R. v. Chen

R. v. Chen

The court found ss.742.1(c) and (e)(ii) of the Criminal Code are overbroad and therefore violate s.7; the Crown failed to justify that violation under s.1 because the provisions do not minimally impair the right (they capture offenders outside the objective), and on balancing the overbreadth outweighed any salutary effects; accordingly the provisions are declared of no force and effect; the court proceeded to impose sentence and ancillary orders on the accused.

Citation
2021 BCSC 882
Parties
Crown: Regina; Attorney General: Attorney General of British Columbia; Accused: Stephen Hai Chen
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
13 April 2021
Procedural Posture
Criminal (sentencing and Charter Application) / Oral Ruling on Applicability of S.1 of the Charter and Imposition of Sentence
Outcome
Sections 742.1(c) and 742.1(e)(ii) of the Criminal Code declared of no force and effect; sentence and ancillary orders imposed on the accused
Legal Topics
Charter S.7 Overbreadth, Charter S.1 Oakes Justification, Criminal Code S.742.1(c) and (e)(ii), Sentencing, Forfeiture, DNA Sampling Orders, Victim Fine Surcharge
Source Language
English
Criminal Law Constitutional Law Administrative Law Charter S.7 Overbreadth Charter S.1 Oakes Justification Criminal Code S.742.1(c) and (e)(ii) Sentencing Forfeiture +2 more

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Parties

Regina

Crown

Attorney General of British Columbia

Attorney General

Stephen Hai Chen

Accused

Procedural Posture

Criminal (sentencing and Charter Application) / Oral Ruling on Applicability of S.1 of the Charter and Imposition of Sentence

Legal Issues

  1. 1 Whether ss.742.1(c) and (e)(ii) of the Criminal Code violate s.7 by overbreadth
  2. 2 Whether any s.7 violation can be justified under s.1 of the Charter
  3. 3 What sentence and ancillary orders should be imposed on the accused

Ratio Decidendi

The court found ss.742.1(c) and (e)(ii) of the Criminal Code are overbroad and therefore violate s.7; the Crown failed to justify that violation under s.1 because the provisions do not minimally impair the right (they capture offenders outside the objective), and on balancing the overbreadth outweighed any salutary effects; accordingly the provisions are declared of no force and effect; the court proceeded to impose sentence and ancillary orders on the accused.

Court Disposition

Sections 742.1(c) and 742.1(e)(ii) of the Criminal Code declared of no force and effect; sentence and ancillary orders imposed on the accused

Orders

  • Declare ss.742.1(c) and 742.1(e)(ii) of the Criminal Code of no force and effect
  • Impose imprisonment for three years and eight months (44 months)