Law Times

Page 10 December 14, 2015 • Law Times www.lawtimesnews.com FOCUS Judges shoot down mandatory minimums Cases are problematic for courts it when comes to sentencing BY SHANNON KARI For Law Times wo more mandatory minimum sentences were found to be uncon- stitutional by Ontario Superior Court judges this fall. at may be just the start of simi- lar findings involving other man- datory minimums in the months ahead, say lawyers who have launched successful challenges. e decisions follow the Su- preme Court of Canada's finding earlier this year in R v. Nur that the minimum sentences for ille- gal possession of a loaded firearm would be "grossly disproportion- ate" in some cases and, as a result, breached the cruel and unusual punishment section of the Charter. "Once you accept the premise that a provision is unconstitu- tional, a lot of these laws are fairly similar," says Dirk Derstine, a partner at Derstine Penman, who acted for Hussein Nur in his chal- lenge of the firearm minimums. Defence lawyer John Norris says that some of the more recent mandatory minimum sentences, enacted under the government of former prime minister Stephen Harper, have been a source of con- cern to the courts. "Mandatory minimums, given how broadly they have been applied, have sat uneasily with the judiciary. ey are problematic from a principled point of view," says Norris. e most recent provision to be struck down was the mandatory minimum three-year sentence for anyone who "manufactures or transfers" or offers to manufacture or transfer a prohibited, restricted, or non-restricted firearm, a pro- hibited or restricted weapon, a prohibited device or ammunition — that is not authorized under the Firearms Act. A second of- fence under the section carries a minimum sentence of five years in prison. e minimum for the first offence was increased to three years from one by the former Con- servative government, which also added a new minimum for subse- quent offences under the section. Superior Court Justice Mark Edwards ruled in R v. Hussain on Nov. 25 that the section was sufficiently broad that it could require the imposition of a three- year prison sentence for what is effectively a licensing infraction and as result it was in breach of the Charter. Derstine, who was also the defence counsel in Hussain, put forward a "reasonable hypotheti- cal" that the provision could cap- ture a grandmother who passes down a gun that is a family heir- loom aer her war hero husband passes away. Crown attorney Mi- chael Newell suggested that this hypothetical was too far-fetched. Edward agreed, but the Superior Court judge, who was appointed by the Conservatives in 2010, put forward his own hypothetical that led to his finding that the law is unconstitutional. e judge's hypothetical in- volved "Smith," a licensed hunter. Smith lends his rifle to his brother so they can hunt together for the first time in several years, know- ing that his brother does not have a possession and acquisition li- cence. While hunting together, the brothers run into a former ac- quaintance from high school, who is now an OPP officer, and who lays charges against Smith. "While demonstrating that Smith had the necessary mens rea in that he transferred the gun to his brother knowing his brother did not have the neces- sary licence, equally, in my view, demonstrates that a three year sentence would be grossly dis- proportionate to the true crimi- nal offender that section 99 is de- signed to catch," the judge wrote. e other mandatory mini- mum to be struck down this fall involved new sentencing provi- sions in the Controlled Drugs and Substances Act, related to marijuana grow-ops. Peel Regional Police charged Duc Vu aer executing a search warrant at a residential dwelling in Brampton and finding more than 1,000 plants and 66 kilograms of wet marijuana. Vu is facing a man- datory minimum of three years in prison for being found guilty of operating a grow-op of more than 500 plants and the Crown having proved it was a potential public safety hazard in a residential area. In discussing the use of a rea- sonable hypothetical to determine if a punishment is grossly dispro- portionate, Superior Court Justice Bruce Durno addressed what the Supreme Court in Nur said about conducting this analysis. "e majority in Nur found a court was simply asking: What is the reach of the law? What kind of conduct may the law reasonably be expected to catch," wrote Durno in his Oct. 20 decision in R v. Vu. "In deciding the type of cases that mandatory minimum sentences may reasonably be expected to capture, judges are to bring to bear their judicial experience and com- mon sense." Norris, who represented Vu, argued that since a mandatory three-year sentence for a first of- fender with a loaded handgun was found to violate the Charter, it was disproportionate to impose this same sentence on the opera- tor of a marijuana grow-op that has been found to be a "potential" public safety hazard. e three- year minimum is the same as that imposed on large-scale producers of heroin and cocaine, the court heard. Durno agreed that some of the mandatory minimums for fewer than 200 plants could also capture licensed medical marijuana pro- ducers who unintentionally had more plants than they were per- mitted to grow. He found those sections to be unconstitutional. e judge invited Norris and the federal Crown to provide more written submissions about whether all of the grow-op mini- mum penalties are constitution- al, in advance of Vu's sentencing hearing, scheduled for Dec. 18. In Hussain, despite strik- ing down the weapons transfer section, the judge imposed a four-and-a-half-year sentence against the defendant who has a significant criminal record and was convicted of trafficking in a shotgun. Finding that a manda- tory minimum provision is too broad "will not result in the low- ering of sentences" for serious offences, says Derstine. LT T STAY CONNECTED TO YOUR LEGAL COMMUNITY British Columbia's vast legal community is right at your fingertips with the 2016 British Columbia Legal Telephone Directory. You get instant access to more than 11,000 lawyers and law offices spanning British Columbia, Northwest Territories, Nunavut and Yukon. Each year we ensure this directory includes the most up-to-date names, phone numbers, mailing addresses and emails, so you don't have to search anywhere else. 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