Criminal Law

Is a Superior Court declaration binding to other judges?

By Peter Small, Contributor

Whether an Ontario Superior Court justice's declaration that a law is unconstitutional binds other judges is an ongoing debate with significant implications, says Toronto criminal lawyer Tyler Smith.

The Crown has submitted in recent sentencing arguments that a Superior Court declaration that a certain minimum jail term is unconstitutional does not stop courts of equal or lower levels from reconsidering the issue, Smith says.

Defence lawyers argue, however, that such a declaration under s. 52 of the Constitution Act binds other courts unless overturned by the Court of Appeal, he tells

“It’s really an access to justice and efficiency issue,” says Smith, a partner with Hicks Adams LLP.

“If we rely on a declaration of a Superior Court judge rather than waiting for the Court of Appeal to wade in, which might take two or three years … it would mean that defence counsel wouldn’t have to, in every single case, bring their own constitutional challenge,” he says.

Smith has recently argued in a case before an Ontario Court of Justice judge that she is bound by a Superior Court judge’s previous declaration that a particular prostitution-related minimum sentence statute is null and void.

Smith’s client was charged in a large sex sting operation, called Project Raphael, north of Toronto. York Regional Police arrested 104 men for allegedly procuring prostitution from children, according to CBC News.

The man is awaiting sentencing after the judge found him guilty of luring a person under age 16 and paying consideration for the sexual services of a person under age 18, Smith explains.

The luring charge once had a one-year minimum sentence, but last summer the Ontario Court of Appeal struck it down as unconstitutional, Smith says.

What is still under debate is the constitutionality of a six-month mandatory minimum sentence for the other charge: paying consideration for the sexual services of a person under 18.

Smith is arguing on behalf of his client that the mandatory minimum no longer exists because, in a 2016 Ontario Superior Court ruling, Justice Bruce Glass declared that under s. 52 it cannot stand and has no force or effect.

The Crown takes the position, however, that because Glass is just a Superior Court judge and is not on the Court of Appeal, his ruling is not binding on other judges in the province, Smith says.

Smith countered that the constitutionality of the statute should not be continually re-litigated. “Our position is simply this: that a declaration under s. 52 of the Constitution Act from a Superior Court judge, a judge of inherent jurisdiction, is binding on all courts of equal jurisdiction, in other words, all other Superior Courts and all other provincial courts,” he says.

If the Crown’s position succeeds, we may see contrary court decisions on the same law, Smith says. “Judge X says it’s constitutional. Judge Y says it isn’t. Who’s correct? Nobody knows. It has to go to the Court of Appeal and the law is in a state of uncertainty.”

Another provincial court judge, Joseph Kenkel, has already found that Glass’s decision binds other judges.

“In my view, a Section 52 declaration is not just another legal ruling,” Kenkel wrote in his Dec. 6, 2017 Ontario Court of Justice decision in another Project Raphael case.

“A Section 52 declaration renders the unconstitutional provision of no force and effect, not merely in the case at hand but applicable to all as ‘effectively removed from the statute books,’” Kenkel wrote.

If a judicial consensus emerges that the Glass ruling is binding on other judges it will have a significant impact, Smith says.

“I think it’s an important ruling for lawyers who are advancing positions in the Ontario Court of Justice," he says.

"Rather than having to bring a constitutional challenge every time and give notice to the feds and the province, and write lengthy factums — with all the effort and the cost to your client that that entails — you can simply say, ‘Here’s the case from the Superior Court that says this provision is unconstitutional,’” he says.

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