Ontario Criminal

Criminal Law

Charter of Rights and Freedoms

Notice of constitutional question

Crown bound by declaration that Criminal Code s. 151 unconstitutional

Accused was charged with sexual interference. Defence initially indicated that it would be challenging constitutionality of mandatory minimum sentence imposed for convictions on this charge but then relied upon case that held that minimum sentence under s. 151 of Criminal Code was unconstitutional and of no force and effect. Crown sought order of Mandamus requiring defence to file and serve Notice of Constitutional Question on Attorney Generals of Canada and Ontario, to allow it to defend constitutionality of mandatory minimum jail sentence of one year for offence of sexual interference under s. 151 of Criminal Code. Application dismissed. Court agreed with Crown’s enunciation of principles of stare decisis, namely that judge is not bound by decision of another judge of same court on same issue. Decision by judge of court of concurrent jurisdiction is of persuasive value only but such judgment should be followed unless subsequent judge is satisfied that it was plainly wrong. Crown was bound by declaration made by Superior Court judge, with inherent jurisdiction, that section of Criminal Code was unconstitutional, was of no force and effect, and was effectively removed from statute books, where notice of constitutional question was properly served on Attorney Generals of Canada and of Ontario. Declaration under s. 52 of Constitution Act that section of law is unconstitutional is not limited to proceeding before court. Court agreed with submission by defence that once declaration is made by judge with inherent jurisdiction that law contravenes Constitution offending section ceases to exist and is of no force and effect. Crown’s only remedy was to appeal first Superior Court judge’s declaration that section of Criminal Code was unconstitutional.

R. v. S. (J.D.) (2017), 2017 CarswellOnt 4800, 2017 ONSC 1869, R. Smith J. (Ont. S.C.J.).

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