Decision Content
R. v. Kakfwi, 2017 NWTSC 43 S-1-CR-2017-000022
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
TONY HOWARD KAKFWI
__________________________________________________________
Transcript of the Oral Ruling delivered by The Honourable
Justice L. A. Charbonneau, sitting in Yellowknife, in the
Northwest Territories, on the 5th day of June, 2017.
__________________________________________________________
APPEARANCES:
Mr. J. Potter: Counsel for the Crown
Mr. C. Davison: Counsel for the Accused
(Charge under s. 244.2, 244.1, 264.1(1)(a) x2, 86(1), 88(1)
and 85(1)(a) of the Criminal Code of Canada)
Official Court Reporters
1 THE COURT: Mr. Kakfwi faces a number of
2 charges, including one pursuant to Section
3 244.2(1)(b) of the Criminal Code, for
4 intentionally discharging a firearm while being
5 reckless as to the life and safety of another
6 person. If convicted of that offence, he will be
7 subject to a mandatory minimum jail term,
8 pursuant to Section 244.2(3) of the Criminal
9 Code.
10 The mandatory minimum penalty depends on the
11 type of firearm used, as it is higher if the
12 offence involves the use of a restricted or
13 prohibited firearm or if the offence is committed
14 for the benefit of a criminal organization. My
15 understanding is that the allegations here are
16 that those situations are not engaged. The
17 applicable mandatory minimum penalty, if
18 Mr. Kakfwi is convicted of the offence, would be
19 four years' imprisonment pursuant to Section
20 244.3(2)(b).
21 Mr. Kakfwi has filed a Notice of Motion
22 challenging the constitutional validity of that
23 four-year mandatory minimum.
24 There may be a typographical error on the
25 Notice of Motion, Mr. Davison. I think you may
26 have referred to ".2". I just noticed this this
27 morning. I think we all know what the challenge
Official Court Reporters
1
1 is about, but I thought I would mention it.
2 MR. DAVISON: Thank you. I'll look into
3 that.
4 THE COURT: I am sure Mr. Green would not
5 build his case around that, but I thought I would
6 mention it.
7 Mr. Kakfwi takes the position that this
8 provision violates Section 12 of the Canadian
9 Charter of Rights and Freedoms. Mr. Kakfwi is
10 asking this Court to decide the constitutional
11 challenge before he is required to enter his plea
12 on the charge. The Crown objects to this and
13 argues the constitutional challenge should be
14 heard only after Mr. Kakfwi is convicted of the
15 charge that triggers this mandatory minimum
16 penalty.
17 The Crown and defence agree that the legal
18 framework that governs the issue as to when the
19 constitutional challenge should be heard was the
20 framework laid out by the Supreme Court of Canada
21 in R. v. DeSousa, [1992] 2 S.C.J. 1997. They do
22 not entirely agree about how that framework
23 operates.
24 Both sides agree that the Court has the
25 jurisdiction to hear a constitutional challenge
26 before trial and a discretion to do so. The
27 Crown argues there is a strong presumption
Official Court Reporters
2
1 against doing so and that the defence has not
2 rebutted that strong presumption in this case.
3 Defence takes issue with the Crown's
4 position that the legal framework includes a
5 strong presumption against hearing constitutional
6 issues before trial. On that point, I agree with
7 defence. The use of the term "presumption" may
8 not be entirely accurate in this context. But,
9 in the end, how the test is described does not
10 make much of a difference to the outcome.
11 On my reading of DeSousa, the key is that in
12 deciding on the timing of the hearing of this
13 type of motion, regard must be had to two policy
14 considerations. The first is that it is
15 desirable to avoid fragmentation of criminal
16 proceedings. The second is that there is a need
17 for a proper factual foundation in any
18 constitutional litigation.
19 Both of these policy considerations favour
20 disposition of the type of application brought by
21 Mr. Kakfwi after trial and not before, and, in
22 the ordinary course of things, that is what
23 happens. But the Court may depart from that
24 usual approach. In DeSousa, the Supreme Court
25 said that trial courts should not do so "unless
26 there is a strong reason for doing so" in cases
27 where the "interests of justice necessitate an
Official Court Reporters
3
1 immediate decision". DeSousa, at paragraph 17.
2 The Supreme Court went on to give examples
3 of when that might be the case: where the Court
4 itself is implicated in a constitutional
5 violation; where substantial ongoing
6 constitutional violations require immediate
7 action; or where it might save time to decide the
8 constitutional issue before trial. An example of
9 when it might save time to hear a constitutional
10 challenge ahead of time is when there is an
11 apparently meritorious challenge to the law under
12 which the accused is charged and the challenge
13 does not depend on the facts to be elicited
14 during the trial.
15 Unlike some of the cases referred to by
16 defence, such as R. v. Haldenby 1994 CarswellOnt
17 1096, for example, the provision that Mr. Kakfwi
18 seeks to challenge is not the one that creates
19 the offence that he is charged with. It is not
20 as though dealing with the constitutional issue
21 now would avoid the need for a lengthy and
22 complex trial which may fall apart because the
23 charging provision ends up being found
24 unconstitutional. There is no suggestion that
25 hearing the matter ahead of trial would save
26 resources or court time.
27 There is also no suggestion that at this
Official Court Reporters
4
1 point the Court itself is implicated in a
2 constitutional violation.
3 But Mr. Kakfwi says that one of the things
4 evoked in DeSousa, the fact that the challenge
5 does not depend on facts to be elicited at trial,
6 does apply to his situation.
7 Mr. Kakfwi's position must be considered
8 against the backdrop of the legal framework that
9 applies to a Section 12 challenge. That
10 framework is set out in R. v. Nur, [2015] 1 SCR
11 773 and R. v. Lloyd 2016 SCC 13. When a
12 mandatory minimum sentence is challenged on the
13 basis that it contravenes Section 12 of the
14 Charter, there are two avenues for arguments.
15 The first is that the mandatory minimum will
16 result in cruel and unusual punishment for the
17 accused who is before the Court. The second is
18 that for other persons in other situations, the
19 mandatory minimum punishment would result in
20 cruel and unusual punishment. One argument rests
21 on the situation of the accused who is actually
22 before the Court, the other rests on a
23 hypothetical situation that could reasonably
24 arise.
25 In a case where the first line of argument
26 is being pursued, the facts of the case will
27 necessarily matter. Arguably, in cases based
Official Court Reporters
5
1 solely on the "reasonable hypothetical" line of
2 argument, the facts of this specific case will
3 have little bearing on the issue.
4 In submissions, the Crown pointed out that
5 some facts would necessarily need to be
6 established for this constitutional challenge
7 even if it were to be based exclusive on the
8 "reasonable hypothetical" situation because the
9 mandatory minimum penalty that applies depends on
10 the type of firearm used. I do not think that
11 would present much of an obstacle if it were the
12 only issue because that one fact is very narrow
13 and specific, most likely non-contentious, and,
14 as defence counsel pointed out, could easily be
15 the subject of an admission for the purposes of
16 the constitutional challenge.
17 The greater problem, as I see it, is that it
18 is not certain that the challenge will, in this
19 case, rest solely on the "reasonable hypothetical"
20 branch of the test.
21 In describing the nature of the challenge
22 that he expects to put forward, Mr. Kakfwi's
23 counsel states at paragraphs 15 and 16 of his
24 written submissions:
25 In the particular circumstances of
Tony Kakfwi, it is anticipated
26 that the challenge will be based
completely upon the "reasonable
27 hypothetical" line of argument.
Given the principles at play in
Official Court Reporters
6
1 Section 12 litigation, a four year
sentence of imprisonment - while
2 longer than what the defence will
argue is appropriate in his case -
3 would likely not rise to the level
of being "cruel and unusual"
4 punishment in the case of
Mr. Kakfwi.
5
Thus, the outcome of this
6 challenge will not depend upon the
facts of the case at bar but
7 rather will, instead, depend upon
the court's consideration of
8 "reasonable hypothetical"
situations which will be described
9 and offered during argument. This
is accordingly not a situation in
10 which the Court would need an
evidentiary or factual foundation
11 of the sort usually contemplated
when the Supreme Court has urged
12 courts to avoid making rulings in
factual vacuums.
13
14 But, importantly, there is a footnote at the end
15 of that paragraph which reads:
16 All of this is not to say that no
evidence or facts would be placed
17 before the Court if the need
arises. While it is presently
18 intended to argue the challenge on
the basis of "reasonable
19 hypotheticals" as outlined above,
if there is a need for more of a
20 factual foundation to be provided
to the Court that can, in any
21 event, be undertaken as necessary
and appropriate in the
22 circumstances.
23 Counsel used equally careful language during
24 the oral submissions. That is understandable
25 because, as counsel acknowledged, new facts, new
26 evidence, about Mr. Kakfwi 's personal situation
27 could well come to counsel's attention between
Official Court Reporters
7
1 now and the time of sentencing if this case ever
2 reaches that stage. Those new facts could affect
3 whether an argument should be made about the
4 impact of the impugned provision in his own
5 personal circumstances.
6 The bottom line is that Mr. Kakfwi is not
7 ruling out, and probably cannot rule out, the
8 possibility that the constitutional challenge
9 could be decided on the basis of a different
10 factual matrix than what would ultimately be
11 established through a trial and/or sentencing
12 hearing process. If that were to happen, the
13 constitutional issue would have to be revisited.
14 In that event, not only the trial process would
15 be fragmented but the actual constitutional
16 challenge would be as well. That is not an
17 efficient use of resources.
18 I understand fully why Mr. Kakfwi cannot
19 commit to limiting his challenge to the
20 "reasonable hypothetical" branch of the test. It
21 would be problematic for counsel to make that
22 commitment for the reasons I have already
23 referred to. But it raises these potential
24 disadvantages and issues as far as the
25 possibility of hearing the constitutional
26 challenge ahead of plea.
27 Mr. Kakfwi also relies on another distinct
Official Court Reporters
8
1 argument. He argues that it is in the interests
2 of justice to allow the challenge to be heard
3 before plea so that he can know, before he
4 pleads, the penalty he will face. He argues that
5 he is entitled to know his jeopardy before he
6 pleads. In support of that position, he relies
7 on a number of things which he says apply by
8 analogy.
9 For example, he refers to notice
10 requirements that arise in other areas of our
11 criminal law. The first example is the
12 requirement for the Crown to give an accused
13 notice of its intention to seek a greater penalty
14 on a subsequent offence, as provided for in
15 Section 727 of the Criminal Code. The second
16 example he gives is the requirement for the Crown
17 to give notice to a young person of its intention
18 to apply to have that young person sentenced as
19 an adult if convicted. Mr. Kakfwi argues that
20 similarly, he is entitled to know the extent of
21 his jeopardy more specifically in relation to
22 this charge, before he pleads
23 I understand the argument, but I think it
24 overlooks the fundamental qualitative difference
25 between those examples and the situation here.
26 In my view, there is a fundamental difference
27 between the Crown being required to provide
Official Court Reporters
9
1 advance notice on how it will exercise its
2 discretion, and the Court being asked to decide
3 whether it will declare a law contrary to the
4 Charter. Those are two very different things.
5 The logical extension of Mr. Kakfwi's
6 position is that anyone who wishes to challenge a
7 sentencing provision, or any provision of the
8 Criminal Code for that matter, would be entitled
9 to a ruling on the issue before plea. That
10 would, in my view, represent a major departure
11 from the general principles outlined in DeSousa.
12 Mr. Kakfwi also gave the example of the
13 requirements of publicity for Parliamentary
14 proceedings in the enactment of laws and the
15 requirement for laws to be published in the
16 Canada Gazette. Again, I do not find those
17 examples particularly helpful to his argument
18 because they arise in a very different context
19 than the one we are dealing with here.
20 In addition to other policy reasons that
21 militate against entertaining this type of
22 application before trial, delay is another
23 concern. Every court across the country is
24 acutely aware of the Supreme Court of Canada in
25 R. v. Jordan, [2016] 1 SCR 631. That decision
26 has not made delay less of a consideration in the
27 general landscape of the administration of the
Official Court Reporters
10
1 criminal justice system in our country. On the
2 contrary, it has placed it at the forefront more
3 than ever before. That factor does not assist
4 Mr. Kakfwi's position.
5 Defence counsel is quite correct in pointing
6 out that this case has proceeded very
7 expeditiously up until now. The events giving
8 rise to the charge arose in November 2016. The
9 matter is now before this Court. We are a long
10 ways away from the presumptive ceiling of 30
11 months established in Jordan. At the same time,
12 it is very clear that proceeding now to schedule
13 the hearing of the constitutional challenge will
14 create additional pre-trial delays. We can never
15 predict what factors may have a further impact in
16 the future on the scheduling of this trial.
17 The resources of this Court are already very
18 stretched. We are a circuit court that only has
19 four resident judges. We have a heavy caseload,
20 not just in criminal matters but also in civil
21 and family matters. There continue to be a very
22 high rate of jury trial elections in this
23 territory. There currently are a number of
24 pending cases, including several homicides and
25 other cases, that are expected to require several
26 weeks of court time. Under these circumstances,
27 the Court must be careful in how it uses its time
Official Court Reporters
11
1 and resources, and it must be careful in
2 exercising its discretion in a matter that will
3 inevitably add several months of pre-trial delay
4 on a case that, on its face, involves serious
5 allegations.
6 So, in summary, I disagree with the
7 defence's position that the interests of justice
8 entitle Mr. Kakfwi to know before plea whether he
9 will be subject to the mandatory minimum jail
10 term in the event of a conviction. I am not
11 persuaded that, to use the words of DeSousa, that
12 this is a case where there is a strong reason to
13 depart from the usual practice, that the
14 constitutional challenge to the penalty section
15 should be entertained at the sentencing stage. I
16 am not persuaded that the interests of justice
17 necessitate an immediate decision, and, for those
18 reasons, I will not entertain the constitutional
19 challenge to Section 244.2(3) at this stage.
20 That issue should be decided if and when
21 Mr. Kakfwi is convicted of the offence that gives
22 rise to that mandatory minimum sentence.
23 .................................
24 Certified Pursuant to Rule 723
of the Rules of Court
25
26
Jane Romanowich, CSR(A)
27 Court Reporter
Official Court Reporters
12