Wednesday, April 15, 2015

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

Tuesday, April 7, 2015

Ontario Court Rules On "Participant Expert" Witnesses


Following up on its historic decision in Moore v. Getahun, the Ontario Court of Appeal has released a second decision relating to expert witnesses.  In the case (indexed as Westerof v. Gee Estate, 2015 ONCA 206 CanLII), the court distinguished between expert witnesses who were retained "by or on behalf of a party" and what the court referred to as “participant experts”, i.e. witnesses with special skill, knowledge, training or experience who were involved in the underlying facts of the case or "non-party experts", i.e. witnesses who had formed a relevant opinion based on personal observations for a purpose other than the litigation.  The Court of Appeal held that such experts do not have to comply with the requirements of rule 53.03 of the Ontario Rules of Civil Procedure, i.e. prepare an expert report and sign an acknowledgement of his or her duty as an expert.   

 

In this case, the plaintiff Westerof was injured in a car accident in 2004 when the car in which he was a passenger was struck from behind by another vehicle travelling at twice the posted speed limit.  Mr. Westerof suffered injuries and was examined by his family doctor and a number of other doctors who he called to testify at the trial. 

 

At trial, the trial judge ruled inadmissible the opinion evidence concerning history, diagnosis and prognosis from the doctors who were either participant experts or non-party experts.  The trial judge ruled that these witnesses were required to comply with rule 53.03 and had not done so.  He dismissed the action.

 

Mr. Westerof appealed to the Divisional Court.  The Divisional Court disagreed with the trial judge but held that the important distinction as to admissibility of the evidence was “not in the role or involvement of the witness but in the type of evidence sought to be admitted”.   The Divisional Court held that if the evidence in issue is opinion evidence, then the witness must comply with rule 53.03.   If the evidence is factual evidence then the witness need not comply. 

 

The Ontario Court of Appeal unanimously overturned the ruling of the Divisional Court.  Justice Simmons writing for the court held that the type of evidence, whether fact or opinion, is not the key factor in determining to whom rule 53.03 applies.  In her opinion, participant experts and non-party experts may give opinion evidence without complying with rule 53.03.  Accordingly she ordered a new trial in the case.

 

In reaching her conclusion for the court, Justice Simmons held that a witness with special skill, knowledge, training or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

  1.  the opinion to be given is based on the witness’ observation of or participation in the events at issue; and
  2. the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such evidence.
 
The court held that participant experts are those witnesses whose evidence relates to their observations of the underlying facts.  Non-party experts are those experts who have formed a relevant opinion based on personal observations or examinations relating to the subject of the litigation for a purpose other than the litigation. 

If a participant expert or non-party expert gives opinion evidence extending beyond those limits they must comply with rule 53.03 with respect to the portion of their opinions which extend beyond those limits.
 
In reaching its conclusions, the Ontario Court of Appeal made the following observations:
 

  1. the jurisprudence prior to 2010, i.e. prior to the Osborne Report on reform of the civil justice system, is relevant and the Divisional Court’s failure to refer to the pre-2010 jurisprudence was a significant oversight.  There is no basis for concluding that the pre-2010 jurisprudence did not continue to apply following the 2010 amendments to the rules relating to expert witnesses;
     
  2. the text of the 2010 amendments supports the view the rule 53.03 does not apply to participant experts or non-party experts.  The expert must be engaged "by or on behalf of" a party before the rule applies;
     
  3. requiring participant experts and non-party experts to comply with rule 53.03 can only add to the cost of litigation, create the possibility of delay because of potential difficulties in obtaining compliant reports and add unnecessarily to the workload of persons not expecting to have to write such reports.
Regards,

Blair