2019 ONCA 646 Heard July 3, 2019 Decided August 7, 2019
What are the Facts?
Mr. Kevin Plange pled guilty to (and was convicted of) one charge of fraud over 5,000 dollars for defrauding the Canada Revenue Agency of a little over 41 million dollars. The total fraud value was over 1 million dollars, so the Crown argued a 2-year minimum mandatory jail sentence applied. Mr. Plange argued that this mandatory minimum was unconstitutional because it was cruel and unusual punishment. He did this by arguing reasonably hypothetical situations similar to his in which this sentence would be wrong. The judge agreed and sentenced Mr. Plange to 13 months and 18 days in prison followed by two years of probation. The judge also gave Mr. Plange 18 months of time-credit that would be applied toward his sentence; this was based on time he spent either in jail waiting to be sentenced, or out on bail but with really strict conditions. The result was that Plange had already served his sentence technically speaking and was therefore free.
The Crown complained, arguing the mandatory minimum sentence of two years was not cruel and unusual, and that the 13-month and 18-day sentence was not enough time. By the end of the argument, the judge decided that his sentence was not unconstitutional, but that the sentence was not long enough. However, he also said that it would not be in the interests of justice to put this person back into prison and kept the same sentence – 13 months and 18 days. Mr. Plange walked free with his time credit covering the balance.
The Crown appealed to the Court of Appeal and said this sentencing judge made a mistake. So, did he?
What is the Issue?
Did the judge make a mistake in sentencing Mr. Plange?
What did the Court say about this?
Yes, they did.
What were the Court’s reasons?
There is a test that a Court will apply to determine whether a sentence is unconstitutional. That test involves showing the Court why the enforcement of a particular law (in this case, sentencing laws) would be excessive or grossly disproportionate. If a challenging party decides to argue reasonable hypotheticals in doing so, the judge must allow the hypotheticals to be fully debated. This judge did not do that; that is, they did not let the issue be totally discussed before deciding. Accordingly, the judge was wrong to say the mandatory minimum was unconstitutional based on the hypotheticals because the hypotheticals were not properly debated and so the decision was thinly made.
Furthermore, the Court of Appeal found the new sentence the judge gave Mr. Plange, as unfit for not being long enough. The judge did not properly characterize the nature of Mr. Plange’s crime, and so he did not properly characterize an appropriate sentence for Mr. Plange. In plain terms, the judge called Mr. Plange’s crime a minor one and gave him a slap on the wrist when his crime was actually much worse than that.
The Appeal Court decided to give Mr. Plange a new sentence of 3 years in prison. But because this case was decided after Mr. Plange had already gotten out of prison from the 13-month and 18-day sentence given by the first judge, the Court of Appeal decided that it was in the interest of justice to stay (suspend) the remainder of the new sentence. It would be unfair to put a man who thought he had done his time back behind bars just because the first judge made a mistake, and so they let him remain free.