Is a minimum
prison sentence of three
years for illegal gun possession
constitutionally invalid?
That
question was dealt with in one of Ontario ’s
Superior Courts. The ruling of Mr. Justice Code came down on August 30th
2011. But first, I will give you the background of this case.
The defendant’s name was Hussein Nur. He came toCanada from Somalia with his family in 1996.
The family claimed refugee status, and became permanent residents. None of the
family's other seven children had ever been in trouble.
At the time of the offence, Nur was with some young men outside a community centre on an evening that the centre was locked down because another young man inside the centre complained to the staff that he was afraid of someone outside. When theToronto police
arrived, Nur and the other youths outside the centre ran away. The officer who ran
after Nur saw him throw away an object while he was being chased by the
officer. Nur threw the object under a car. The object was a loaded 22 calibre
Intratec semi-automatic handgun with an oversized magazine with twenty-three
bullets in it, as well as one bullet in the gun’s chamber.
Nur did not testify under oath, but he made a statement on the witness stand explaining that he was at the centre to play basketball and had been asked by someone outside the centre to hold the gun for him and to run if police arrived. He denied knowing what the group was up to and felt he had no other choice given to him but to hold the gun for the other youth. That explanation is hogwash since no one can be forced to hold someone else’s gun for them.
He refused to testify under oath out of concern for his family's safety. Obviously if he had to give his testimony under oath, he would be subjected to a cross examination by the crown prosecutor and then he might have been asked for the names of the other youths which he didn’t really want to do because if he did, he would be called a rat by his friends.
Nur pleaded guilty on November 19, 2010 to one count of possession of a loaded prohibited firearm, contrary to section 95(1) of the Criminal Code. After his plea, the Nur admitted only the bare facts pleaded in the Indictment and put the Crown to the strict proof of all of the surrounding circumstances, given that these additional facts which Nur wasn’t prepared to admit to might aggravate the offence and increase the sentence.
When convicted, such a person would face a penalty for this kind of offence and given a mandatory minimum sentence, if he was preceded by way of indictment, of three years imprisonment. The crown proceeded against him by way of indictment.
Being prosecuted by way of indictment is equivalent to a felony charge in theUnited States and being prosecuted summarily is
equivalent to a misdemeanor charge in the US . In Canada, the Crown
(prosecutor is the person who decides which route to go to however, not all
offences in the Canadian Criminal Code
are crimes in which the Crown can proceed against the defendant by way of
indictment. With some crimes, the Code
permits either procedure to be used. Possession of an illegal gun is one of
these kinds of offences where the Crown can choose which procedure it wishes to
proceed against the accused with.
After Nur was convicted of being illegally in possession of a firearm, the matter then came up for sentencing. The following information about Nur was given to the judge.
Nur was finishing high school and applying to university when the present charges were laid. Nur's teacher and former employer filed glowing reference letters. His family remained supportive. Nur was 19 years old at the time of the offence.
Further, Nur had been in pre-trial custody for about twenty-six months at the time of final submissions in March 2011. This lengthy period of so-called “dead time” is complicated by the fact that it didn’t relate solely to the present offence. On May 3, 2010, Nur was charged with a further unrelated offence on which he had not sought bail. The first sixteen months of pre-trial custody were, therefore, attributable exclusively to the present charge involving the possession of the gun. However, the next ten months were attributable to both the present charge and the subsequent charge.
The judge was aware that Nur faced a deportation order based on the minimum three-year sentence mandated by the Criminal Code for his offence, because he was prosecuted by way of indictment. One complicating aspect to Nur’s antecedents is that he is not a Canadian citizen. As a ‘permanent resident’ only and not a citizen, he is subject to deportation, pursuant to ss. 36(1), 44(1) and 45(d) of the Immigration and Refugee Protection Act, on grounds of ‘serious criminality’ since the illegal possession of a firearm is a serious crime.
The judge took into consideration that Nur’s discarding of the gun in a public place was an aggravating factor for the judge to consider since the gun could later have been picked up by a child or another criminal. Aggravating circumstances included Nur's presence outside the centre in somewhat of a threatening manner. Further, he provided no evidence under oath explaining why he possessed a handgun with an oversized magazine outside a community centre, his flight from police and discarding of the handgun in public, (where a child or other criminal could have found it) and the use of an oversized magazine that would hold more than the usual amount of bullets thereby adding to the potential danger. His description of his actual role within the group outside the centre was unclear. His explanation could not be used to militate against these circumstances.
The Crown sought a sentence of at least three-and-one-half years' imprisonment. The six months was over and beyond the minimum sentence of three years for being in possession of an illegal firearm. Nur was sentenced to 40 months imprisonment. He would be eligible to apply for parole after serving twenty-six and a half months.
Interveners acting on behalf of Nur challenged the constitutionality of the minimum sentence, pointing out there was a disproportionately high rate of charges of this type in the black community where Nur lived. They contended, that through the use of hypothetical situations that the sentence could be disproportionate to the actual crime he was convicted of. They also took the position that it was an arbitrary sentence given the existence of a two-year sentencing gap between the minimum sentence and the maximum one-year sentence available upon a summary conviction.
The defendant’s name was Hussein Nur. He came to
At the time of the offence, Nur was with some young men outside a community centre on an evening that the centre was locked down because another young man inside the centre complained to the staff that he was afraid of someone outside. When the
Nur did not testify under oath, but he made a statement on the witness stand explaining that he was at the centre to play basketball and had been asked by someone outside the centre to hold the gun for him and to run if police arrived. He denied knowing what the group was up to and felt he had no other choice given to him but to hold the gun for the other youth. That explanation is hogwash since no one can be forced to hold someone else’s gun for them.
He refused to testify under oath out of concern for his family's safety. Obviously if he had to give his testimony under oath, he would be subjected to a cross examination by the crown prosecutor and then he might have been asked for the names of the other youths which he didn’t really want to do because if he did, he would be called a rat by his friends.
Nur pleaded guilty on November 19, 2010 to one count of possession of a loaded prohibited firearm, contrary to section 95(1) of the Criminal Code. After his plea, the Nur admitted only the bare facts pleaded in the Indictment and put the Crown to the strict proof of all of the surrounding circumstances, given that these additional facts which Nur wasn’t prepared to admit to might aggravate the offence and increase the sentence.
When convicted, such a person would face a penalty for this kind of offence and given a mandatory minimum sentence, if he was preceded by way of indictment, of three years imprisonment. The crown proceeded against him by way of indictment.
Being prosecuted by way of indictment is equivalent to a felony charge in the
After Nur was convicted of being illegally in possession of a firearm, the matter then came up for sentencing. The following information about Nur was given to the judge.
Nur was finishing high school and applying to university when the present charges were laid. Nur's teacher and former employer filed glowing reference letters. His family remained supportive. Nur was 19 years old at the time of the offence.
Further, Nur had been in pre-trial custody for about twenty-six months at the time of final submissions in March 2011. This lengthy period of so-called “dead time” is complicated by the fact that it didn’t relate solely to the present offence. On May 3, 2010, Nur was charged with a further unrelated offence on which he had not sought bail. The first sixteen months of pre-trial custody were, therefore, attributable exclusively to the present charge involving the possession of the gun. However, the next ten months were attributable to both the present charge and the subsequent charge.
The judge was aware that Nur faced a deportation order based on the minimum three-year sentence mandated by the Criminal Code for his offence, because he was prosecuted by way of indictment. One complicating aspect to Nur’s antecedents is that he is not a Canadian citizen. As a ‘permanent resident’ only and not a citizen, he is subject to deportation, pursuant to ss. 36(1), 44(1) and 45(d) of the Immigration and Refugee Protection Act, on grounds of ‘serious criminality’ since the illegal possession of a firearm is a serious crime.
The judge took into consideration that Nur’s discarding of the gun in a public place was an aggravating factor for the judge to consider since the gun could later have been picked up by a child or another criminal. Aggravating circumstances included Nur's presence outside the centre in somewhat of a threatening manner. Further, he provided no evidence under oath explaining why he possessed a handgun with an oversized magazine outside a community centre, his flight from police and discarding of the handgun in public, (where a child or other criminal could have found it) and the use of an oversized magazine that would hold more than the usual amount of bullets thereby adding to the potential danger. His description of his actual role within the group outside the centre was unclear. His explanation could not be used to militate against these circumstances.
The Crown sought a sentence of at least three-and-one-half years' imprisonment. The six months was over and beyond the minimum sentence of three years for being in possession of an illegal firearm. Nur was sentenced to 40 months imprisonment. He would be eligible to apply for parole after serving twenty-six and a half months.
Interveners acting on behalf of Nur challenged the constitutionality of the minimum sentence, pointing out there was a disproportionately high rate of charges of this type in the black community where Nur lived. They contended, that through the use of hypothetical situations that the sentence could be disproportionate to the actual crime he was convicted of. They also took the position that it was an arbitrary sentence given the existence of a two-year sentencing gap between the minimum sentence and the maximum one-year sentence available upon a summary conviction.
The three-year-minimum was brought about because of the courts eventually making it clear that exemplary or denunciatory sentences must be imposed because of the proliferation of loaded handguns causing grave danger to the public especially where the problem was and is still particularly acute in
There is no question that our courts in
Once this approach became firmly entrenched, around 2005, the appropriate sentence for a first offence of possession of a loaded handgun, that is, where there were no additional convictions such as for drug trafficking, tended to be between two years less a day and three years imprisonment. Much longer sentences were imposed for recidivists. It is not surprising that this approach took hold around 2005. It was however in 2005 that
The defence counsel’s submission, that the judge in the Nur case should ignore the one year mandatory minimum sentence that came into force in 1998, is an invitation to ignore the rule of law. When Parliament enacted the new offence of possession of a “loaded” prohibited or restricted “firearm” in 1995, it enacted both a maximum sentence of ten years on indictment and a minimum sentence of one year imprisonment. No successful constitutional attack was ever brought against these provisions.
The judge didn’t accept either the position of the defence or the position of the Crown. He felt that the defence’s position was legally untenable and the Crown’s position was not supported by the facts.
The judge was well aware that social norms and judicial responses to them have changed since the 1980s and 1990s. The proliferation of handguns has increased, homicides involving handguns have increased, and the justice system has responded to public alarm by stiffening its approach to sentencing in cases involving handguns. It is a common phenomenon, in the law of sentencing, for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change.
The courts eventually decided, in the post-2005 period, that more severe penalties were needed to achieve denunciation and deterrence, even in the cases of young first offenders
In R. v. Willaert, an appeal heard before the Ontario Court of Appeal in 1953, the justices made it clear that appropriate sentences will change over time as the “needs of society” change. One of the justices hearing the appeal said;
“I am respectfully of the opinion that the true function of criminal law in regard to punishment is in a wise blending of the deterrent and the reformative, with retribution not entirely disregarded, and with a constant appreciation that the matter concerns not merely the Court and the offender but also the public and society as a going concern. Punishment is, therefore, an art—a very difficult art—essentially practical, and directly related to the existing needs of society. A punishment appropriate today might have been quite unacceptable two hundred years ago and probably would be absurd two hundred years hence. It is therefore impossible to lay down hard and fast and permanent rules.” unquote
The Crown’s submission, that three and one-half to four years imprisonment is the appropriate range, depends on certain aggravating facts which the Crown sought to establish and of which he did.
The judge in his ruling said,
“Being in possession of a loaded handgun outside a Community Centre, in some kind of threatening manner, such that the Centre staff “lock down” the premises and call the police, is undoubtedly an aggravated form of the offence the accused has been convicted of. Community Centres must be protected against the threat posed by the presence of loaded handguns, on or near their premises. Fleeing from the police and throwing the gun away in a public parking area exacerbated the danger inherent in the situation. Finally, the use of an over-sized magazine added further to the potential danger involved in this particular possessory offence. These aggravating facts have all been proved by the Crown against the accused Nur to the requisite degree.” unquote
\
In
Nur’s case, the judge referred to Nur making a statement while on the witness
stand. He said;
“I
am satisfied that what happened in this case was a misuse of the right to make
a “dock” statement pursuant to section 726. As a result, I am left with
no proof, one way or the other, as to when and in what circumstances the
accused Nur came into possession of the gun.” unquote
In
other words, he should have explained how he got the gun handed to him to hold
while under oath instead of simply making a statement that may not be believed
because his statement wasn’t under oath. The judge might have felt that Nur may
have been the actual owner of the gun all along.
It
was held by the majority of the Supreme Court of Canada in R. v. Gardiner that if the Crown advances contested
aggravating facts in a sentencing proceeding for
the purpose of supporting a lengthier sentence, it
must prove those aggravating circumstances beyond a reasonable doubt. But
such a case does not support the reverse proposition that in the absence of
such proof all possible mitigating facts must be assumed in favour of the
accused.
The
plain fact is that it was not established one way or the other whether Nur was
holding the gun for someone else or was the real owner of the gun. Being the
owner would result in a greater punishment than simply holding the gun for
someone else.
The
judge then said,
“If
I was satisfied, as the Crown alleges, that the accused Nur had been involved
in antecedent threats or intimidation of the young man who went inside the
Centre and that he had been in possession of the gun throughout the siege of
the Centre, thus playing a major role in the ongoing events, I would agree with
the Crown’s position that the appropriate range of sentence
would be more than three years imprisonment. However, the facts are open
to the reasonable possibility that Nur arrived after the threats or intimidation
had been initiated by the tall man dressed in black, with a bandana around his
face, and that Nur was given the gun after his arrival.” unquote
Nur
was sentenced to 40 months' imprisonment. Taking into account 20 months of
pre-sentence custody, he was credited on a two-for-one basis and received a
sentence of time served plus two years' probation.
Nur
was a youthful offender with good rehabilitative prospects. The court could not
base an appropriate sentence for Nur on pre-1998 jurisprudence, because the
offence of which he was charged did not exist then and was a more aggravated
charge than that which did exist.
The
use of illegal handguns by criminals has become a more prevalent societal
problem over the years, thereby warranting increased sentences to provide the much
needed deterrence and denunciation. The minimum sentence does not cause a
discriminatory effect or disproportionate impact just on blacks alone as it
applies to all offenders. It was not grossly disproportionate to the
circumstances of this kind of offence or to Nur. The two-year sentencing gap
unreasonably restricted the flexibility of hybrid procedures and would
inevitably lead to unfit sentences. It appears to have been a legislative
oversight. Because the gap did not infringe Nur's rights, he lacked standing to
challenge it.
Guns
are dangerous. Handguns are particularly dangerous. Concealed,
loaded handguns are even more dangerous. Anyone who loads a handgun with
bullets and then carries that handgun concealed on his person especially into a
public place is by definition a dangerous person. Such handguns are used
to shoot people. Such a criminal will have demonstrated his willingness to
shoot other human beings with a handgun. If that is not so, then why would
he have loaded it? That person is dangerous to those with whom he
associates, to the police and other law enforcement personnel, to the members
of his community, especially to innocent bystanders including children who may
be killed or maimed by stray bullets. And equally importantly, he is
dangerous to our way of life that is treasured everywhere —a way of life that
respects the rule of law to ensure the peace and safety of everyone in our
communities.
About
thirty years ago I was invited to address a public meeting being held in the
Council Chambers of North York (now a suburb of Toronto ) about gun control. I was concerned
about criminals carrying concealed loaded guns on their person. I said at the
end of my speech;
“It
has been said that criminals carrying loaded guns should be put in prison cells
and the keys thrown away. I say this is not an appropriate way to deal with
these criminals. I think we should put them in prison and throw the damn prison
away.”
Needless
to say, I got a standing ovation because the people in the packed Chamber were
fed up with all the gunfire taking place in their city by criminals carrying
concealed handguns wherever they went.
Leroy Smickle was very stupid to have been taking pictures of himself
posing with a loaded illegal gun. Somehow those pictures ended up in the
Toronto Poilice Force and subsequently, this stupid man ended up in court
facing a possible three-year sentence of imprisonment.
The
Ontario judge hearing his case ruled in favour of Smickle by striking down the
mandatory minimum sentence for illegal gun possession because he said that
particular law was unconstitutional. He said in part; “Sending a first-time
offender to prison for three years for possessing a loaded gun is cruel and
unusual punishment.”
Quite
frankly, I don’t agree with that judge’s view. The trial should not have been
concerned about the man’s character but rather the judge’s real concern should have been the importance
of deterrence to those who appear to have no qualms about strutting about with
loaded illegal guns in their hands.
At the same
time, it should be possible to increase the severity of sentences for such crimes
while allowing judges discretion to impose lesser sentences when the
circumstances justify it.
I don’t think that posing with
an illegal loaded gun justifies have a lower sentence awarded to the offender.
What does justify a lower sentence is when the accused is in a car when another
passenger shows him the illegal loaded gun. Some
flexibility in such an instance is what is needed in the sentencing regime.
The trial judge sentenced the
man who posed with the illegal loaded gun to one year to be served in the
community. As I implied earler, in my opinion, that sentence was not the
appropriate sentence he should have received. My concern was that he actually
posed with a loaded gun which he wasn’t authorized to have in his possession.
The whole idea of having a three-year minimum sentence for possessing such a
weapon on the books is to deter criminals who choose to possess such a weapon in the first place.
No matter why the trial judge
thought that the three-year maximum was unconstitutional, there was however a way
out for him to reduce the sentence of the offender. Section 96(1)(b) of the Canadian Criminal Code states that if
the offender is convicted by way of summary conviction (as a misdemeanor) the
law permits a judge to sentence the offender to one year incarceration or
alternatively, one year serving his sentence in the community which is actually
what the man who posed with the illegal gun in his hand in his Facebook got. The
man’s act was one of stupidity rather than one of criminality.
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