The Supreme Court of Canada released its decision on mandatory minimum sentences for illegal firearms possession on April 14, 2015 (see Her Majesty the Queen, et al. v. Hussein Jama Nur, et al.)
Oral arguments for the case Her Majesty the Queen, et al v Hussein Jama Nur, et al (“Nur”) and Her Majesty the Queen, et al v Sidney Charles, et al (“Charles”) regarding the constitutionality of the section 95 Criminal Code, were heard on November 7, 2014.
Nur addresses the three-year mandatory minimum for first time offenders and Charles, the five-year mandatory minimum for second or subsequent offences. The plaintiffs argued that the three-year and five-year mandatory minimums impose a punishment that is grossly disproportionate to the offence, contrary to section 12 of the Canadian Charter of Rights and Freedoms (the “Charter”).
In R v Nur, 2011 ONSC 4874 (“Nur, ONSC”), Code J. concluded that the three-year mandatory minimum did not violate either sections 12 or 15 of the Charter. However, the Ontario Court of Appeal (R v Nur, 2013 ONCA 677 (“Nur, ONCA”) disagreed with Justice Code and unanimously concluded that the three-year minimum sentence infringed Mr. Nur’s section 12 Charter rights and could not be saved by section 1. Writing for the majority, Doherty J declared the minimum three-year sentence required by section 95(2)(a) of the Criminal Code to be of no force or effect. Goudge J., Cronk J., Blair J. and Tulloch J. have all agreed with Justice Doherty’s reasoning.
Similarly to Nur, ONCA, the Ontario Court of Appeal in R v Charles, 2013 ONCA 681 (“Charles, ONCA”), unanimously concluded that: “like the mandatory minimum penalty of three years’ imprisonment provided for under s. 95(2)(a)(i) upon first conviction for a s. 95(1) offence, the five-year mandatory minimum sentence imposed by s. 95(2)(a)(ii) upon conviction for a s. 95(1) offence that constitutes a second or subsequent offence amounts to cruel and unusual punishment that cannot be salvaged by s. 1 of the Charter (Charles, ONCA, para 10).”
Cronk J. rendered this particular judgment. Doherty J, Blair J., Tulloch J. and Goudge J. have supported their colleague.
When Nur was heard on November 7, Chief Justice McLachlin made the following statement in the course of the hearing: “If we rule today that the majority of mandatory minimum cases regarding the possession of firearms are constitutional, then we leave ourselves open to the possibility that a truly unconstitutional matter regarding section 95 may come before a trial judge and the trial judge is unable to hear the case since we have already reached the conclusion that the mandatory minimum is constitutional.” Similarly, during the submissions of counsel for the appellants regarding conduct that is covered under section 95 of the Criminal Code, Abella J, as a point of clarification, asked whether or not a person who is not authorized to have the licensed gun in their possession or in a particular place and who did not intend to use it for gang-related incidents could be convicted under section 95.
Although Stephen Harper’s conservative government was often accused by the left of intruding on judicial discretion in sentencing, our criminal laws have included mandatory minimum penalties since Canada’s first Criminal Code was passed in the 1890s.
The first mandatory minimums were enacted along with the Bill Representing the Criminal Law which came into force on July 1, 1893. This early version of the Criminal Code was based in part on the works of Sir James Fitzjames Stephen. At the time, six offences carried mandatory terms of imprisonment:
1)prize fighting;
2)frauds upon the government;
3)stealing post letter bags;
4)stealing post letters;
5)stopping the mail with the intent to rob;
6) corruption in municipal affairs.
In 1915, Parliament added to the original six offences carrying mandatory minimums by enacting a mandatory sentence of three months in prison for anyone convicted three or more times of being a keeper or inmate of a common bawdy house.
Between 1917 and 1922, Parliament also introduced minimum sentences for insurance fraud, injuring persons by “furious driving” while impaired, stealing an automobile and, for the first time, certain drug offences.
By 1927, 13 offences carrying mandatory minimum terms of imprisonment were on the books.
Between 1928 and 1954, the Criminal Code was amended nine more times to add mandatory minimum sentences. It is particularly interesting to note that this period witnessed a marked increase of mandatory minimums. It also witnessed the beginning of a trend that would resurface again in the 1990s:mandatory minimums for offences involving firearms.
To be more precise, in 1995, the Chrétien government spearheaded one of the largest enactments of mandatory minimum sentences in the history of the Criminal Code by introducing Bill C-68. Bill C-68 incorporated 18 more mandatory minimum penalties into the Criminal Code. Check it out here: http://www.parl.gc.ca/…/3…/Government/c-68/c-68_4/c-68_4.pdf
In 1996, the Chrétien government followed up with Bill C-27 which created a new offence for aggravated procuring and living off the avails of child prostitution with a five-year minimum term in prison. You can verify this information here:http://www.parl.gc.ca/…/3…/Government/C-27/C-27_4/C-27_4.pdf
By 1999, there were a total of 29 offences in Canada with mandatory minimum terms of imprisonment- the highest number in our country’s history.
In 2008, Prime Minister Stephen Harper’s government introduced Bill C-2. This bill increased the length of the mandatory minimums introduced earlier for firearms and impaired driving offences and it also imposed escalating minimum penalties for repeat offenders with firearms. It followed up by introducing Bill C-10, the Safe Streets and Communities Act which included new (or higher) mandatory minimums for certain drug and sexual offences. The Harper government then passed Bill C-37, doubling the victim fine surcharges imposed on offenders and making them mandatory. Finally, it introduced the Tacking Contraband Tobacco Act in November 2013 and the Tougher Penalties for Child Predators Act in February 2014. Both bills have added mandatory penalties to the books.
A key feature of our system of government is that Parliament constantly reviews old legislation and passes new legislation with a view to ensuring that its laws, including its sentencing laws, properly align with the demands of justice. It is important for us to know what the law is in advance so that we can govern ourselves accordingly. This includes knowing what sentence will likely attend the commission of a particular criminal offence.
Opponents of mandatory minimum sentences tend to focus on the restrictions that these laws impose on a sentencing judge’s ability to tailor the sentence to an offender’s unique circumstances. But let us consider one example. In 1976, Parliament abolished the death penalty. There is no question that this decision represented a restriction on a sentencing judge’s discretion insofar as it took the ultimate penalty off the table. This decision has never been maligned by academics and criminal defense lawyers as an intrusion on judicial discretion in sentencing.
Mandatory minimums reflect the lowest possible sentence for the least culpable offender. The policy underlying any given sentencing floor is a function of Parliament’s (not the courts’) answer to an important question: “What sentence would be appropriate for the least morally culpable person whose behavior still constitutes the elements of the offence?” Thus, it is important for the judges to demonstrate considerable deference to highly political decisions of Parliament when statutes are enacted. Individual judges should apply constitutional Acts of Parliament and to uphold the rule of law. These duties are set out in many places. For example, in its code of conduct entitled Ethical Principles for Judges, the Canadian Judicial Council states: “The judge’s duty is to apply the law as he or she understands it without fear or favor and without regard to whether the decision is popular or not. This is a cornerstone of the rule of law.”
Ignoring mandatory minimums is no more acceptable than would be ignoring mandatory maximums. Today, the public would react with outrage if a judge purported to impose a death sentence. However, setting aside the obvious differences, imposing such a sentence would be no different from a constitutional law perspective than refusing to apply a mandatory minimum or surcharge that passes constitutional muster. This is true regardless of how justified sentencing judges think themselves in refusing to apply the law.
In a 2007 article entitled Public Attitudes to Sentencing in Canada: Exploring Recent Findings, the authors considered the attitudes of Canadians towards various sentencing issues, including the severity of sentencing and mandatory sentencing (Robert, Crutcher, and Verbrugge 2007, 75). It was found that most Canadians thought that Canada’s sentencing regime is too lenient on offenders (Robert, Crutcher, and Verbrugge 2007, 83). It is, therefore, hardly surprising that Parliament, taking Canadians’ views into consideration, has stepped in to impose what it believes to be a just sentencing range for certain offences.
Firearm-related violent crime can have considerable physical, emotional, and psychological effects on those who are victimized, on families, and on communities. We all remember fatal Toronto shootings. As a result, firearm-related violent crime is a significant social concern in Canada.
Unfortunately, the SCC did not uphold existing mandatory minimum penalties for illegal firearms possession. But justice Moldaver’s dissent makes sense.