Law Times

Page 4 April 20, 2015 • lAw Times www.lawtimesnews.com Constitutional litigation Supreme Court quashes mandatory minimums for gun crimes BY SHANNON KARI Law Times he Supreme Court of Canada has ruled that the mandatory mini- mum sentences in place for illegal possession of a firearm are un- constitutional. The 6-3 decision released last week in R. v. Nur and R. v. Charles upheld earlier rul- ings of the Ontario Court of Appeal and struck down another aspect of the federal government's crime legislation. The majority decision, written by Chief Justice Beverley McLachlin, found that the three-year minimum penalty for a first of- fence and five years for a subsequent offence violate the provisions around cruel and un- usual punishment in the Charter of Rights and Freedoms. "Mandatory minimum sentences, by their very nature, have the potential to de- part from the principle of proportionality in sentencing. They emphasize denuncia- tion, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tai- lor proportionate sentences at the lower end of a sentencing range." The court concluded the offences for firearm possession are too broad and cap- tured conduct that was closer to a licensing infraction, such as a spouse who finds her- self in possession of her husband's gun and breaches the regulations. "The bottom line is that s. 95(1) foreseeably catches licensing offences which involve little or no moral fault and little or no danger to the public. For these offences three years' imprisonment is grossly dispro- portionate to a fit and fair sentence," wrote McLachlin for the majority. In finding that the Criminal Code sec- tions are unconstitutional, the chief justice stressed that trial judges could still impose "exemplary sentences that emphasize deter- rence and denunciation in appropriate cir- cumstances." In fact, the court upheld the original sentences of 40 months for Hus- sein Jama Nur and seven years for Sidney Charles, both of which were greater than the mandatory minimums. Michael Feder, who represented the Piv- ot Legal Society as an intervener in the case, welcomed the decision. "This is not a free pass for hard-core offenders. The impact [of the mandatory minimums] was most acutely felt by people who were at the low end of the range," says Feder, a partner at McCarthy Tétrault LLP in Vancouver. The decision gives trial courts leeway to craft an appropriate sentence for the less se- rious offenders, says Feder. Joanna Birenbaum, who represented the Canadian Association for Community Living as an intervener in the case, says the gun provisions have the same f laws as other mandatory minimum sentences that are still in place. "Most of the mandatory mini- mums do not consider the unique circum- stances and needs of an offender with a dis- ability, such as a developmental disability or mental illness," says Birenbaum. The findings of the Supreme Court and its use of a reasonable hypothetical analysis mean other mandatory minimum provi- sions, especially newer ones, may be vul- nerable to a Charter challenge, says Michael Dineen, who represented Charles. The facts in Nur and Charles "were not good test cases," but the reasonable hy- pothetical analysis means "you can chal- lenge a law as soon as it is implemented," says Dineen, a partner at Dawe Dineen in Toronto. Far from being controversial, reasonable hypotheticals "are a long-established part of constitutional analysis," says Dineen, who suggests the provinces that intervened were seeking to implement an "American-style" approach where the court could only con- sider the particular circumstances of the of- fender in deciding if a law is constitutional. In the majority decision, McLachlin re- ferred to what she described as "exaggerated debate" about the legal concept. "At bottom, the court is simply asking: What is the reach of the law," and what is its "reasonably fors- eeable impact," she wrote. The dissenting ruling, written by Justice Michael Moldaver with justices Marshall Rothstein and Richard Wagner concur- ring, found that the mandatory minimum provisions didn't violate the Charter. The fact that the illegal firearm pos- session provisions are hybrid offences is a "safety valve" to ensure that the least serious offenders won't face three years in prison, wrote Moldaver. "The least blameworthy conduct, licensing-type cases, is meant to be pros- ecuted summarily, thereby avoiding the application of the mandatory minimum," according to Moldaver. He added that if a Crown decision to proceed improperly had led to a "grossly disproportionate" sentence, there are rem- edies under s. 24(1) of the Charter. The majority, however, f latly rejected that view. "The protection it offers against grossly disproportionate punishment is il- lusory: in practice it would create a situation where the exercise of the prosecutor's discre- tion is effectively immune from meaning- ful review. The abuse of discretion standard is a notoriously high bar and has no place in this Court's jurisprudence under section 12 of the Charter," wrote McLachlin. "This leads to a related concern that vest- ing that much power in the hands of pros- ecutors endangers the fairness of the crimi- nal process. It gives prosecutors a trump card in plea negotiations, which leads to an unfair power imbalance with the accused and creates an almost irresistible incentive for the accused to plead guilty to a lesser sentence," she added. McLachlin also cited a legal paper on mandatory minimums written by Ontario Superior Court Justice Renee Pomerance. "The determination of a fit and appropriate sentence, having regard to all of the circum- stances of the offence and offender, may be determined in plea discussions outside of the courtroom by a party to the litigation," wrote Pomerance about the practical im- pact of mandatory minimum provisions. Charter rights can't be subject to a framework that relies almost entirely on the Crown "doing the right thing," says Feder. "It is cold comfort to say, 'Let's just trust the state.'" LT NEWS Falconer_LT_Mar30_15.indd 1 2015-03-24 3:19 PM T

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