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 30^th 2011. But first, I will give you the background of this case.

The defendant’s name was Hussein Nur. He came to Canada 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 the Toronto 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 the United 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 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 Toronto. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.

 There is no question that our courts in Canada have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms.  The Ontario Court of Appeal has repeatedly said that the use of guns in public places in Toronto cries out for lengthy sentences.  The trial judge dealing in Nur’s case also had the same serious concern of growing gun violence in Toronto as other judges have and took that into account when deciding what would be an appropriate sentence to be given to Nur.   




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 Toronto experienced a dramatic increase in gun-related homicides.  It came to be known as “the year of the gun”. 

The defence submitted that the judge should look back to pre-1998 court decisions, that is, to a time when there was no mandatory minimum sentence. Without the influence of mandatory minimums, the defence submitted that a sentence of one year imprisonment would have been appropriate in this case.  The Crown, on the other hand, submitted that the facts of the present offence were far more aggravated than any of the post-2005 decisions shown to the court.  According to the Crown’s submission, three and one-half to four years imprisonment would have been the appropriate range in this particular case.

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
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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. 

 

In any case, the crown (prosecutor) didn’t appeal the decision so that particular case wasn’t heard in the Ontario Court of Appeal but a judge in that court when writing his decision on another case before him stated that he didn’t take issue with the decision given in the Smickle appeal tregarding the three-year mandatory minimum sentence provided for under s. 95(2)(a) of the Code.

 

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.