On April 14th, 2015, the Supreme Court of Canada ruled that certain mandatory minimum sentences for offences of possessing a prohibited or restricted firearm, when the firearm is loaded, are unconstitutional, according to the Canadian Charter of Rights and Freedoms. Under section 12 of the Canadian Charter of Rights and Freedoms, no person may be subject to cruel or unusual punishment and the Supreme Court decided that the law, which imposed a mandatory minimum sentence of three (3) years in a penitentiary for a first offence and a minimum of five (5) years in a penitentiary for a second or subsequence offence, constituted cruel and unusual punishment because it could result in grossly disproportionate sentences in some cases.
In fact, with respect to the cases of the two (2) defendants who appealed all the way to the Supreme Court, the majority of the Supreme Court was of the opinion that the mandatory minimum sentences of three (3) years and five (5) years respectively did not constitute cruel and unusual punishment. And, in fact, the majority of the Supreme Court decided not to interfere with the actual sentences imposed by the trial judges.
In general, however, the Supreme Court decided that there might be reasonably foreseeable cases caught by article 95 of the Criminal Code wherein the mandatory minimum sentence of three (3) years or five (5) years, as the case may be, might constitute cruel and unusual punishment and, therefore, that section of the Criminal Code (section 95(2)(a)) is unconstitutional and of no force or effect.
As the Supreme Court noted, the Criminal Code imposes severe restrictions on two (2) classes of firearms.
1. « Prohibited firearms » including short-barrelled handguns, sawed-off rifles and shotguns, and automatic firearms;
2. « Restricted firearms » including any handguns that are not prohibited firearms, some semi-automatic firearms, and some firearms that are less than the specified length.
The law imposes licensing schemes and criteria for the possession of prohibited or restricted firearms, as well as rules for transportation and storage. There are also rules in place for the storing of ammunition and the locking of firearms with locking devices, and in secure containers or safes.
Section 95 of the Criminal Code prohibits the possession of a loaded prohibited or restricted firearm. The offence applies to the person in possession of a prohibited or restricted firearm who does not have:
(a) an authorization or a licence to possess it at the specific place at issue; &
(b) a registration certificate for the firearm.
The Criminal Code provides that if such a person is prosecuted on summary conviction, the maximum punishment is one (1) year of prison, without any minimum punishment. However, if he is prosecuted by way of an indictment, he is liable to a maximum imprisonment of ten (10) years, and to a minimum punishment of three (3) years for a first offence and five (5) years for a second or subsequent offence.
Prior to 2008, the minimum punishment for prosecution by way of indictment was only one (1) year in prison.
The Supreme Court also noted that section 95 carries the most severe penalty of any other simple possession offences. The Supreme Court noted that section 95 applies to both prohibited and restricted firearms, the most dangerous type of weapons, as well as to firearms that are loaded or for which ammunition was readily available to load.
Section 12 of the Canadian Charter of Rights and Freedom states: « Everyone has the right not to be subject to any cruel and unusual treatment or punishment. »
The Supreme Court had previously said that sentences are unconstitutional in virtue of section 12 of the Charter if they are grossly disproportional to the punishment that is appropriate having regard to the nature of the offence and the circumstances of the offender, and that « gross disproportionality » means a punishment that is more than merely excessive. A sentence may be grossly disproportionate as applied to the specific offender or because it might have a grossly disproportional impact on others, and therefore be unconstitutional.
The Supreme Court noted that mandatory minimum sentences, by their nature, have the potential to depart from the principal of proportionality in sentencing. They may function as a blunt instrument that might prevent a Court from giving an appropriate sentence at the low end of the sentence range and may, in extreme cases, impose unjust sentences.
The Supreme Court also said that, while the particular sentence might be appropriate for these particular criminals, it must consider what other offenders might be reasonably covered by the possible mandatory minimum sentence, in order to judge whether the mandatory minimum sentence would be unconstitutional. Therefore, the Supreme Court looked at reasonably hypothetical cases as might come within the circumstance of section 95 to see if mandatory minimum sentences in such cases would be grossly disproportionate and therefore the section itself would be unconstitutional.
A « reasonable hypothetical » refers to a situation that may be reasonably expected to occur, not to marginally imaginable or far-fetched situations.
The Court stated that the test has two steps:
a) First, the Court must decide if the minimum sentence is grossly disproportionate for the individual before the Court. If not then it asks the second question;
b) Second, does the mandatory minimum sentence, when applied reasonably to foreseeable hypotheticals, impose grossly disproportionate sentences on other offenders?
The Supreme Court took the example of a person who had a valid licence for an unloaded, restricted firearm at his dwelling, but safely stored it with ammunition at a cottage. This example came from an actual case. In such an example, the court would normally have been allowed to consider the accused’s mistake of law as a mitigating factor to be considered in pronouncing a sentence proportionate to the crime, but would have been required under section 95 to impose a three (3) year minimum sentence. Since the situation could have been reasonably expected to occur, therefore, the minimum sentence was unconstitutional. Given such minimal blameworthiness of the offender and the absence of any harm or real risk of harm, a three (3) year minimum sentence would have been grossly disproportionate.
The Supreme Court decided that, what had become essentially a licensing infraction would generate an unconstitutional sentence and that, therefore, the mandatory minimum three (3) year imprisonment would be in violation of section 12 of the Canadian Charter.
Furthermore, the majority of the Supreme Court found that section 95(2)(a) was not saved under section 1 of the Canadian Charter of Rights and Freedoms as it was not a reasonable limit. In particular, the Supreme Court found that Parliament could have passed a section of the Criminal Code that was less broad and sweeping, and more reasonably tailored to the objective of preventing dangerous criminal behaviour. Thus, section 95 did not minimally impair the rights of a potential accused to a sentence that was reasonably proportionate to their conduct. Furthermore, the effect on the public good of mandatory minimum sentences in section 95 was outweighed by the harmful impact on an accused who might receive grossly disproportionate punishment. In that case, the Supreme Court decided that the violation of section 12 of the Canadian Charter of Rights and Freedoms was not saved under section 1 of the Canadian Charter of Rights and Freedoms and therefore the mandatory minimum sentences in section 95 of the Criminal Code are invalid.
This is not the say that an accused convicted under section 95 of possession of a prohibited or restricted firearm could not receive a sentence of three (3) or five (5) years. In fact, he could receive a longer sentence because the maximum sentence contained in the law is up to ten (10) years in prison. However, as of now, no judge can be forced to impose the mandatory minimum sentence of three (3) years for a first offender or five (5) years for repeat offenders.
It is perhaps ironic that the two accused, who brought this case before the Supreme Court, managed to convince the Court of section 95 being unconstitutional with regard to the mandatory minimum sentences, but the sentences imposed by the trial judge in both cases were not modified.
The Court also noted that research evidence has not shown that the severity of punishment has a greater deterrent effect on crime. In fact, the Supreme Court noted that research shows that, more often, the certainty of punishment has more of a deterrent effect on crime, that is, the greater possibility of being caught, tried and punished, rather than the specific leniency or severity of the possible punishment.
Franco Tamburro, attorney-at-law
Alepin Gauthier Avocats Inc.