Grossly disproportionate, for someone at least

Guns are dangerous weapons. Crime perpetrated with a firearm “poses grave danger to Canadians. [@para 1] It might surprise you to learn, that despite this risk of grave harm identified by the Supreme Court of Canada, today, that very Court struck down the mandatory minimum sentences for the possession of a prohibited or restricted firearm: 2015 SCC 15.

Six Supreme Court judges struck down the mandatory minimum sentences which were imposed for possessing a prohibited or restricted firearm that is either loaded or kept wit readily accessible ammunition. For a first offence the offender would serve 3years; a second offence 5years. The dissenting three judges found that these mandatory minimums did not offend section 12 of the Charter.

The majority of the SCC commenced their analysis from the starting point that “mandatory minimum sentences, by their very nature have the potential to depart from the principle of proportionality in sentencing.” [@para 44] Mandatory minimum sentences they held “function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range.” [@para 44]

An analysis of a punishment under section 12 requires the court to consider first, whether the sentence is grossly disproportionate as applied to the individual offender before the court (the particularized inquiry). Second, the court must consider whether the impugned sentence “may impact on third parties in reasonably foreseeable situations.” [@para 56]

The introduction of the phrase “reasonably foreseeable situations” as a synonym of the term “reasonable hypothetical” is a direct response to the majority’s view that:

the word “hypothetical” has overwhelmed the word “reasonable” in the intervening years, leading to debate on how general or particular a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails to assign a particular concatenation of characteristics to her hypothetical, the analysis is vitiated. With respect, this overcomplicates the matter. [@para 57]

The question that the court must ask, regardless of the terminology is “whether the sentence would be grossly disproportionate in reasonably foreseeable cases.” [@para 57]

In determining what is a reasonably foreseeable circumstance the court can look to reported cases. “Not only is the situation in a reported case reasonably foreseeable, it has happened.”[@para 72] However, the court is not prevented from looking to reasonably foreseeable scenarios not found in reported cases.

In crafting a reasonable hypothetical or in determining whether a particular set of circumstances is reasonably foreseeable the role that the personal characteristics of the offender should play has been widely debated. On one end of the spectrum it has been argued that such “consideration must be generalized to the point where all personal characteristics are excluded”. On the other end, some “assert that any and all characteristics should be included.” [@para 73]

The majority concluded that first, “personal circumstances cannot be entirely excluded.” However, by way of example on what constitutes a personal circumstance the majority offered the following:

For example, as we will see in applying the test to this case, it may be relevant to look at the fact that an offender at the licensing end of the spectrum caught by the mandatory minimum might come into innocent possession of the prohibited or restricted firearm, or be mistaken as to the scope of the prohibition. [@para 74]

This type of example relates to the level or type of intent as opposed to what is traditionally understood as personal characteristics. In other words, the personal circumstances such as age, prior criminal record, socio-economic status, are not what the court is referring to. This distinction is important because it illustrates that only personal circumstances related to the offences are what may be considered.

Moreover, this distinction ties into the second conclusion the court draws on this point:

(…) far-fetched or remotely imaginable examples should be excluded from consideration. This excludes using personal features to construct the most innocent and sympathetic case imaginable — on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality. To repeat, the inquiry must be grounded in common sense and experience. [@para 75]

The two offenders before the Court, Charles and Nur, did not argue that the mandatory minimum terms were grossly disproportionate as applied to them [@para 48].  Charles was arrested at his home with a loaded semi-automatic handgun and ammunition. The gun had an over-capacity magazine and the serial number had been removed. Charles had a serious and lengthy criminal record which included 5 other firearms offences. [@paras 28-29] Charles was thus subject to the 5year mandatory minimum.

Nur was arrested outside a community centre in a high crime area of Toronto. The centre had been locked down as a result of concerns about the presence of some threatening looking individuals outside. When police arrived Nur ran and threw something to the ground. Police caught Nur and retrieved the discarded item which turned out to be a loaded handgun with an oversized ammunition clip. [@para 18] Nur as a first offender was subject to the 3year mandatory minimum.

The reasonably foreseeable circumstances prevailed. The Court held that it was entirely possible for an individual who had breached a firearm prohibition order imposed while on bail and who, some years later, innocently came into possession of a restricted or prohibited firearm without an authorization or a license together with usable ammunition that he stored nearby and which was readily accessible.” [@para 103]

On this basis the Court concluded that:

A five-year minimum term of imprisonment for offenders such as these would be draconian. It goes far beyond what is necessary in order to protect the public, far beyond what is necessary to express moral condemnation of the offender, and far beyond what is necessary to discourage others from engaging in such conduct. In a phrase, such a sentence would be grossly disproportionate. An offender in these circumstances has not caused any harm, nor is there a real risk of harm to the public. Such an offender is not engaged in any criminal activity. [@para 104]

Similarly a first time offender “who has a valid licence for an unloaded restricted firearm at one residence, safely stores it with ammunition in another residence, e.g. at her cottage rather than her dwelling house” would face a 3year sentence [@para 79]. The majority found that

[g]iven the minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm flowing from the conduct (i.e. having the gun in one residence as opposed to another), a three-year sentence would be grossly disproportionate. [@para 83]

Having found a breach of section 12 the majority then conducted an analysis under section 1 of the Charter to determine whether the breach was justifiable in our free and democratic society. They concluded that it was not.

Notwithstanding the finding that the section 95 mandatory minimum sentences are of no force and effect the majority reminded us that:

It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. [@para 120]