Supreme Court strikes down mandatory-minimum sentencing for firearms offences
A key component of the Conservative government’s tough-on-crime agenda was struck down as unconstitutional Tuesday by the Supreme Court of Canada.
The government’s mandatory-minimum sentencing regime for serious firearms offences, introduced in 2008 as part of the controversial Tackling Violent Crime Act, was found to be cruel and unusual punishment.
The court found the law “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) foreseeably catches licensing offences that involve little or no moral fault and little or no danger to the public.”
The judgment stems from the appeals of lower court ruling in two separate gun crime cases. The primary case was that of Hussein Nur, 19, arrested by Toronto police in 2009 after dropping a loaded prohibited handgun as he fled from police at a community centre. The gun was a fully operable 22-calibre semi-automatic, equipped with 23 bullets in an oversized ammunition clip and one in the chamber.
The gun could fire all 24 rounds in 3.5 seconds. Nur, had no gun licence, pleaded guilty and was sentenced to three years and four months in a federal penitentiary.
The second case involved Sidney Charles, who was arrested in 2008 at a Toronto rooming house after police found a prohibited, semi-automatic loaded handgun and ammunition in his bedroom. Charles, who had several previous weapons-related convictions, pleaded guilty.
In the Nur case, the trial judge dismissed claims by his defence lawyers that a new sentencing regime violated the Charter protection against cruel and unusual punishment. He did, however, voice constitutional concerns over how the would applied in other cases.
On appeal, the Ontario Court of Appeal found the three-year mandatory minimum sentence was not grossly disproportionate in Nur’s case. However, the 2008 law increased the minimum sentence for gun some gun-related crimes, including possession of a loaded firearm, from one year to three years for a first offence, and from one year to five years for a second. It also imposed a five-year minimum sentence on those previously convicted of serious, weapons-related crimes.
Since firearm possession is a hybrid offence, the Crown can decide to prosecute the charge in two ways: summarily or by indictment.
Proceeding summarily, the safeguard option for minor cases, means a maximum sentence of one year. Proceeding by indictment holds a mandatory minimum of three years, up from one year prior to 2008.
Supreme Court strikes down mandatory-minimum sentencing for firearms offences | Ottawa Citizen
A key component of the Conservative government’s tough-on-crime agenda was struck down as unconstitutional Tuesday by the Supreme Court of Canada.
The government’s mandatory-minimum sentencing regime for serious firearms offences, introduced in 2008 as part of the controversial Tackling Violent Crime Act, was found to be cruel and unusual punishment.
The court found the law “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) foreseeably catches licensing offences that involve little or no moral fault and little or no danger to the public.”
The judgment stems from the appeals of lower court ruling in two separate gun crime cases. The primary case was that of Hussein Nur, 19, arrested by Toronto police in 2009 after dropping a loaded prohibited handgun as he fled from police at a community centre. The gun was a fully operable 22-calibre semi-automatic, equipped with 23 bullets in an oversized ammunition clip and one in the chamber.
The gun could fire all 24 rounds in 3.5 seconds. Nur, had no gun licence, pleaded guilty and was sentenced to three years and four months in a federal penitentiary.
The second case involved Sidney Charles, who was arrested in 2008 at a Toronto rooming house after police found a prohibited, semi-automatic loaded handgun and ammunition in his bedroom. Charles, who had several previous weapons-related convictions, pleaded guilty.
In the Nur case, the trial judge dismissed claims by his defence lawyers that a new sentencing regime violated the Charter protection against cruel and unusual punishment. He did, however, voice constitutional concerns over how the would applied in other cases.
On appeal, the Ontario Court of Appeal found the three-year mandatory minimum sentence was not grossly disproportionate in Nur’s case. However, the 2008 law increased the minimum sentence for gun some gun-related crimes, including possession of a loaded firearm, from one year to three years for a first offence, and from one year to five years for a second. It also imposed a five-year minimum sentence on those previously convicted of serious, weapons-related crimes.
Since firearm possession is a hybrid offence, the Crown can decide to prosecute the charge in two ways: summarily or by indictment.
Proceeding summarily, the safeguard option for minor cases, means a maximum sentence of one year. Proceeding by indictment holds a mandatory minimum of three years, up from one year prior to 2008.
Supreme Court strikes down mandatory-minimum sentencing for firearms offences | Ottawa Citizen
