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Canada: Supreme Court Strikes Down Mandatory Minimum Sentences for Gun Crimes

(Apr. 22, 2015) On April 14, 2015, the Supreme Court of Canada, in a majority decision, struck down as unconstitutional those sections of the Criminal Code (RSC 1985, c C-46) that establish minimum mandatory sentences of three years for a first offense and five years for a second or subsequent offense for certain gun crimes. (Id. 95(1)) The Court was reviewing the punishments for section 95(1), which prohibits possession without a license and registration certificate of a loaded prohibited or restricted firearm or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition. (Id. 95(2) (a)(i)-(a)(ii).) The holding upheld the decision of the Ontario Court of Appeal, which had declared the provisions unconstitutional. (R. v. Nur, 2015 S.C.C. 15, ¶ 65.)

The Court found that the provisions violate section 12 of the Canadian Charter of Rights and Freedoms, which protects the “right not to be subjected to any cruel and unusual treatment or punishment.” (Part I of the Constitution Act, 1982, Being Schedule B to the Canada Act, 1982, c. 11(U.K.), § 12.) The Court held that although the provisions did not impose a grossly disproportionate sentence on the offenders in the case, the application of the sentences could impose cruel and unusual punishment “on other persons in reasonably foreseeable situations.” (R. v. Nur, 2015 S.C.C. 15, ¶ 65.)

The Court noted that foreseeable licensing offenses “which involve little or no moral fault and little or no danger to the public” could have resulted in a three-year sentence under the Code as it existed. (Id. ¶ 83.) The Court observed:

At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code. (Id. ¶ 82.)

The Court also found that although a five-year minimum sentence for a subsequent offense was appropriate for one of the offenders in the case, there are situations where for less serious offenders it would be grossly disproportionate. The Court noted that this sentence “could be imposed on an individual who breached a prohibition order imposed while on bail and who, some years later, innocently came into possession of a restricted or prohibited firearm without an authorization or a licence together with usable ammunition that he stored nearby and which was readily accessible.” (Id. ¶103.) The Court found that a five-year sentence “for offenders such as these would be draconian.” (Id. ¶ 104.)

The Court concludes its analysis by assessing whether the infringement can be justified under section 1 of the Charter, which stipulates that rights and freedoms are only subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Constitution Act, Schedule B, § 1.) The Court applied the “Oakes Test” to show that although the law was rationally connected to the legislative goals of denunciation and retribution (id. ¶115; R. v. Oakes, 1986 S.C.C. 103), there were less harmful or drastic means of fulfilling Parliament’s aim, such as drafting an offense which takes into account the degree of blameworthiness of the person’s conduct. (R. v. Nur, 2015 S.C.C. 15, ¶ 117.) Moreover, since the punishments can be grossly disproportionate, the Court found the limits are not a proportionate justification under section 1. (Id. ¶ 118.)