Wednesday 27 November 2013

Should there be a minimum  sentence  for  unauthorized  possession of  a  gun?

Canada’s Criminal Code applies everywhere in Canada and because of the problems of far too many shootings taking place in Canada, the members of Parliament in 2008 voted in favor of enacting a law that anyone who has unauthorized possession of a firearm could be sentenced to a minimum of three or five years in prison. Since that law is mandatory, it means that the judge has no other choice but to sentence such a person to prison for three years or five years in prison irrespective as to why he had it in his or her possession.                                                

On December 9, 2011, at the conclusion of a trial before Kelly J. of the Superior Court of Justice, Ian Chambers was convicted of eight firearm-related offences and sentenced to prison for five years and two months after he was given credit for pre-sentence custody. He had a terrible record of firearms convictions. He was 25 years old at the time of sentencing.  This was his third conviction for firearms offences.  In 2004, the appellant was convicted of possession of a loaded prohibited or restricted firearm.  He received a suspended sentence (after credit for seven months and 15 days’ pre-sentence custody), two years’ probation and a mandatory firearms prohibition order under s. 109 of the Code.  Four years later, in 2008, the appellant was convicted of possession of an unauthorized firearm and possession of a firearm contrary to the firearms prohibition order imposed in 2004. Obviously, the punishment he was given had no real effect on his conduct.

During the sentencing phase of his trial, the Crown (prosecutor) sought a period of incarceration of 13.5 years.  Defence counsel at trial (not counsel on appeal) urged a total sentence of seven years’ imprisonment.  The sentencing judge and both counsel proceeded on the basis that the mandatory minimum sentence of five years’ imprisonment for repeat firearms offenders provided for under s. 95(2)(a)(ii) of the Code applied in the circumstances.  Before the sentencing judge, the defence did not challenge the constitutionality of this five-year mandatory minimum sentence provision.

There were three grounds for his appeal however I will deal only with the third one—Does the five-year mandatory minimum sentence for repeat firearms offenders established by s. 95(2)(a)(ii) of the Code violate ss. 7 or 12 of the Charter?    

Section 7 guarantees the life, liberty and personal security of all Canadians. It also demands that governments respect the basic principles of justice whenever it intrudes on those rights. Section 7 often comes into play in criminal matters because an accused person clearly faces the risk that, if convicted, his or her liberty will be lost.       

Section 12 means that everyone has the right not to be subjected to any cruel and unusual treatment or punishment and governments cannot treat individuals or punish them in an excessively harsh manner. For instance, the Supreme Court of Canada held that a law creating a minimum sentence of seven years' imprisonment for the crime of importing narcotics into Canada, regardless of the quantity involved, imposed cruel and unusual punishment.

Chambers did not raise these issues at trial; instead he was advancing them for the first time on this appeal hearing.  It is well-established that appeal courts generally will not entertain arguments not made at trial.  This general rule applies to constitutional arguments raised for the first time on appeal, regardless of the constitutional remedy sought.

The court said; “In any event, in my view, we need not reach these constitutional issues in this case. Regardless of the mandatory minimum sentence of five years’ imprisonment established by s. 95(2)(a)(ii) of the Code, the circumstances of these offences and this offender, as outlined by the sentencing judge, amply justify the sentences imposed at trial.  The fresh evidence filed on appeal does not alter this conclusion.  The sentencing judge made no error in principle and the overall sentence imposed is not demonstrably unfit.  In these circumstances, it is unnecessary to consider the appellant’s constitutional challenges to s. 95(2)(a)(ii) of the Code.”                                                                                

There was another case that in fact did deal with the issue as to whether or not the five-year minimum is contrary to the Charter of Rights and Freedoms. The man who received that sentence was Nussein Hur.
However the Ontario Court of Appeal ruled that the mandatory minimum sentences for gun possession are "cruel and unusual punishment," and subsequently struck down two planks of Ottawa's law-and-order agenda.
The sentencing laws, enacted as part of the Conservatives' 2008 omnibus bill, could see people sent to prison for three years for what would amount to a licence violation, the Court of Appeal for Ontario ruled.
In that scenario, there is a "cavernous disconnect" between the severity of such an offence and the severity of the sentence, the court ruled;
“The law as written could capture anyone from a person keeping an unloaded restricted gun, with ammunition accessible, in their cottage when their licence requires it to be in their home, to a person standing on a street corner with a loaded gun in his back pocket "which he intends to use as he sees fit.”
The court further stated that no system of criminal justice that would resort to punishments that 'outrage standards of decency' in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry.”
“Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system.”
The Appeal Court heard six appeals together because each involved a constitutional challenge to a mandatory minimum sentence for various firearm offences. In a decision released on November 12, 2013, , the court struck down both the three-year mandatory minimum for a first offence of possessing a loaded prohibited gun and for five years on the second offence.
The ruling has no significant impact on sentences for people engaged in criminal conduct or who pose a danger to others, the court said, adding they should continue to receive sentences to emphasize deterrence and denunciation such as what was applied in the case involving Ian Chambers.
Lawyer Dirk Derstine, who headed up the main appeal, said there was a "mountain" of social science evidence that mandatory minimums do not have a deterrent effect.
The government will likely appeal to the Supreme Court of Canada, though it could probably get an amended law passed faster than the appeal could be heard at the top court.  
Obviously Parliament’s ability to enact ever more punitive criminal sanctions is not absolute, especially when they take away the ability of courts to fashion a fit and proper sentence. There are times when mercy should be applied. For example, should someone who fears for his life, seizes a gun from someone aiming it at him and then is in possession of it, be sent to prison for three years because his motive isn’t applicable since the sentence is mandatory?
"Sentencing is a highly individualized process because the human condition is that we do things in a million different ways with a million different levels of culpability and sentencing ought to be a nuanced thing.  
Justice Minister Peter MacKay's continues to support the mandatory sentencing rule because in his opinion; "Mandatory minimums ensure those who commit serious or repeat offences are not free to recommit those offences.”
But he has ignored the fact that a judge may still sentence a repeat offender to five or more years if he is convinced that a lesser sentence would achieve nothing in reforming and/or deterring the criminal from repeating his offences.
The law had been previously struck down by an Ontario Superior Court judge in the case of Leroy Smickle. He was in his cousin's house in his boxers, posing for a Facebook picture with a loaded handgun, when police burst in with a search warrant for the cousin, who they believed had illegal firearms.
Smickle was convicted of possession of a loaded prohibited firearm, but the judge ruled that it would be cruel and unusual to send the first-time offender to prison for a "very foolish" act for three years. Judge Anne Molloy gave Smickle a one-year conditional sentence.
I think his decision to apply mercy in that particular case was justified.
But the Appeal Court said that sentence was "totally inadequate" as his behavior posed a "serious and immediate risk to others."
A sentence of about two years less a day would have been appropriate without a mandatory minimum sentence, the court ruled, so his lawyers will have to return to court to argue his sentence.
Instead of Smickle, the court considered what is called a reasonable hypothetical.
It raised the case of John Snobelen, a former Ontario cabinet minister who was charged after his wife told police — during marital difficulties — about a gun he bought in the U.S. and didn't register it.
He received an absolute discharge because the Crown proceeded summarily. The three-year mandatory minimum is in place if the Crown proceeds by indictment, which is more serious.
By making it a hybrid offence, Parliament acknowledged that conduct captured by the offence runs the gamut. The Crown argued that for less morally blameworthy situations, the Crown will simply proceed summarily.
However, the court said, since those decisions are made early on, there will "inevitably" be cases that mean the Crown would have made a different choice as more facts emerge.
In Snobelen's case, if his wife alleged Snobelen used the presence of the gun to intimidate her, the Crown could have opted to proceed by indictment, the court wrote. The court also said, "In those circumstances, the three-year penitentiary term would surely be a grossly disproportionate sentence.”
The Appeal Court also struck down a five-year mandatory minimum sentence for gun possession as a second offence in a case involving Sidney Charles. He was convicted after a loaded gun was found in his bedroom at a rooming house. He challenged the law about what constitutes an earlier offence. The Appeal Court accepted his argument, not about his own case, but on another reasonable hypothetical.
Since the three-year mandatory minimum sentence was found to be disproportionate on a first offence, it defies logic and principle to leave the five-year mandatory minimum intact simply because of a prior offence.  
Federal government lawyers argued in support of the law, raising a spate of gun violence in 2005, which first prompted Ottawa to propose the stiffer penalties.
 Sentencing is always difficult for judges because there is no way in which they can determine if the sentences they award to those whom they have convicted will deter the offenders from repeating their offences or whether or not it will act as a balm to those who have been victimized by the offender. We have to rely on their good judgment.

There are some minimum sentences that are still in effect such as sentences for first and second degree murder and for impaired driving etc. It is highly unlikely that they will be altered in time either by the courts or by parliament.                  

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