The Ontario Court of Appeal is soon to release a significant decision on the constitutional validity of the mandatory minimum set out in section 95 (3 years). In the meantime, trial courts continue to have drastically divergent views on the appropriate sentence for this offence. While that is, in part, undoubtedly a function of the different circumstances of the offenders and offences, it may also be seen as evidence of why a mandatory minimum was and continues to be necessary.
Vader is an example at one end of the spectrum; in that case the court imposed a 5.5 year sentence where the offender was caught driving around with an "arsenal" of weapons - a sentence which is hard to criticize: 2013 ONSC 109. On the other end of the spectrum, Laponsee is a curious case where the court imposed a 12-month conditional sentence where the offender had brought a firearm and ammunition to the airport - a sentence which is somewhat easier to criticize.
Richard Vader was convicted of numerous firearm and ammunition offences. The firearms and ammunition were discovered after a seemingly innocuous traffic stop for a burnt out headlight. At his trial Vader conceded that he was in fact in possession of the firearms and ammo when he was prohibited from doing so. The only issues at trial was whether Vader’s statements to police were admissible and whether the arsenal guns and ammo should be excluded from evidence due to alleged breaches of Vader’s Charter rights: 2012 ONSC 5418.
Lauwers J concluded that both the statements and the weaponry were admissible. These rulings were the subject of an earlier blog: Justice may be blind, but you don’t need to wear blinders.
The offences Vader was convicted of included:
a) One count of possession of prohibited or restricted firearm, contrary to s. 95 of the Criminal Code, R.S.C. 1985, c. C-46;
b) Five counts of possession of firearms obtained by crime, contrary to s. 96;
c) Sixteen counts of possession of a firearm while prohibited (8 guns x 2 prohibition Orders), contrary to s. 117.01;
d) Twelve counts of possession of ammunition while prohibited, contrary to s. 117.01;
e) One count of occupation of a motor vehicle knowing of the presence of firearms, contrary to s. 94;
f) One count of careless storage of firearms, contrary to s. 86; and g) Eight counts of possession firearms knowing that possession was unauthorized, contrary to s. 92.
Following the preparation of a pre-sentence report Lauwers J set about determining the appropriate sentence for Vader’s crimes. Section 95 of the Code prescribes a mandatory minimum sentence of three years for the offence of possessing prohibited or restricted firearms. Section 96 prescribes a mandatory minimum sentence of one year for the offence of possessing firearms obtained by crime. At the time of sentencing Vader had been in custody for 16 months and 18 days. The Crown sought a sentence of a further six years incarceration. The defence argued a global sentence of three and a half years with credit for the pre-trial custody.
After highlighting some of the mitigating and aggravating features of the offence and the offender Lauwers J made the following comments about the gravity of the offences perpetrated by Vader:
At para. 78 of the reasons for decision relating to Mr. Vader's conviction, I observed that "the scourge that gun crimes represent in our communities is well documented." I need not repeat the judicial references.
The seriousness of Mr. Vader's offences must be emphasized. He was driving around the community with a virtual arsenal of unsecured guns in his truck, quite apart from the prohibited loaded pistol he had at his apartment [emphasis added]; [paras 23-24].
Lauwers J then referred to the relevant sentencing objectives as they applied to Vader’s circumstances:
The sentencing objectives of denunciation and general deterrence weigh heavily, but so does the principle of specific deterrence, since Mr. Vader was obviously completely unimpressed by the imposition of two separate weapons prohibitions on him. Although he expressed remorse to the court, I do not see that he has truly learned his lesson. At the trial, the evidence of Officer Roughley was that Mr. Vader told him he had the guns because he needed protection and felt threatened. That is not what he told the probation and parole officer who prepared the pre-sentence report; to explain the guns he told her that he was interested in "target practice". This shift shows that Mr. Vader continues to minimize the seriousness of his criminal activities to others and probably to himself. The time has come to wake Mr. Vader up with a sharp message that his criminal activities are intolerable in this community and that he needs to take the fork in the road that leads away from life as a criminal [para 25].
Lauwers J concluded that:
Vader should receive consecutive sentences of 3.5 years, 1.5 years and six months for a global sentence of 5.5 years. Bearing in mind the principle of totality, this sentence seems to me to be an appropriate and fit sentence for the serious offences committed by Mr. Vader. He is entitled to 16 months and 18 days credit for pre-sentence custody [para 28].
Vader was sentenced following the decision in Smickle where Molloy J of the Ontario Superior Court of Justice found that the mandatory minimum sentence prescribed by section 95 of the Code was unconstitutional. In that case Molloy J found that the appropriate disposition for Smickle was a conditional sentence and therefore the codified mandatory minimum sentence offended sections 12 and 7 of the Charter.
Lauwers J found that in light of the fact that the sentence imposed against Vader “exceeds the mandatory minimums prescribed by the Criminal Code, there is no need for me to rule on the issue raised by the defence on the applicability and binding nature, if any, of the decision of Molloy J. in R. v. Smickle,  O.J. No. 612 at paras. 77-78” [para 29].
Turning to Laponsee, with respect, regardless of whether the minimum was constitutionally valid, it is hard to imagine how a conditional sentence is a fit one in these circumstances. Jonathan Laponsee brought a firearm and ammunition to an airport. He made efforts to conceal the firearm from detection. These were deliberate and dangerous acts. Owning and possessing a firearm is a privilege. Significant responsibilities come with that privilege. This type of dangerous behaviour which puts the lives of people at risk and shows reckless disregard for the security of a firearm warrants a significant and clear message of denunciation and deterrence. That cannot possibly be met, with respect, by the imposition of a conditional sentence.
Parliament was undoubtedly concerned about the nature and volume of violent gun crime in Canada when they imposed the three-year mandatory minimum sentence in section 95. The Ontario Court of Appeal is about to weigh in on the constitutional validity of that decision. Regardless of the outcome, it seems clear Parliament was right about one thing, it seems clear that a mandatory minimum of some length is necessary to ensure sentences such as the one in Laponsee are not imposed in the future.