Please create written submissions for your Charter application. In your submissions deal ONLY with the Charterissue for your role (not the other Charter issues in the case). Even though the case given to you is written as a trial, you do not have to treat this as an appeal. Argue this as if you are making the argument at trial level. Your written submissions will be organized as follows:

Intro - Introduce the Charter issue as it relates to the case in general terms.

Facts- Outline the facts of the case. You will want to emphasize facts that help you to make the point you want to make but you should include ALL relevant facts. You may not add facts that are not in the case.

Issue(s) - Set out as a question the legal Charter issue that you are dealing with.

Legal Analysis - This is where you make your legal argument. Note that you are expected to reference AT LEAST three cases to back up your points. AT LEAST two of those cases must come from the Supreme Court of Canada. All statutes and cases should be cited properly.

Order Sought - Ask the court for the order you want them to make (i.e. "exclude the evidence", "a finding that there is no Charter violation" etc.) Do not go beyond your Charter issue.

BETWEEN:

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN - and - DANIEL PELTIER

REASONS FOR DECISION

Toews, J.

Introduction

1. On September 30, 2012, the Applicant, Mr. Daniel Peltier, pled guilty to a single count of trafficking of a controlled substance contrary to s. 5(3)(a)(ii) of theControlled Drugs and Substances Act(CDSA), on the basis of an agreed statement of facts.

2. The Applicant and the Crown agree that as a result of the plea, Mr. Peltier is now subject to a newly-enacted mandatory minimum sentence of two years, as he committed the offence near school grounds and involved a person under the age of 18 years in committing the offence.

3. Mr. Peltier brings this application to strike down s. 5(3)(a)(ii) of theCDSA, pursuant to s. 52(1) of theConstitution Act, 1982. Specifically, the Applicant alleges that this provision constitutes cruel and unusual punishment, and violates his equality rights under sections 12 and 15, respectively, of theCanadian Charter of Rights in Freedoms(Charter). In addition, the Applicant alleges that this provision of theCDSA, particularly the imposition of mandatory minimum sentences, is an unconstitutional violation of the Makwa First Nation's inherent right of self-government.

Fall 2011 Charter Challenge Scenario

(Respondent)

(Applicant)

A civil society through education and dialogue.

2

4. For the reasons that follow, I do not find that the mandatory minimum sentence in s. 5(3)(a)(ii) of theCDSAviolates Mr. Peltier'sCharterrights. In any event, even if the mandatory minimum sentence did violate Mr. Peltier'sCharterrights, I would find that the infringement is a reasonable limit, justified under section 1 of theCharter.

5. Lastly, I do not find s. 5(3)(a)(ii) of theCDSAto be unconstitutional, as the right claimed by Mr. Peltier does not fall within the scope of the aboriginal rights recognized and affirmed by s. 35(1) of theConstitution Act, 1982.

The Facts

6. The Applicant is an 18 year old Aboriginal male member of the Makwa First Nation. He resides, with his family, on the North Lake Reserve - a small and isolated community in Northern Ontario.a

7. On June 17, 2012,bthe North Lake High School held its graduation ceremony. Later that evening, a number of students, many of whom were under 18 years of age, had a party in the park adjacent to the school. There was alcohol and drug use at the party.

8. The Applicant admits that he traded Oxycodone, a substance found in Schedule I of theCDSA, to a number of students in exchange for alcohol. Approximately half of these students ranged in age from 15 to 17 years old; the other half were 18 years of age or older. He also admits to selling two of the pills for cash to two individuals at the party who did not have any alcohol to trade; neither of these individuals were under 18 years of age.

aThe Makwa First Nation and North Lake Reserve in this scenario are fictional. Any resemblance to a specific Aboriginal community in Northern Ontario is unintentional. Please do not rely on sources which describe the Makwa Sahgaiehcan (a Cree First Nation in Saskatchewan) or any "North Lake Reserve" which you find through a google search - they are not applicable for the purpose of this activity.

bThe date of the offence is set in the future. Please assume that the federal government'sSafe Streets and Communities Act, introduced in September of this year, has been passed and come into force.

Fall 2011 Charter Challenge Scenario

A civil society through education and dialogue.

3

9. The Applicant admits that he took the Oxycodone from his mother, who is recovering from a serious automobile accident which took place three months ago. The Oxycodone was prescribed to her by a doctor for the chronic pain which from which she suffers.

10. One of the students at the party had an adverse medical reaction to the combination of alcohol and Oxycodone and was rushed to the hospital that night. Fortunately, this young man recovered, but as a result of the incident, the party and the Applicant's activities came to the attention of the local police.

11. It is worth emphasizing that Mr. Peltier acknowledged his wrongdoing and pled guilty at an early juncture, forgoing his right to a trial.

12. The Applicant maintains - and I have no reason to disbelieve him - that he does not have a drug or alcohol problem, although he admits to drinking alcohol socially since the age of fourteen. His motivation in selling the Oxycodone was purely financial.

13. Mr. Peltier lives in North Lake with his mother and two younger brothers. His father died when he was 3 years old. Until two years ago, Mr. Peltier was his mother's second oldest son; her oldest son - and Mr. Peltier's older brother by two years - committed suicide at the age of 18. Tragically, suicide, especially among teens, is not uncommon for this under-served community which suffers from chronic unemployment and a general lack of resources. Many of the middle-aged adults who live on this reserve attended residential schools, and the intergenerational impact stemming from this has been noted by several of my colleagues on the bench in previous sentencing decisions involving offenders from this community.

14. At the time of this sentencing hearing, the Applicant was not enrolled in school and had no prospects for employment. He does not have a criminal record.

Fall 2011 Charter Challenge Scenario

A civil society through education and dialogue.

4

Relevant Legislation

15. The legislation at issue in this application is s. 5(3)(a)(ii) of theCDSA. As this law only recently came into effect, I have reproduced the text of the legislation here:

Trafficking in substance

5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

Possession for purpose of trafficking

(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and

[...]

(ii) to a minimum punishment of imprisonment for a term of two years if

(A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,

(B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or

(C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;

Fall 2011 Charter Challenge Scenario

A civil society through education and dialogue.

5

Legal Issues

16. The parties agree that there are four legal issues that I need to decide:

i. Does s. 5(3)(a)(ii) of theCDSAviolate the Applicant's s. 12Charterright to be free from cruel and unusual treatment or punishment?

ii. Does s. 5(3)(a)(ii) of theCDSAviolate the Applicant's s. 15Charterright to equality? iii. If the impugned provision does violate one or more of the Applicant'sCharterrights,

is the infringement justified by section 1 of theCharter? iv. Is s. 5(3)(a)(ii) of theCDSAinvalid on the basis that it violates s. 35(1) of the

Constitution Act, 1982, by infringing an aboriginal right to self-government?Issue One: Section 12 - Cruel and Unusual Treatment or Punishment

17. Section 12 of theCharterprovides: 12. Everyone has the right not to be subjected to any cruel and unusual treatment

or punishment.

18. Challenging the constitutionality of mandatory minimum sentences on the basis of section 12 of theCharteris not novel. Canadian courts, at various levels, have clearly indicated that mandatory minimum sentencesper sedo not violate theCharter; however, some minimum penalties may be found unconstitutional if the sentence is grossly disproportionate:R. v. Smith, [1987] 1 S.C.R. 1045.

19. To be considered grossly disproportionate, the sentence must be more than "merely excessive". The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable":R. v. Wiles, [2005] 3 S.C.R. 895, at para. 4.

20. The question in this case is whether a two year mandatory minimum sentence of imprisonment is grossly disproportionate to the offence of trafficking as committed by Daniel Peltier?

Fall 2011 Charter Challenge Scenario

A civil society through education and dialogue.

6

21. In making this determination, one must have regard to all contextual factors. The Supreme Court inR. v. Wileshas indicated that relevant factors may include:

...the gravity of the offence, the personal characteristics of the offender, the particular circumstances of the case, the actual effect of the treatment or punishment on the individual, relevant penological goals and sentencing principles, the existence of valid alternatives to the treatment or punishment imposed, and a comparison of punishments imposed for other crimes in the same jurisdiction.

22. The Applicant has urged me to consider that he is a first-time offender who just recently turned 18. He has also submitted that the provision was intended to capture drug dealers who target young people - not barely-adult offenders who "trade pills for beers with their peers". The crux of the Applicant's submissions on this argument focused on the incompatibility of this mandatory minimum sentence with the sentencing principle outlined in s. 718.(e) of theCriminal Code:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

[...]

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

23. This sentencing principle, first interpreted by the Supreme Court inR. v. Gladue, [1999] 1 SCR 688, requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders. InGladue, the Supreme Court held that the provision was remedial in nature, designed to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.

24. The Applicant submits that the mandatory minimum sentence, in his case, is grossly disproportionate, given the range of sentencing options available to an offender from his community. Sentencing circles and other forms of restorative justice are typically employed, to

Fall 2011 Charter Challenge Scenario

A civil society through education and dialogue.

7

great success in his community of North Lake. The Applicant has also drawn my attention to the fact that the mandatory minimum punishment of two years imprisonment prevents his eligibility for a conditional sentencing order; the Applicant is unable to serve his sentence in the community and must be incarcerated.

25. The Respondent, on the other hand, submits that selling drugs to high school students is a serious offence and is exactly the kind of activity intended to be punished by s. 5(3)(a)(ii). I agree that the circumstances of this case demonstrate the extreme danger that can result from this activity; a young man was rushed to hospital and perhaps could have even died.

26. The Respondent also submits that Mr. Peltier is, as a matter of law, "old enough" and that he must take full responsibility for his decisions, despite the fact that he had only just turned 18 when the offence occurred.

27. The Respondent also urged me to consider the sentencing objectives of denouncing unlawful conduct and deterring others from committing this offence.

28. In my opinion, the mitigating factors put forth by the Applicant do not convince me that the mandatory minimum sentence is grossly disproportionate in his case. I find that the two-year minimum sentence prescribed by Parliament does not amount to cruel and unusual punishment on the facts of this case.

29. Ordinarily, a s. 12 analysis for a mandatory minimum sentence requires both an analysis of the facts of the accused's case and an analysis of reasonable hypothetical cases. Mr. Peltier has chosen not to rely on reasonable hypotheticals to contest the constitutionality of the impugned provision. There is no reason to continue with an analysis of a reasonable hypothetical.