The case turned not on the circumstances of the men accused in the two cases – neither even argued those minimum terms were unfair to them – but on “reasonable hypothetical” cases. From the earliest years of the Charter of Rights and Freedoms, the Supreme Court has said it is the nature of the law that matters, not simply the individual case. And so the court’s majority created hypothetical cases in which otherwise law-abiding gun owners stored their licensed guns in the wrong dwelling, or a spouse finds herself with her husband’s gun, in breach of the rules.
The minimum sentences would be grossly disproportionate in such circumstances, the majority said in a 6-3 ruling.
“Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing,” Chief Justice Beverley McLachlin wrote for the majority. “They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range.”
The Tories have passed dozens of minimum sentences for guns, drugs, sex offences and fraud, and some of these sentences could be vulnerable to challenge using the logic of the “reasonable hypothetical” case, legal observers said.
“I think that the Harper government’s rough handling of criminal-justice policy is at risk under the Charter. The decision this morning confirms that,” Osgoode Hall law professor Jamie Cameron said.
The government had little publicly to say about the ruling Tuesday morning. Justice Minister Peter MacKay issued a statement saying that the government is “reviewing today’s Supreme Court of Canada decision to determine its impacts and the most appropriate next steps towards protecting Canadians from gun crime and ensuring that our laws remain responsive. Our government will continue to be tough on those who commit serious crimes and endanger our communities.”
The ruling revealed a deep split on the court over judicial activism and criminal procedure. In a section called “Respecting Parliament,” the minority wrote: “Gun crime is a matter of grave and growing public concern. … This is the context in which Parliament’s choice to raise the mandatory minimums … must be understood. That choice 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.”
Justice Michael Moldaver, a former Toronto defence lawyer considered the court’s leading conservative on crime, wrote for the minority, joined by Justice Marshall Rothstein and Justice Richard Wagner.
The minority also said the discretion of prosecutors saves the law from being unfair; prosecutors can choose summary proceedings, a less serious approach that carries a mandatory sentence of just one year for the same crime. The minority said no reported cases since a Liberal government first passed a somewhat softer mandatory minimum sentence for illegal gun possession in 1995 have involved situations like the hypothetical ones envisioned by the majority. It said using such a hypothetical case is not grounded in commonsense or experience.
Chief Justice McLachlin said that the minority’s approach would put too much power in the hands of prosecutors, and could lead to wrongful convictions.
“I add this about my colleague’s proposed framework. The protection it offers against grossly disproportionate punishment is illusory: in practice it would create a situation where the exercise of the prosecutor’s discretion is effectively immune from meaningful review.”
She went on to say, for the majority, that “bad law, fixed up on a case-by-case basis by prosecutors, does not accord with the role and responsibility of Parliament to enact constitutional laws for the people of Canada.
Sentencing, she said, “is inherently a judicial function.”
In one case before the court, Hussein Nur tossed away a semi-automatic gun as police approached a youth centre in Toronto. The gun could fire all 24 of its bullets in 3½ seconds.
A trial judge said a 40-month sentence was reasonable for Mr. Nur, and the Ontario Court of Appeal said anywhere from two years less a day in provincial reformatory to three years in federal prison was reasonable. But in a 5-0 decision, the appeal court struck down the law as cruel and unusual punishment, using a similar “reasonable hypothetical” argument to the one later used by the Supreme Court.
In a second case, Sidney Charles, who had a long criminal record, including previous weapons offences, was sentenced to seven years for illegal possession.
The Supreme Court was unanimous in saying both sentences stood, even though the mandatory minimum has now been struck from the Criminal Code.
The government has not fared well on criminal-law cases in the past year and a half:
The Supreme Court unanimously struck down prostitution laws and a ban on assisted suicide.
The court was unanimous in softening the impact of the Truth in Sentencing Act, a centrepiece of the government’s crime agenda, by insisting that thousands of offenders detained before their trial have recourse to generous extra credit for the time they served.
It unanimously struck down a law that toughened parole rules retroactively for white-collar criminals.
Original Article
Source: theglobeandmail.com/
Author: SEAN FINE
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