Is a minimum sentence for possession of an illegal gun appropriate?                             

In Canada, we have a gun problem. It certainly isn’t as bad as what is occurring in the United States with respect to fatal shootings but it is nevertheless a great concern to those of us who live in Canada. Our country reports 30.8 firearms possession per 100 people. The country ranks 13 worldwide for firearms per capita. The US has the highest gun ownership rate in the world with an average of 88 per 100 people. Canada in 2012 had 173 people killed by guns whereas the United States had as many—9,146 killed by guns. Of course, there is ten times the population in the US than there is in Canada. If the population of the United States were the same as in Canada, then that would mean that only 914 persons in the US would be killed in 2012. Still despite the ratio, there are far too many people being killed by firearms in the US. One of the reasons is that gun control is extremely lax in the US whereas gun control in Canada is extremely tight. Almost no one in Japan owns a gun. Most kinds of guns are illegal in Japan and with onerous restrictions on buying and maintaining the few that are allowed to have them, it is rare when someone is killed by a firearm in Japan.

Canada has no intention of forbidding its citizens from owing a gun however the current government decided that there has been far too many shootings by people who possess illegal guns so they brought in a law that stated that anyone who is found in possession of an illegal firearm as a first offence will receive a minimum sentence of one year if proceeded by way of a summary offence proceeding (misdemeanor) or three years in prison for the first offence if proceeded by way of an indictment procedure (felony) and five years for the second offence and any such offence thereafter.

Now let me say right from the start of this article that there are certain dangers inherent in sentencing convicted criminals to minimum sentences. For example, many years ago, a woman was sentenced to seven years for bringing into Canada illicit drugs. She denied that she even knew there were drugs in her suitcase. Her boyfriend went to the police after she was sentenced and confessed that it was he who had placed the drugs into her suitcase and did it without her knowledge. He was charged, convicted and sentenced to seven years in prison and his girlfriend was released from prison and her conviction vacated. 

There was a great clamor after he was sentenced. Even the judge was sympathetic and said publicly that he had no other choice but to sentence the boyfriend to the minimum of seven years in prison. The government realizing that the judge should have had the discretion to decide just how long the boyfriend’s sentence should have been and other cases like it, subsequently removed the minimum sentence for such criminals from the Criminal Code of Canada. They boyfriend was subsequently released soon after.

Now we still have minimum sentences for certain crimes in Canada. For example, there are minimum sentences for impaired driving and refusal to blow in a breathalyzer. There are also minimum sentences for manslaughter and murder. But the question that came up last year was whether or not there should be minimum sentences for possession of illegal guns. The matter ended up in the Supreme Court of Canada.

I will now give you the background of the illegal gun possession case that necessitated the matter ending up in the Supreme Court of Canada. I will simply refer to the two offenders as N and C since their names are not pertinent in this article. Both of them were convicted of possessing loaded prohibited firearms.

They were sentenced to three and five year mandatory minimum prison  terms respectively. In N’s case, the trial judge held that the three-year minimum sentence imposed by him did not offend the Canadian Charter of Rights and Freedoms. However, he concluded that the two‑year gap between the one‑year maximum sentence if the Crown (prosecutor) proceeded summarily and the three‑year minimum sentence if the Crown proceeded on indictment offended section  7 of the Charter because it was arbitrary and was not justified under section 1 of the Charter. Nevertheless, the trial judge held that N was not personally affected by the gap, and therefore he dismissed N’s section 7 claim.

Section 1.  The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section 7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In C’s case, the judge also dismissed the section 12 challenge. She held that the five‑year mandatory minimum sentence imposed was not grossly disproportionate for C, in light of the gravity of his crimes. She also held that C had failed to put forward any reasonable hypothetical reasons in which the application of the five‑year mandatory minimum sentence would be grossly disproportionate. 

Section 12.  Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The matter then went to the Ontario Court of Appeal and that court held that the mandatory minimum terms of imprisonment stated in the Criminal Code  resulted in grossly disproportionate sentences in reasonable hypothetical cases at the licensing end of Criminal Code’s spectrum and therefore held that they violated section 12 of the Charter. However, the Court of Appeal also held that the sentences imposed on both N and C were appropriate and should be upheld. That decision resulted in their two appeals ending up in the Supreme Court of Canada.

When a mandatory  minimum  sentencing  provision is challenged under section 12 of the Charter, two questions arise. The first is whether the provision imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular individual before the court. If the answer is no, then the second question is whether the provision’s reasonably foreseeable applications would impose cruel and unusual punishment on offenders. This approach is consistent with the long and settled jurisprudence (previous decisions) of the Canadian Supreme Court relating to Charter reviews generally and to section 12 reviews in particular, in determining if they are workable and if that court has provided sufficient evidence with certainty that they are workable. That being as it is, there would be no reason to overrule this jurisprudence, especially as the effect in doing so would be to diminish he purpose of the Charter protection.

Where mandatory  minimum  sentencing  laws are challenged under section  12 on the basis of their reasonably foreseeable application to others, the question is what situations may reasonably arise, not whether such situations are likely to arise in the general day‑to‑day application of the law. Only situations that are remote or far‑fetched are excluded.

In this case, N and C did not argue that the mandatory minimum terms of imprisonment as per the Criminal Code were grossly disproportionate as they applied to their specific cases. Rather, the Crown argued that those mandatory minimum terms of imprisonment were grossly disproportionate as they apply to other offenders. It was the Crown that appealed and because they had to have respondents to the appeal, N and C were named.

The court in turning first to the law defined in the Code, raised the question as to is whether or not the three‑year minimum term of imprisonment would result in grossly disproportionate  sentences  in reasonably foreseeable cases, the court’s answer to this question was “yes it would.”

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At that far end stands, for example, the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. Given the minimal blameworthiness of this offender and the absence of any harm or real risk of harm flowing from the conduct, a three year sentence would be disproportionate. Similar examples can be envisaged. The bottom line is that s. 95(1) of the Code foreseeably catches licensing offences that involve little or no moral fault and little or no danger to the public.

 For example, I purchased a revolver, a 38 Smith and Wesson Special for target practice in 1954. I registered it with RCMP (federal police) right after I bought it. They didn’t tell me that I had to re-register it every time I moved. In 1962, I was charged with possessing my unregistered handgun. The police accepted my explanation and withdrew the charge however they kept the gun. If I was arrested this year for being in possession of an unregistered handgun, even if I mistakenly didn’t re-register it, I could have been sent to prison for three years even though my being in possession of the gun that was unregistered was because of an honest mistake. Unfortunately, ignorance of the law in Canada is not a valid excuse.  

Of course, firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun‑owners from making mistakes, to be sure. But a three year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in the  Criminal Code and with legitimate expectations in a free and democratic society. As the Court of Appeal concluded, there exists a cavernous disconnect between the severity of the licensing‑type offence and the mandatory minimum three‑year term of imprisonment. Consequently, s. 95(2)(a)(i) of the Code breaches section 12 of the Charter.

As for s. 95(2)(a)(ii) of the Code, there can be little doubt that in many cases where those who commit second or subsequent offences should be sentenced to terms of imprisonment, and some for lengthy terms. The seven‑year term of imprisonment imposed on C is an example. But the five‑year mandatory minimum term of imprisonment could be grossly disproportionate for less serious offenders such as those who is a first offender with respect to possessing an unregistered fire arm. For them, the five‑year term goes far beyond what is necessary in order to protect the public, to express moral condemnation of the offenders and for the purpose of discouraging others from engaging in such conduct. The court ruled that section 95(2)(a)(ii) of the Code violates section 12 of the Charter.

And for good reason. Suppose a first offender got three years and when he is released, he hasn’t been prohibited in possessing a fire arm. A friend of his has a handgun that he intends to register and asks you to hold onto it until he can rent a car so that he can take it to the police for registration. The police stop you as you are walking to the rented car and find you in possession of the gun.  Would it be fair and just that you should go to prison for five years?  I don’t think so and neither does the Supreme Court of Canada.

The court said; “These s. 12 Charter violations are not justified under section 1 of the Charter.  Although the government has not established that mandatory minimum terms of imprisonment act as a deterrent, a rational connection exists between mandatory minimums and the goals of denunciation and retribution. Further, the government has not met the minimal impairment requirement under section 1, as there are less harmful means of achieving its legislative goal. In addition, given the conclusion that the mandatory minimum terms of imprisonment in section 95(2) when the Crown proceeds by indictment are grossly disproportionate, the limits are not a proportionate justification under section 1. It follows that the mandatory minimum terms of imprisonment imposed by s. 95(2) are unconstitutional.

That majority decision (6 to 3) made it unnecessary to consider N and C’s arguments that section 95(2) violates section 7 of the Charter because they didn’t appeal their sentences.

Now not all the nine members of the Supreme Court were in agreement with the majority. Justices Rothstein, Moldaver and Wagner dissented. Their opinions were as follows:

The reasonable hypothetical approach under section 12 of the Charter does not justify striking down section 95(2) of the  Criminal Code. The hypothetical licensing‑type cases relied upon by the majority are not grounded in experience or common sense. First, experience shows that there is not a single licensing‑type case over the entire history of section 95(2) where the imposition of a mandatory minimum could be regarded as grossly disproportionate. Moreover, the parties (lawyers addressing the court) cannot identify a single case where an offender who has committed a licensing‑type offence has been prosecuted by indictment, thus attracting a mandatory minimum. In fact, in the only licensing‑type case raised by the parties, the Crown proceeded summarily.

If that is the case, then in my case, I wouldn’t have got five years and instead I would have got three years.

The three dissenters said, “Second, an application of the reasonable hypothetical approach which assumes that the Crown will elect to proceed by indictment when the fair, just, and appropriate election would be to proceed summarily does not accord with common sense. The Crown election has been purposely integrated into the legislative scheme and is a clear expression of Parliament’s intent to confer on prosecutors the ability to divert the least serious licensing‑type cases into summary proceedings. It is a mistake to shunt this factor aside when crafting reasonable hypotheticals.”

In principle, I agree with that statement but there are crown attorneys who have thwarted the rights of accused persons and the decision of the majority of the Supreme Court will protect accused persons from that kind of mischief by dishonest crown attorneys. For example, years ago when I was practicing law in a criminal court, I watched an assistant crown attorney tell a paralegal who had the right to represent his client in that court that he would charge his client by way of indictment so that the paralegal couldn’t represent his client and the client would them be on his own. The action of that assistant crown attorney was grounds for disbarment. Unfortunately, the paralegal didn’t file a complaint against him. 

The three dissenters also said; “Parliament’s choice to raise the mandatory minimums in section 95 reflects valid and pressing objectives, and it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture. This Court has warned against the use of hypotheticals that are “far‑fetched or only marginally imaginable.” The hypothetical scenario advanced by the majority stretches the bounds of credulity. It is not a sound basis on which to nullify Parliament’s considered response to a serious and complex issue.”

I don’t agree with that part of their reasoning. The courts are also set up to make sure that legislation doesn’t infringe on the rights of a nation’s citizens. As an example, there was a federal law in Canada that prohibited alcohol being sold to Indians. The Supreme Court finally nullified that law. An Ontario court threw out key provisions of Canada's anti-prostitution laws in response to a constitutional challenge by a Toronto dominatrix and two prostitutes in 2009. Back in the 1980s, I represented a man who was fighting a parking ticket in Canada. The ticket offered him a choice. If he paid it right away, the fine wouldn’t increase. However if he asked for a trial and he lost his case, the fine would be increased.  I argued that such a law conflicts with section (i) of the Charter that says that if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, the person convicted is to be given the benefit of the lesser punishment. The city amended their law.

Now you may ask as to why do appeal court increases sentences when the convicted person appeals. There is a simple explanation for that. The convicted criminal beat the Crown in filing his appeal so rather than file a separate appeal for a stronger sentence; they make that request in their response to the appellants appeal.

Now back to the dissenters in the Supreme Court. They said in part;

The majority (of the court) identifies an alternative scheme that, in its view, would accomplish Parliament’s goals without offending section 12  of the Charter. Under this scheme, the impugned mandatory minimums could be enacted as part of a revised offence containing an additional element beyond the existing elements of section 95(1). For example, the offence could be limited to “those engaged in criminal activity” or to “conduct that poses a danger to others.”

I agree with that premise in principle but the objection as stated by the majority who must surely have had it in their minds that not all judges think that way. It only takes one judge to sentence a harmless man to prison for three years over an otherwise law abiding man’s mistaken misunderstanding of the law to show that the existing law was flawed.  

Previously section 95 targeted the simple possession of guns that are frequently used in gang‑related or other criminal activity. Parliament has concentrated on simple possession for a reason, to wit; firearms  and particularly the firearms caught by section 95 are inherently dangerous. Outside of law enforcement, prohibited and restricted firearms are primarily found in the hands of criminals who use them to intimidate, wound, maim, and kill. Given the inherent danger associated with these guns, it was open to Parliament to conclude that their simple possession should attract a significant mandatory custodial sentence.

With the majority decision to excise mandatory minimum sentences does not mean that a judge can’t sentence such criminals to more than three or five years in prison. The fact that C got five years because of the gravity of his crimes doesn’t mean that the judge couldn’t have given him more.

Mandatory minimum sentences of three and five years do not necessarily constitute cruel and unusual punishment. But in some reasonably foreseeable cases, they may do so. It is because of that reason that the majority of the Supreme Court didn’t want to risk having some judges sentencing otherwise law abiding citizens to prison for three to five years because of their simple careless mistakes of not registering their handguns. 

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At that far end stands, for example, the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. Given the minimal blameworthiness of this offender and the absence of any harm or real risk of harm flowing from the conduct, a three year sentence would be disproportionate. Similar examples can be envisaged. The bottom line is that s. 95(1) is foreseeable in catching licensing offences that involve little or no moral fault and little or no danger to the public.

The Supreme Court in its ruling said. “These section 12 Charter violations are not justified under section 1. Although the government has not established that mandatory minimum terms of imprisonment act as a deterrent, a rational connection exists between mandatory minimums and the goals of denunciation and retribution. However, the government has not met the minimal impairment requirement under section 1, as there are less harmful means of achieving its legislative goal. In addition, given the conclusion that the mandatory  minimum terms of imprisonment in section 95(2) when the Crown proceeds by indictment are grossly disproportionate, the limits are not a proportionate justification under section 1. It follows that the mandatory minimum terms of imprisonment imposed by section are unconstitutional.”

The government now has to abolish that part of section 95(2) that conflicts with the Charter. The judges can now decide what the proper sentence should be.