Supreme Court Strikes Down Mandatory Firearm Sentences

The Supreme Court of Canada has struck down the government’s mandatory minimum jail sentences of three years for illegal gun possession and five years for possession of firearms by repeat offenders as amounting to cruel and unusual punishment under the Canadian Charter of Rights and Freedom (“Charter”).

 

In R. v. Nur, 2015 SCC 15, two appeals were heard jointly.  The first involved an incident in Toronto’s Jane and Finch neighbourhood.  In January of 2009, a young man entered a community centre in the neighbourhood and told a staff member that he was afraid of someone who was waiting outside to get him.  The staff member saw a person waiting outside who looked threatening.  The neighbourhood had high levels of crime and gun violence was a problem.  The supervisor of the community centre put the centre on lockdown and called the police.  When the police arrived, they saw four men standing at the entrance to the community centre.  Hussein Nur was among them.  As an officer chased Nur he threw something away.  The police later found a loaded handgun under a parked car.  The gun was of a type that was prohibited under the Criminal Code.  Nur was not found to be involved with the threatening behaviour. 

 

Nur was charged with one count of possession of a loaded prohibited firearm under the Criminal Code.  Nur pleaded guilty to the charge but challenged the constitutionality of the three year mandatory minimum sentence.  

 

Nur came from a supportive, law-abiding family who came to Canada as refugees.  At the time of the offence he was 19 years old and attending high school and hoped to attend university.  One teacher described Nur as an “exceptional student and athlete…and an incredible youth with unlimited academic and great leadership skills”.  Nur had no prior criminal record.  However, he was sentenced to the three year mandatory sentence.  That sentence was upheld by the Ontario Court of Appeal.

 

In the second case, Sidney Charles and another man were living in a Toronto rooming house.  An incident at the rooming house was reported to the police.  When the Emergency Task Force arrived and searched the house, they found a loaded Ruger semi-automatic handgun and ammunition in Charles’s bedroom.  It was equipped with an over-capacity magazine which is a prohibited device under the Criminal Code.  The serial number on the gun had been removed.  Charles admitted to police that he did not have a license to possess a firearm and did not hold a current registration certificate for the firearm.  Charles was arrested and charged with various firearm-related offences. 

 

The Crown elected to proceed by way of indictment.   Charles pleaded guilty to possession of a loaded firearm.  He also pleaded guilty to possession of a firearm knowing that the serial number had been defaced and other related charges. 

 

In contrast to Nur, Charles had a lengthy and serious criminal record.  At the time of the sentencing, it included 20 prior convictions, five of which involved crimes of violence and five other convictions for firearm-related offences.   Two of Charles’s prior convictions were relevant to the application of the mandatory minimum sentence. 

 

At sentencing for the present offence, Charles contested the Crown’s invocation of the five-year mandatory minimum penalty.  The sentencing judge dismissed Charles’ challenge under section 12 of the Charter.  The Court of Appeal held that the five year mandatory minimum sentence for a second offence was grossly disproportionate when measured against a reasonable hypothetical but subsequently affirmed the sentence imposed by the sentencing judge. 

 

Both Nur and Charles appealed to the Supreme Court of Canada. 

 

The Supreme Court of Canada in a 6-3 decision overturned the decisions of the Ontario Court of Appeal.  The Chief Justice wrote the decision for the majority. 

 

The court reviewed the following three issues on the appeal: 

 

1. Do mandatory minimum sentences infringe section 12 of the Charter (cruel and unusual punishment)?
2. Do mandatory minimum sentences infringe section 7 of the Charter (right to life, liberty and security of the person)?; and
3. If so, are they saved under section 1 of the Charter (reasonable limit prescribed by law that can be justified in a free and democratic society)?

 

Chief Justice McLachlin concluded that in most cases, including those of Nur and Charles, the mandatory minimum sentences of three and five years respectively do not constitute cruel and unusual punishment.  But in some reasonably foreseeable cases, they may do.  The Crown did not show that those cases were justified under section 1 of the Charter.  Accordingly, she found that the mandatory minimum sentences violated section 12 of the Charter.

 

The Court held that when a mandatory minimum sentence is challenged under section 12, two questions arise.  The first is whether the provision imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular individual.  If the answer is no, the second question is whether the provision's reasonably foreseeable applications would impose cruel and unusual punishment on other offenders.  

 

When applied to others, the question is what situations may reasonably arise, not whether such situations are likely to arise in the general day-to-day application of the law.  Only situations that are remote or far-fetched are excluded.

 

In this case, Nur and Charles did not argue that the mandatory minimums were grossly disproportionate as applied to them.  They argued that those sentences were grossly disproportionate as they apply to other offenders. 

 

The court found examples of responsible gun owners who simply made mistakes who would be sentenced to these mandatory minimums not withstanding that their offences involved little or no moral fault and little or no danger to the public.  The court found that a three year term of imprisonment for someone who has essentially committed a licensing infraction, such as mistakenly storing a firearm in the wrong place, is totally out of sync with the norms of criminal sentencing and legitimate expectations in a free and democratic society.  Consequently, the three year mandatory sentence provision of the Criminal Code breached section 12 of the Charter. 

 

With respect to the five year minimum sentence for repeat offenders, the Court found that term would be grossly disproportionate for less serious offenders.  For them, the five year term goes far beyond what is necessary in order to protect the public, to express moral condemnation of the offenders and to discourage others from engaging in such conduct.

 

The Court concluded that the section 12 Charter violations were not justified under section 1.   The Court also found that the government had not met the minimal impairment requirement under section 1 because there were less harmful means of achieving its legislative goal. 

Regards,

Blair