Supreme Court deals new blows to mandatory-sentencing rules

Posted on April 14, 2015 in Child & Family Policy Context – News/National
Apr. 14 2015.   Sean Fine – Justice Writer

The Supreme Court of Canada struck down the mandatory minimum sentence of three years for illegal possession of a firearm, calling the penalty cruel and unusual punishment under the Charter of Rights and Freedoms. It also struck down a five-year minimum for illegal gun possession for repeat weapons offenders, in related rulings Tuesday morning.

The Supreme Court of Canada says the government has the right to order the destruction of Quebec’s federal gun registry data. Prime Minister Stephen Harper says enough gun registries already exist in Canada.

The vote on the court was 6-3.

In a ruling written by Chief Justice Beverley McLachlin, the majority said the minimum terms would be fair in most cases, but would be grossly disproportionate in reasonably foreseeable cases that amounted to no more than licensing infractions, rather than serious crimes. “Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.”

The minority said that basing a law’s constitutionality on hypothetical cases that have never happened lacks common sense.

The rulings came in a major test of the Conservative government’s tough approach to sentencing. The government has passed dozens of mandatory minimum sentences for crimes related to guns, drugs and sex offences, limiting judges’ discretion to decide what fitting sentences are in individual cases. There has never been a presumption in Canadian law that minimum sentences are unconstitutional, but they were relatively unusual before 2006, when the Conservatives came to office.

Under the Tories, federal prison populations have reached record highs during a time of falling crime. The numbers of aboriginal offenders have soared, and critics have said that inflexible policies such as mandatory minimums fall hardest on aboriginal people. The federal government argues that the numbers of handguns on the streets of Canadian cities have been rising, and pose a severe threat to public safety.

One case before the court involved a three-year minimum sentence for illegal possession of a firearm that is loaded or with ammunition nearby. Hussein Nur tossed away a semiautomatic gun as police approached a youth centre in Toronto. The gun could fire all 24 of its bullets in 3 ½ seconds. Mr. Nur was 19 when he was convicted.

A trial judge said a 40-month sentence was reasonable for Mr. Nur, and the Ontario Court of Appeal said anywhere from two years less a day in provincial reformatory to three years in federal prison was reasonable. But in a 5-0 decision, the appeal court struck down the law as a violation of the Charter of Rights’s protection against cruel and unusual punishment.

Mr. Nur’s case turned on a controversial approach in which judges try to invent a “reasonable hypothetical” case in which the mandatory jail term would be grossly disproportionate to the actual crime. (It is the nature of the law that is at issue, not simply whether it fits the individual who is on trial. That principle has held sway since the early days of the 1982 Charter of Rights and Freedoms.)

The appeal court also struck down a five-year minimum sentence for illegal possession of a firearm when the individual has been previously convicted a serious weapons-related offence. Both minimum sentences took effect in 2008.

The appeal court judges created a “reasonable hypothetical” case involving an otherwise law-abiding gun owner with a registered licensed weapon who keeps the weapon safely stowed at a cottage, with ammunition in the next room. But the license requires the owner to keep the gun at home, not at the cottage.

The “reasonable hypothetical” test is the court’s way of emphasizing the notion “that an unfair law for some people is an unfair law, period,” said Benjamin Berger, who specializes in criminal law at Osgoode Hall law school.

The prosecution pointed out there had been no reported cases like the one described by the appeal court. And the federal Attorney-General argued in court documents that the Ontario Court of Appeal did not appreciate the gravity of the crimes at issue.

In an interview before the rulings were released on Tuesday, Prof. Berger called the two cases the “clearest, sharpest point of principled conflict” between the government and civil libertarians on the government’s crime agenda.

The government has not fared well on criminal-law cases in the past year and a half:

– The Supreme Court unanimously struck down prostitution laws and a ban on assisted suicide.
– The court was unanimous in softening the impact of the Truth in Sentencing Act, a centrepiece of the government’s crime agenda, by insisting that thousands of offenders detained before their trial have recourse to generous extra credit for the time they served.
– It unanimously struck down a law that toughened parole rules retroactively for white-collar criminals.

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