics under s. 5(1) of the Narcotic Control Act.  It painted a picture of a tourist returning to Canada from another country with one marijuana cigarette, and contrasted this "small offender" with a serious hard drug dealer convicted of importing a large quantity of heroin (at pp. 1056 and 1078).  It held that the challenged sentence would be grossly disproportionate to the appropriate sentence in the case of that imaginary small offender.  Thus, irrespective of the possible appropriateness of a seven-year prison term for the actual offender in Smith -- a 27-year-old with two previous convictions, caught returning from Bolivia in possession of cocaine worth more than $100,000 on the street, and who had pleaded guilty to the charge -- the provision cast too wide a net.  It was invalid because its potential effects were so excessive as to outrage decency.

 

                   In this appeal also, the British Columbia Court of Appeal turned its mind, in an abstract fashion, to hypothetical circumstances before deciding that s. 88(1)(c) of the Act is invalid under s. 12 .  Although I am of the view that the approach of the Court of Appeal was in some respects mistaken, nonetheless it was appropriate for the Court of Appeal to contemplate hypothetical circumstances.

 

                   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 .  There may be no need to examine hypothetical situations or imaginary offenders.  This was not the case in Smith, and for that reason the Court was obliged to examine other reasonably imaginable circumstances in which the challenged law might violate s. 12 .

 

                   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, as opposed to far-fetched or marginally imaginable cases.  (See generally C. Robertson, "The Judicial Search for Appropriate Remedies Under the Charter : The Examples of Overbreadth and Vagueness" in R. Sharpe, Charter Litigation (1987).)

 

                   The section 12  analysis must now be undertaken as to both aspects.  In the "particularized" section of analysis, the considerations of gravity of the offence, the particular circumstances of the case, the personal characteristics of the offender, and the effects of the sentence must be examined in light of the facts of the instant appeal.

 

First Aspect:  Applying the Smith Test to the Actual Offender

 

                   (i)  Gravity of the Offence

 

                   An order of prohibition made under s. 86(1)(a)(ii) of the B.C. Motor Vehicle Act is aimed in large measure at safeguarding the health and lives of citizens using the highways of a province.  This aim is directly reflected in s. 86(1)(a)(ii) of the Act which specifies two principal conditions which must be satisfied before the Superintendent may use his authority to prohibit a person from driving.  The first is that the prohibited individual must have built up an "unsatisfactory driving record".  The second is that the prohibition be "in the public interest".

 

                   Only bad drivers with an unsatisfactory driving record are prohibited under s. 86(1)(a)(ii) of the Act because it is especially those drivers who are dangerous to innocent citizens using the roads in a responsible manner.  As the Crown argued, the purpose of s. 88(1)(c) is straightforward.  It is:  "to keep proven bad drivers off the road.  By general and specific deterrence, it discourages a person from driving while prohibited and thus promotes safety generally on the highways."

 

                   The administrative scheme for the prohibition of bad drivers and imposition of mandatory minimum sentences was enacted as a consequence of the extensive study by the Motor Vehicle Task Force.  It had found that the more penalty points a driver had as a result of driving infractions, the more likely it was that the individual would not be a responsible, safe driver.

 

                   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.  This is expressly provided by s. 88(1) which reads:  "A person who drives a motor vehicle on a highway or industrial road knowing that (a) he is prohibited from driving a motor vehicle ... commits an offence" (emphasis added).  The section has been interpreted accordingly (R. v. Alston (1985), 36 M.V.R. 67 (B.C.C.A.)).  A driver who drove while prohibited from driving, yet who was unaware of the prohibition, is not as irresponsible as the person who contemptuously drives while knowing that he is prohibited from doing so.  In that respect, it is a graver offence knowingly to drive while prohibited than would be an offence of driving while unaware of a prohibition.

 

                   Additionally, because the offence is difficult to detect -- since a police officer will not know a driver has been prohibited until that driver is stopped and questioned -- there is a great temptation on the part of many prohibited drivers to commit the offence.  Consequently a legislature may rationally conclude that for the purpose of deterrence a serious penalty must attach to it.

 

                   In step with the Court of Appeal, the respondent argued that a distinction must be made between the offence of driving while prohibited and the infractions giving rise to it.  He asserts that the gravity of the infractions cannot contribute to the gravity of the s. 88(1) offence since they are separate offences with separate sentences.  The respondent argued further that the purpose of s. 88(1)(c) is not to keep bad drivers off the road but to punish those individuals who, having lost their driving privileges, simply decide to drive.  With respect, I must disagree with such reasoning.

 

                   The purpose and effect of the seven-day minimum sentence cannot reasonably be understood without reference to the underlying traffic rule infractions or Criminal Code  offences which will have been committed by a person convicted under s. 86(1)(a)(ii).  The record of those infractions is the principal justification for punishment and proof of the threat to public safety by the continued driving of the prohibited driver.  While it is possible in logic to draw a line between the offence of knowingly driving while prohibited simpliciter and the driving offences upon which that offence is grounded, common sense and the purposes of the legislative scheme do not permit the distinction.  Assessing the gravity of the offence of knowingly driving while prohibited, without considering the reasons for the prohibition, would be mere abstraction; an assessment in a vacuum.  To analyze s. 88(1)(c) without considering the conduct it is dependent on for its justification would be like attempting to understand a provision stating "X is subject to the foregoing definition in subsection (1)" without first examining subsection (1).  The meaning of "X" can only be gathered when one knows what precedes it.

 

                   Evidence was introduced at trial which showed that a small number of bad drivers are involved with a disproportionate number of traffic‑related accidents overall.  One estimate adduced by counsel for the Crown claimed that five percent of the drivers in British Columbia are involved in 44 percent of the reported accidents.  As the Superintendent of Motor Vehicles noted in his 1987 Report:

 

In British Columbia, traffic accidents and traffic law violations represent the single largest financial burden on the citizens and government of this Province....  The cost in human terms cannot be measured. 

 

Motor vehicle accidents have been increasing steadily since 1984, with 1987 figures the highest recorded since 1981.  Last year in British Columbia a total of 622 persons were killed in motor vehicle accidents and 41,291 people were injured.  This translates to an average of 113 persons injured each day, and one person killed every 14 hours.

 

                   The importance of seriously punishing bad drivers who, in open contempt of the law and in contravention of a direct order by the Government, choose to drive while prohibited has already been noted in a decision of this Court.  In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, Lamer J. (as he then was) on behalf of the majority wrote, at p. 521:

 

                   I do not take issue with the fact that it is highly desirable that "bad drivers" be kept off the road.  I do not take issue either with the desirability of punishing severely bad drivers who are in contempt of prohibitions against driving.

 

                   Although these comments were made in the course of a s. 1  analysis, in a challenge to an absolute liability offence attracting a mandatory minimum sentence, and are therefore not directly pertinent when considering the gravity of the offence under s. 12 , nevertheless the statement is an acknowledgement that the offence of driving while prohibited for having a record of bad driving is very serious and one which may warrant severe punishment.  To that extent, it supports the case for the Crown.

 

                   The gravity of the offence of driving while prohibited is made more obvious upon review of the Act's procedural safeguards.  One's understanding of the seriousness of the offence is advanced by examining the Superintendent's sound administrative system which identifies bad drivers, for its regulatory safeguards ensure that only bad drivers will be prohibited from driving under s. 88(1)(a) in application to s. 86(1)(a)(ii) of the Act.

 

                   In the first place, the Motor Vehicle Act provides for a penalty point system which calculates accumulating demerits, ranging from two to ten points depending on the severity of the offence.  At various levels of accumulated points, the Superintendent is notified.  The Superintendent then takes measures to issue a letter of warning to a driver, indicating that if he or she continues to accumulate penalty points the Superintendent may take remedial steps.  Once a driver accumulates 15 penalty points, the Superintendent is again alerted and he will then decide to either place the driver on probation, send a notice of intent to prohibit which gives the driver 21 days to show why his or her licence should not be suspended, or actually issue a notice of prohibition.

 

                   If the Superintendent ultimately sends a notice of prohibition, it is his practice to invite the person to make submissions in writing as to why the prohibition order should be cancelled or shortened in duration and to indicate that the Superintendent will review the person's case if such submissions are received.  In the instant appeal, the respondent was sent such a letter.  The letter also advises the driver of his or her right to appeal the Superintendent's final decision to a judge of the County Court, under s. 87 of the Act, and further notifies the driver of the minimum penalty imposed upon a conviction of driving while prohibited.  If a driver disputes the accuracy of the driving record, the Superintendent's practice is to hold the prohibition in abeyance while determining whether an error was made in the calculation of points.  Of course, it is also open to the driver to dispute the merits of a traffic rule infraction at the time of the alleged infraction.  Finally, in exercising his authority to prohibit a person from driving in the public interest, he must at all times exercise it in accordance with the principles of natural justice (Hundal v. Superintendent of Motor Vehicles (1985), 64 B.C.L.R. 273 (C.A.), per Nemetz, C.J.B.C., at pp. 275-76, Motor Vehicle Act Regulations, Division 28).

 

                   While, as Smith indicates, the test of gross disproportionality is not dependent on procedural safeguards built into an offence, nonetheless a review of these procedures in the instant appeal markedly reveals that the offence is not trivial or arbitrary.  On the contrary, the mandatory minimum sentence contained in s. 88(1)(c) and applicable to s. 86(1)(a)(ii) is based squarely on a legislative concern to isolate bad drivers for the better protection of the public.  Most importantly, it demonstrates that a person who has been given this panoply of safeguards against wrongful or inappropriate prohibition, yet knowingly violates the notice in contempt of the public interest and the sanction which seeks to protect it, commits a graver offence than a person who violated the prohibition unwittingly and who had not been given this range of intermediate opportunities to mend his ways, to inquire into the reasons for the prohibition, and to appeal the Superintendent's decision.

 

                   The consequences of a prohibition will, of course, be known to both the superintendent and the judge on the appeal.  This provides a reasonable assurance that the prohibition will not be imposed for a trivial infraction.  To posit that a prohibition can occur for a trifling reason is to assume failure of the system.  There is no evidence of this having occurred and it is not suggested that it occurred in this case.

 

                   In partial summary, it must be said that commission of the offence specified by s. 86(1)(a)(ii) and s. 88(1) of the Motor Vehicle Act is grave.  It may involve a risk to the lives and limbs of innocent users of the province's roads, by persons designated bad drivers by a fair and cautious identification system, who knowingly step outside the law.

 

 

                   (ii)  The Particular Circumstances of the Case, and

 

                   (iii) The Personal Characteristics of the Offender

 

                   Here the particular circumstances of the offence are straightforward.  Although the number of penalty points which the respondent had accumulated prior to his prohibition was not submitted to the Court, we have seen that the administrative practice of the Superintendent of Motor Vehicles in British Columbia is to wait until numerous points have accumulated before ultimately deciding whether, in the public interest, a prohibition is necessary.  Counsel for the Crown indicated that there will have been a number of traffic rule violations or several Criminal Code  convictions demonstrating unsafe driving habits before a notice of prohibition is issued.  A decision to prohibit will typically be made if a driver has amassed 15 points in a two-year period.  That the respondent had demonstrated himself to be an irresponsible or bad driver is not at issue.  It appears from the record that he did not take the opportunity to dispute the accuracy of the record of penalty points on which his unsatisfactory driving was based.  At no point in argument did the respondent take exception to this basic premise.

 

                   From a strict rule of law perspective, it might be preferable that the regulations under the Motor Vehicle Act were specified in a type of hierarchical code in which the exact total of penalty points derived from various combinations of traffic or driving offences would trigger prohibition.  Such a code would remove discretion from the decision.  Yet that would lose the advantages of flexibility and would result in an unworkable system.  In effect, it would prevent the Motor Vehicle Branch from considering the unique mix of bad driving elements in a person's particular driving record.

 

                   The regulations under the Act list 148 different forms of traffic law breaches and Criminal Code  offences to which various penalty points attach.  They range from "driving over newly painted lines" (two penalty points) to "causing death by criminal negligence" (10 penalty points).  The range of offences between these examples is overwhelming.  It would be irrational and practically impossible to attempt to establish mandatory thresholds for each of the astronomical number of combinations of offences which might trigger prohibition.  We have seen that in forming an opinion about whether prohibition would be in the public interest, the practice of the Superintendent and the Motor Vehicle Branch is to permit a number of traffic rule violations and Criminal Code  offences to accumulate before that decision is made and a prohibition notice issued.  That administrative practice, performed in accordance with the principles of natural justice, is both desirable and reasonable.

 

                   In any event, having been prohibited from driving, the respondent knowingly and contemptuously violated the prohibition.  Indeed, it was alleged by the apprehending R.C.M.P. officer that the respondent was speeding.  That belief caused the respondent to be pulled over on the highway.  The court was given no reason to believe that the respondent was responding to an emergency or was in any way urgently required to drive his car on the day in question.  Nor was there any submission to the court as to any relevant personal characteristic of the respondent that would justify a mitigated or lesser sentence than the mandatory minimum.  It is clear that these factors provide no counterweight to offset the gravity of the offence which the respondent committed.  The respondent is also unable to use the "effects of the sentence" in aid of his position.

 

                   (iv)  Effect of the Sentence

 

                   Smith states that the effect of the sentence must also be measured for gross disproportionality.  The effect of the sentence is "often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied" (p. 1073).  Smith indicated, by way of illustration, that 20 years for a first offence against property would be grossly disproportionate and would infringe s. 12 .

 

                   Here the effect of the sentence is different in kind from both the preceding example and from the seven‑year sentence challenged in Smith.  Seven days in prison for knowingly driving while prohibited, due to bad driving, is a far cry from seven years in prison for importing one marijuana cigarette or 20 years for committing a property-related offence.  This difference is made still clearer when the seven‑day sentence is examined in full context.

 

                   As the intervener the Attorney General for Ontario submitted in written argument, the effect of the seven‑day sentence is lighter than might first appear, since a court could fashion a sentence under s. 88(1)(c) whereby it would be fully served in just a few weekends.  Indeed in this case the sentence was to be served intermittently on consecutive three‑day weekends, in order that the respondent could continue to work without disruption.  In British Columbia, sentences of imprisonment may be limited by earned remission (Correction Act, R.S.B.C. 1979, c. 70, s. 18).  The law would permit a seven‑day sentence to be served in as little as five days.  If the sentence poses a true hardship, an imprisoned offender may under certain conditions be temporarily released for humanitarian, medical, or educational reasons (Offence Act, R.S.B.C. 1979, c. 305, ss. 77, 122; Correction Act, ss. 1, 15, 16, 18, 19 and 47).

 

                   I think it is plain that the effects of the sentence cannot reasonably be said to outrage standards of decency or be seen as grossly disproportionate to the wrongdoing.  They do not amount to cruel or unusual treatment under s. 12  in the present case.

 

                   Summary on First Aspect

 

                   In light of the foregoing considerations, I conclude that in relation to the particular offence and the personal situation of the respondent, the challenged provision of the Motor Vehicle Act does not infringe s. 12  of the Charter .  It is therefore unnecessary at this point to examine any other factors listed by Lamer J. in Smith.  However, whether s. 88(1)(c) would violate s. 12  in other circumstances which merit the concern of this Court must also be considered.  A constitutional question remains to be answered.  Thus, a brief review of the challenged sentencing provision, based on reasonable hypothetical circumstances, must be performed, to determine if it is likely that the general application of the offence would result in the imposition of a grossly disproportionate sentence amounting to cruel and unusual punishment.

 

Second Aspect:  Assessing s. 88(1)(c) Generally, Under Reasonable Hypothetical Circumstances

 

                   A reasonable hypothetical example is one which is not far-fetched or only marginally imaginable as a live possibility.  While the Court is unavoidably required to consider factual patterns other than that presented by the respondent's case, this is not a licence to invalidate statutes on the basis of remote or extreme examples.  Laws typically aim to govern a particular field generally, so that they apply to a range of persons and circumstances.  It is true that this Court has been vigilant, wherever possible, to ensure that a proper factual foundation exists before measuring legislation against the Charter  (Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1099, and MacKay v. Manitoba, [1989] 2 S.C.R. 357, at pp. 361-62).  Yet it has been noted above that s. 12  jurisprudence does not contemplate a standard of review in which that kind of factual foundation is available in every instance.  The applicable standard must focus on imaginable circumstances which could commonly arise in day-to-day life.

 

                   The particular facts of the instant appeal provide an important benchmark for what is a reasonable example in the context of s. 86(1)(a)(ii) of the Act.  This is because they represent one real application of the challenged statutory provision.  A finding of absence of Charter  infringement on the sole basis of these particular facts therefore lends support to a conclusion that the challenged legislation is valid under s. 12 .  In this appeal, this indication is particularly significant because the administrative guidelines and internal review system which screen out genuinely bad drivers ensure that responsible drivers will not be prohibited, and because the facts of this appeal are highly representative of commonly imaginable instances of the offence.

 

                   The regulatory system of penalty points and internal reviews guarantees that it will be exceptionally rare that a so‑called "small offender" of the kind hypothesized in Smith will ever be subjected to the minimum penalty in s. 88(1)(c).  This feature of the Motor Vehicle Act and its Regulations distinguishes the challenged legislation from that in Smith where a truly wide net was cast because of the multiple ways in which the offence of importing narcotics could be committed.  In Smith, one could foresee truly "small offenders" being subjected to the harsh minimum penalty.  Here that is not so.

 

                   If the other offences giving rise to prohibitions under s. 88(1)(a) had not been severable, s. 88(1) would admittedly cast a wider and potentially more suspect net, with a greater chance that a reasonably imaginable situation could arise in which punishment of seven days' imprisonment would be unduly excessive given the gravity of the offence.  Yet in this appeal the only aspect of s. 88(1)(c) being reviewed is that which relates to bad drivers covered by s. 86(1)(a)(ii) and s. 88(1)(a) of the Act.  The threshold for commission of the offence is high.  One must build up an unsatisfactory driving record.  The Superintendent must conclude that further driving is against the public interest.  One's avenues of internal review and appeal must have been exhausted.  And one must know that one has been prohibited from driving, yet drive anyway, in defiance of that prohibition.  Even at that, the sentence is only seven days, a punishment with very different dimensions than the sentence of seven years witnessed in the Smith case.  Finally, even if the careful internal review process at the Motor Vehicle Branch were to go awry, the County Court on an appeal under s. 87 could set the prohibition aside if an error in the calculation of points had been made, or if the court thought the person's driving record was satisfactory or that the public interest did not call for a prohibition.

 

                   As to the representative nature of the particular facts of the case on appeal, we are presented with an adult driver who had accumulated numerous penalty points, was prohibited from driving, knowingly disobeyed the prohibition seemingly for no reason other than convenience, and was caught on the highway when he appeared to a police officer to be speeding.  There are no unusual circumstances to muddy the waters.  It is a typical situation for this offence.  To that extent, the case is a useful indicator that, in reasonably imaginable circumstances, the minimum sentence will not be grossly disproportionate to the wrongdoing.

 

                   There remains to be examined whether there are reasonable hypothetical circumstances where the minimum sentence would be grossly disproportionate.  The Court of Appeal dealt with the issue as follows (at p. 172):

 

                   The fact is that there are an unlimited number of different circumstances under which the offence of driving while prohibited can be committed.  It is also apparent that the different circumstances personal to the offender will be as numerous and as varied as the number of offenders themselves.  Those facts, together with a modest amount of human experience, lead to the conclusion that inevitably there will be cases where a mandatory minimum sentence of seven days' imprisonment, plus a fine of $300, will be so grossly disproportionate to what would otherwise have been appropriate that to impose such a sentence will clearly offend against s. 12  of the Charter 

 

                   It would appear that the Court of Appeal was able to draw this conclusion by divorcing the offence of driving while prohibited from the various infractions which led up to the prohibition.  It is that which resulted in its according  insufficient weight to the gravity of the offence and to the relatively high threshold for commission of the offence.  Consequently, it could assume without more that a "small" or "best offender" could be conjured up to support a finding of gross disproportionality.  In my view, this distinction does not reflect reality and should not be made.

 

                   Furthermore, having little in the judgment of the Court of Appeal to rely upon,  the respondent also failed to discharge on his own the burden of showing gross disproportionality.  He argued that from among ss. 25, 83, 84, 85, 86, 87, 94 and 214 of the Act, certain provisions contemplate suspensions or prohibitions for relatively minor offences, such as failure to pay for a licensing examination (s. 85), or failure to reimburse the Insurance Corporation of British Columbia (I.C.B.C.) for money paid on a claim (s. 83(3)), which offences are not sufficiently grave to justify a minimum sentence of seven days' imprisonment.  The respondent hypothesized that a single parent, suspended for failure to repay the I.C.B.C., who was required to drive a seriously ill child to the hospital, would receive a grossly disproportionate punishment at the hands of s. 88(1)(c) if convicted of driving while suspended and sentenced to seven days in prison.

 

                   But whether or not that particular example demonstrates gross disproportionality is not relevant to this appeal.  It does not pertain to prohibitions under s. 86(1)(a)(ii) in tandem with s. 88(1)(a) of the Act.  The respondent's responsibility was to marshal a reasonable example pertaining to the precise provision being challenged.  That he did not do.

 

                   Even if the respondent had submitted a relevant example, it is doubtful that it would have overcome the strong indication of validity arising from the first, particularized step of s. 12  analysis.  Moreover, even if a "best offender" type of example were submitted and -- against probability -- it were accepted as being a reasonable hypothetical case, it is not clear that the respondent could make a successful claim of gross disproportion.

 

                   For instance, one can imagine an elderly person, perhaps a grandfather, prohibited from driving for a sizeable accumulation of penalty points related to the infraction of "slow driving", contrary to s. 150(1) of the Act.  If that person was required by medical emergency, no other means of transportation being available, to drive his grandson from a remote fishing hut beside a lake to a hospital in a nearby town, yet did so knowing he was prohibited from driving, he could be charged with violating s. 88 and would be subject to the minimum sentence of seven days in prison, even if it was his first conviction for such an offence.  Most reasonable persons would likely conceive that punishment as grossly disproportionate to the wrongdoing.  But this surely does not mean s. 88 is constitutionally invalid in terms of s. 12 .  As suggested by La Forest J. in Lyons, supra, it simply is not necessary that legislated punishments be "perfectly suited to accommodate the moral nuances of every crime and every offender" (p. 345).

 

                   Such a case would give rise to the common law defence of necessity recognized by this Court in Perka v. The Queen, [1984] 2 S.C.R. 232.  The doctrine exists as an excusing defence, operating in very limited circumstances, when conduct that would otherwise be illegal and sanctionable is excused and made unsanctionable because it is properly seen as the result of a "morally involuntary" decision, to do an act which in the eyes of society is thought to have positive social value outweighing the detrimental effect of the contravention.  It only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril, and where there are no reasonable legal alternatives to the conduct pursued (Perka, supra, at p. 259).  It seems virtually certain that a jury of peers would judge the actions of the prohibited driver in the foregoing example as meeting the requirements of this defence.  In that case, the punishment meted out by s. 88(1)(c) would not be imposed.  Therefore a grossly disproportionate sentence would not arise.

 

                   On the second aspect of the s. 12  analysis, the onus to demonstrate a reasonable hypothetical circumstance in which enforcement of the statute would violate s. 12  for imposing excessive or grossly disproportionate punishment remains with the party challenging the provision's validity.  In the instant appeal, that onus was not discharged.  Consequently, the challenge based on the second and hypothetical limb of the s. 12  inquiry must also fail.

 

                   Summary

 

                   There is no basis for the conclusion that s. 88(1)(c), applied in a severed fashion in respect of s. 88(1)(a) and s. 86(1)(a)(ii) of the Act, infringes s. 12  of the Canadian Charter of Rights and Freedoms .  The particular factual circumstances of the instant appeal do not warrant such a determination, nor do reasonable hypothetical circumstances.  The high threshold of gross disproportionality established in Smith and affirmed in Lyons, Luxton and Mountain Institution has not been crossed.  The pertinent provisions of the provincial law do not outrage standards of decency.  On the contrary, they promote valid and important social objectives through conventional forms of penal sanctions.  Accordingly, there is no reason to proceed to the second constitutional question dealing with s. 1  of the Charter .

 

                   Given the relatively minor nature of some of the other infractions listed in s. 88(1)(a) and which may result in prohibition triggering the minimum sentence in s. 88(1)(c), it may be that this conclusion would not apply to them.  Those infractions which are purely administrative in nature, and are not directly linked to bad driving appear particularly suspect.  Yet, their constitutionality is not at stake in this appeal and I will refrain from commenting further.

 

VI -- Disposition

 

                   The constitutional questions are therefore answered as follows:

 

1.Does the mandatory minimum sentence of seven days' imprisonment, together with a fine of $300, imposed pursuant to s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, for a first conviction of driving while prohibited infringe or deny rights and freedoms guaranteed by s. 12  of the Canadian Charter of Rights and Freedoms ?

 

A.No, when the prohibition from driving is made pursuant to s. 86(1)(a)(ii) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288.  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 and no answer is required or given.

 

                   The second constitutional question does not arise.  I would allow the appeal.  The respondent's sentence of seven days' imprisonment to be served intermittently on consecutive three-day weekends must stand.

 

//McLachlin J.//

 

                   The reasons of Lamer C.J. and McLachlin and Stevenson JJ. were delivered by

 

                   McLachlin J. (dissenting) -- I have read the reasons of Justice Gonthier; I respectfully differ from him in his characterization of the issue on this appeal and the basis of the decision of the Court of Appeal below. I would dismiss the appeal for the basic reasons enunciated by Wood J.A. of the British Columbia Court of Appeal.

 

The Reasons of the Court Below  

 

                   The decision of the Court below (1990), 43 B.C.L.R. (2d) 161, per Wood J.A., may be summarized as follows:

 

1.The issue is whether the mandatory minimum sentence required by s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, violated the guarantee against cruel and unusual punishment, in s. 12  of the Canadian Charter of Rights and Freedoms .

 

2.The test for whether a sentencing provision violates s. 12  of the Charter  is whether it is grossly disproportionate having regard to the gravity of the offence, the personal characteristics of the offender, and the particular circumstances of the case, per this Court's judgment in R. v. Smith, [1987] 1 S.C.R. 1045.

 

3.Without going into examples of hypothetical cases, the Court found a certainty that s. 88(1)(c) would, in some cases, lead to punishment which would be grossly disproportionate, violating s. 12 .

 

4.The violations could not be said to infringe the rights protected by s. 12   "as little as possible" nor would the effects in all circumstances be proportional to the objectives to be served; hence, s. 88(1)(c) could not be saved under s. 1 .

 

5.Rather than relieving particular respondents from the cruel and unusual aspects of a seven-day sentence, retaining s. 88 as is, the better course was to strike down the mandatory minimum punishment, leaving in place a full range of sentences to be employed as needed and as deemed appropriate by the trial judge.

 

                   Gonthier J., as I understand his reasons, parts company with the Court of Appeal on propositions 1 and 3.  His conclusions make it unnecessary to consider propositions 2, 4 and 5.

 

The Issue on the Appeal

 

                   Section 88(1)(c) of the Motor Vehicle Act imposes the mandatory minimum sentence where a person drives knowing that he or she is prohibited from driving a motor vehicle under any one of four sections of the Act -- ss. 84, 85, 86, and 214.  The Court of Appeal treated the issue on appeal as the constitutionality of s. 88(1)(c) of the Act in all its applications.  The question was whether the mandatory minimum sentence imposed by this provision for a first conviction of driving while prohibited for any of the specified reasons infringes the Charter .

 

                   Gonthier J.'s analysis, by contrast, is restricted to certain prohibitions under s. 86, and proceeds as though other prohibitions under s. 86 and ss. 84, 85 and 214 were not referred to in s. 88(1)(a) nor subject to the mandatory sentence provided in s. 88(1)(c) of the Act.  Gonthier J. concludes that the mandatory minimum sentence in relation to selected prohibitions under s. 86 would not infringe the Charter .  He goes on to suggest that if other prohibitions referred to in s. 88 were considered, the result might well be that the mandatory minimum sentence imposed by s. 88(1)(c) would be unconstitutional.  In effect, Gonthier J. holds that one particular application of s. 88(1)(c) does not violate the Charter , while admitting that other applications of the section might infringe the Charter 

 

                   This difference in focus, as I perceive it, constitutes the fundamental distinction between the reasons of Gonthier J. and those of the Court of Appeal of British Columbia.  The Court of Appeal looked at s. 88(1)(c) in all its potential applications and concluded that some of them would inevitably violate the Charter  prohibition of cruel and unusual punishment.  It therefore ruled s. 88(1)(c) unconstitutional.  Gonthier J., at p. 000, by contrast, considers s. 88 only in relation "to the particular form of prohibition to which the respondent was subjected under s. 86(l)(a)(ii)" -- as he puts it, he confines his analysis to the reference in s. 88(1)(c) to s. 86 and "severs" the references to other types of prohibitions.    Having excluded a priori potentially offending applications, he finds s. 88(1)(c) constitutional.

 

                   Attractive as the result may be, I have concluded that an analysis which proceeds by severing out from the impugned provision applications which might render it unconstitutional cannot be sustained.  Such an analysis does not, as I see it, address the issue posed by the constitutional question before us -- whether s. 88(l)(c), as enacted by the legislature in its entirety, is constitutional.  It also, as I will argue below, constitutes an abrupt departure from the approach this Court has hitherto taken to assessing legislation under the Charter  in general and to the guarantee against cruel and unusual punishment in particular.

 

                   First, an analysis which proceeds by severing potentially offending parts of s. 88 fails to answer the question posed on this appeal. The first constitutional question asks this Court: "Does the mandatory minimum sentence of seven days' imprisonment, together with a fine of $300, imposed pursuant to s. 88(1)(c) of the [Act]..., for a first conviction of driving while prohibited infringe or deny rights and freedoms guaranteed by s. 12 ...?"  The words "while prohibited" do not limit the question to a particular type of prohibition.  While this Court is not obliged to answer constitutional questions as stated, the Court must bear in mind that such questions constitute a precise formulation of the assistance requested and have usually served as the focus of the analysis and argument before the Court.  Before the Court, the Attorney General of British Columbia sought to limit the Court's review of s. 88(1)(c) to the prohibition of the respondent Goltz's driver's licence under s. 86(1)(a)(ii).  The respondent, however, insisted that the Court undertake a review of s. 88(1)(c) in its entirety, in accordance with the constitutional question before the Court. In argument, respondent's counsel addressed the constitutionality of s. 88(1)(c)'s  mandatory minimum sentence as applied to persons prohibited from driving under ss. 84, 85 and 214 of the Motor Vehicle Act, in addition to those persons prohibited under s. 86(1)(a)(ii).  Seen in this light, the better course would seem to me to be to answer the constitutional question as posed.

 

                   But even if this Court were willing to address the question in terms narrower than those posed, argued and treated by the court below, it could not, in my view, do so without departing from its own established jurisprudence.  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 to use another current term, applying the doctrine of constitutional exemption.  Section 88, for the purposes of this appeal, is read as though it did not contain provisions which may prove unconstitutional. To put it another way, the mandatory sentence section is allowed to stand, but judges are directed that when in the future unconstitutional applications of the section arise, the section should be declared unconstitutional with respect to those applications and not applied.

 

                   This Court was invited to apply a similar approach in R. v. Seaboyer, [1991] 2 S.C.R. 577.  There the majority of the Court of Appeal, having concluded that s. 276  of the Criminal Code  in some of its applications violated the Charter , declined to strike the section down on the ground that the appropriate remedy was for the trial judge to decline to apply the section in cases where a constitutional violation would occur.  Without deciding that techniques of reading down or constitutional exemption may never apply to save legislation, the majority of this Court concluded that those doctrines could not be appropriately applied in that case, because, inter alia, the effect would have been to  change the law under consideration significantly and substantially and would have amounted to delegating to future trial judges the task of determining when the legislation should not be applied.  On this reasoning, it was observed, no law need be found to offend the Charter .  The law is declared valid; it is only some of its applications which are invalid. 

 

                   The same considerations apply here.  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.  Moreover, while s. 88(1)(c) would be declared "valid", its constitutional status would remain uncertain, to be determined according to whether trial judges in future cases saw its application as violating the Charter .  This runs counter to the fundamental principle that the law -- particularly laws whose violation can result in imprisonment -- should be clear, certain and ascertainable. This Court has consistently advocated a strict and rigorous Charter  analysis of provisions which have as their sanction the withdrawal of a person's liberty.  To leave determination of criminal and quasi-criminal offences to case-by-case adjudication by judges would be to deprive people of knowing in advance what the law is. Only after they are tried will such persons be told whether or not they have broken a valid law. In my view, such an approach should not be adopted to offences which may result in imprisonment. The preferable approach is to confront squarely the question of the extent to which a law is inconsistent with the Charter  and hence invalid under s. 52  of the Constitution Act, 1982 , when it is raised on an appeal such as this.

 

                   In the case at bar, Gonthier J.'s restrictive analysis of the provision in issue means that judges, when confronted with cases arising under portions of s. 88(1)(a) not addressed here, will have to determine on a case-by-case basis whether those applications of s. 88(1)(c) infringe the Charter .  Ultimately, we will be left with an untidy and uncertain combination of judge-made and legislated law.  A motorist seeking to know the risks of driving while prohibited will not be able to determine his or her position simply by consulting the statute.  Upon consulting the statute, the motorist would reasonably conclude that s. 88 is valid, particularly if a judgment exists answering the constitutional question here posed in the negative.  But the motorist would be wrong.  As Gonthier J. notes, imprisonment for breach of some prohibitions might well offend the Charter , rendering the law to that extent invalid.  If the motorist concludes that mandatory imprisonment for breach of the prohibition in his case offends the Charter  and decides to drive, the motorist may subsequently be told by a judge that this view of the law was wrong and find himself or herself behind bars.

 

                   The constitutional question in this case for sound reasons asks this Court to rule generally on the constitutionality of the punitive regime set up by s. 88 for parties who breach a prohibition from driving, not to defer to future decisions the determination of the extent to which it is invalid.  In my view, that is a wise and fair course, given the interest of the public in knowing with some certainty the state of the law on matters which may result in imprisonment.

 

                   In the past, this Court when asked to determine whether legislation is invalid has analyzed the question on the basis of all the potential applications of the provision in question, and has not "saved" the legislation by considering only the particular application on the facts before the Court.  Indeed, Gonthier J.'s "dual aspect analysis", which requires consideration both of the situation of the particular accused as well as other hypothetical applications, implicitly acknowledges this.  Consider the approach adopted by Lamer J. (as he then was) in Smith, at p. 1078:

 

...the law is such that it is inevitable that, in some cases, a verdict of guilt will lead to the imposition of a term of imprisonment which will be grossly disproportionate.  [Emphasis added.]

 

Lamer J. did not suggest in Smith that every minimum seven-year sentence handed out for trafficking would offend the Charter .  Rather, because some of the sentences rendered under that provision would have been cruel and unusual, the entire section was held to be invalid.

 

                   The same approach should be adopted with respect to s. 88(1)(c) of the Motor Vehicle Act. Many of the mandatory sentences imposed under s. 88 may not be cruel and unusual. But if, to borrow the language of Lamer J. in Smith, it is "inevitable that, in some cases, a verdict of guilty will lead to the imposition of a term which will be grossly disproportionate" (p. 1078), the entire subsection must be struck down.

 

                   In some cases a legislative provision can be saved by reading out an offending condition, for example, the words "he [the accused] establishes that"  imposing a reverse onus: R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154.  Removal of the words in such a case does not violate the main thrust of the legislative provision, and it does not have the result of declaring a law valid, even though aspects of it may in fact be invalid, thereby leaving the constitutionality of the law to future case-by-case determination.   

 

                   In conclusion, I take the view that the issue before the Court is whether the mandatory minimum sentence under s. 88(1)(c) will "in some cases", to borrow the language of Smith, be grossly disproportionate and hence violate s. 12  of the Charter .  The section cannot be declared valid on a "severed" basis, subject to the proviso that some of its severed applications may in future cases be revealed as invalid. It follows that the Court must examine not only selected prohibitions and applicable procedures under s. 86(1)(a) but must consider the entire range of prohibitions encompassed by s. 86, as well as s. 84 (e.g. permitting prohibition from driving for failure to pay for a licensing examination); s. 85 (e.g. permitting prohibition from driving for failure to satisfy a final judgment in excess of $400 related to a motor vehicle accident); and s. 214.

                    

Violation of the Charter 

 

                   The Court of Appeal concluded that the minimum sentence of mandatory imprisonment plus a fine of $300 violated the s. 12  guarantee against cruel and unusual punishment because some sentences imposed under it would be grossly disproportionate.  The question is whether the Court was correct in so concluding.  Gonthier J. concludes the Court of Appeal erred.

 

                   Gonthier J. is able to come to this conclusion by restricting his analysis to the application of s. 88(1)(c) to the specific prohibition on the facts and by not considering the entire range of prohibitions for which the mandatory minimum sentence of imprisonment must be imposed.  Sharing, as I do, the Court of Appeal's view that the entire range of prohibitions covered by s. 88(1)(c) must be considered, I must determine whether the Court was right in concluding that some applications of s. 88(1)(c) would inevitably lead to disproportionate sentences which violate s. 12 .

 

                   In the first step of the analysis, the Court of Appeal considered the gravity of the offence in relation to the sentences requiring imprisonment and concluded (at p. 170):

 

                   A comparison of the relative severity of those many offences at law which do not carry a mandatory jail term as punishment for a first conviction with that of the offence here under consideration leads me to the conclusion that there is no reason, in principle, why the latter must carry a mandatory minimum punishment of seven days' imprisonment.

 

                   The Court of Appeal then turned to the circumstances of the offence and the personal circumstances of the offender.  Wood J.A. began by noting that the Court of Appeal was not asked to consider "whether the sentence imposed upon the respondent is appropriate in relation to the circumstances of his case"; the Court was "only to decide whether the statutory requirement that no less a sentence be imposed in all cases is one which violates the constitutional guarantee invoked" (p. 164).  On this premise, Wood J.A. addressed these issues globally, as relating to the particular circumstances of potential offenders affected by the provision.  He declined to enter into speculation as to a particular hypothetical, relying on Lamer J.'s comment in Smith (at p. 172):

 

...it is not the certainty of a particular case that Lamer J. was concerned with in Smith, it was the certainty that, given the multiplicity of situations that might occur, a grossly disproportionate sentence was in one or more of them a certainty.

 

He went on to conclude (at p. 172):

 

                   The fact is that there are an unlimited number of different circumstances under which the offence of driving while prohibited can be committed.  It is also apparent that the different circumstances personal to the offender will be as numerous and as varied as the number of offenders themselves.  Those facts, together with a modest amount of human experience, lead to the conclusion that inevitably there will be cases where a mandatory minimum sentence of seven days' imprisonment, plus a fine of $300, will be so grossly disproportionate to what would otherwise have been appropriate that to impose such a sentence will clearly offend against s. 12  of the Charter .

 

                   I do not share Gonthier J.'s opinion that Wood J.A.'s analysis is abstract, supported by facile assumptions based on "small" or "best offender" scenarios, and is thus, insufficient to uphold a finding that s. 88(1)(c) infringes s. 12  of the Charter .  Should Gonthier J. require further hypothetical instances which "reflect reality", they can easily be supplied.  Consider the example provided by Hogarth Co. Ct. J. at trial (and cited by Wood J.A.) of the situation of an "accused, prohibited from driving, [who] had moved a motor vehicle with a disabled driver a few feet at an accident scene on a freeway, to permit other cars backed up for miles to get by" ((1988), 44 C.C.C. (3d) 166, at p. 172).  I agree with Hogarth Co. Ct. J. in conclusion that "a seven-day jail sentence and a $300 fine which might mean loss of employment of long standing and other amenities would be ridiculous".

 

                   Consider also the case of persons driving while prohibited who plead extenuating circumstances which, while not providing a defence at law (i.e. the common law defence of necessity), should properly be considered in sentencing because they tend to reduce the accused's blameworthiness.  (In this respect, I note the limited availability of the defence of necessity on the test set out by this Court in Perka v. The Queen, [1984] 2 S.C.R. 232.)

 

                   To return to the central issue, however, I understand the Court of Appeal as simply saying that when the gravity of the offence is considered together with the potential range of situations in which offenders may find themselves, a mandatory minimum sentence may prevent the court charged with sentencing from reaching a fair result, and indeed require the judge in some cases to impose a sentence which is grossly disproportionate.  To put it another way, the mandatory minimum sentence required by s. 88(1)(c) deprives the judge of the range of discretion which is appropriate having regard to the gravity of the offence and the circumstances in which it arises.  In short, mandatory minimum sentences must be appropriate having regard to the gravity of the offence and the potential circumstances which may arise.  I see no error in that conclusion.  Nor do I see any error in referring to "a modest amount of human experience". The experience of a judge who has had occasion to pass sentences for different offences leaves him with great respect for the infinite variety of circumstances which may mandate a sentence short of imprisonment for all offences save those of the greatest gravity.

 

                   Gonthier J. suggests that the Court of Appeal was able to reach these conclusions only by "divorcing the offence of driving while prohibited from the various infractions which led up to the prohibition" (p. 000).  With respect, I think this may misconstrue Wood J.A.'s reasoning.  Wood J.A. referred to the need to consider the circumstances "related to the driving which is prohibited" rather than the circumstances leading to the prohibition, only after having stated his primary conclusion, and for the sole purpose of rebutting the argument that sentences imposed under s. 88(1)(c) could not be found disproportionate because those convicted of driving while prohibited would not be "small" offenders.  He concluded (at p. 173):

 

If a sentence of seven days is wholly disproportionate in any given case, based on the circumstances of the offence and the personal circumstances of the offender, its constitutionality cannot be salvaged on the grounds that it is in some way justified as a form of supplementary punishment for offences of which the offender has already been convicted, and for which he has already been punished.

 

Wood J.A.'s point, as I understand it, was simply that it is the offence of driving while prohibited, together with all circumstances relevant to that offence, which must be considered.  Therefore the mere fact that the accused has committed previous driving infractions does not save the mandatory sentence imposed by s. 88(1)(c).

 

                   I conclude that the Court of Appeal properly applied the tests laid down by this Court in Smith and correctly concluded that s. 88(1)(c) violated s. 12  of the Charter .  I share the view of Wood J.A. below that in some of the cases envisaged by the scheme established by ss. 88(1)(a) and (1)(c) of the Motor Vehicle Act, the mandatory minimum sentence of seven days' imprisonment plus a fine would 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 .  I also agree with the conclusion of Wood J.A. that s. 88(1)(c) cannot be saved under s. 1  of the Charter  because it is overbroad.  To quote Wood J.A. (at p. 176): "[the] material does not demonstrate any obvious or probable need for a deterrent which has such an indiscriminate reach."

 

                   Finally, I agree with the Court of Appeal that rather than alleviating the particular offences from the purview of s. 88(1)(c) on a case-by-case basis, as is required for conformity with the Charter , the mandatory minimum sentence in s. 88(1)(c) should be struck out.  As suggested earlier, the certainty required for offences which may lead to imprisonment requires no less.

 

Disposition

 

                   I would dismiss the appeal and remit the matter to the trial court.

 

                   Appeal allowed, Lamer C.J. and McLachlin and Stevenson JJ. dissenting.

 

                   Solicitor for the appellant:  The Ministry of the Attorney General, Victoria.

 

                   Solicitor for the respondent:  Kathryn Ford, New Westminster.

 

                   Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.

 

                   Solicitor for the intervener the Attorney General of Manitoba:  The Department of Justice, Winnipeg.

 

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