November 25th, 2013
Further to my bulletin posted here, on November 12, 2013, the Court of Appeal for Ontario (ONCA) has struck down the three-year mandatory minimum sentence for possession of prohibited or restricted firearm (with ammunition either loaded or easily accessible; s. 95 of the Criminal Code) in a series of six decisions. The unanimous decisions come nine months after oral arguments were heard by a five-judge panel. The political backlash was immediate, and it seems that the issue of mandatory minimum sentences may be a factor in the next Canadian federal election. Not surprisingly, the cases reflect the constant struggle between the elected Parliament and the non-elected judiciary.
The decisions can be found as follows: R v Nur, 2013 ONCA 677; R v Smickle, 2013 ONCA 678; R v Rocheleau, 2013 ONCA 679; R v Chambers, 2013 ONCA 680; R v Charles, 2013 ONCA 681; and R v Meszaros, 2013 ONCA 682. While a Crown appeal to the Supreme Court of Canada is likely, the decisions provide some guidance for trial courts in the interim. The Constitutionality of mandatory minimum sentences was previously discussed for other provisions at the Ontario Court of Justice level, here.
S. 12 OF THE CHARTER AND A SPECTRUM OFFENCE
The panel held that the three-year mandatory minimum sentence for first-time offenders under s. 95 was unconstitutional, violating s. 12 of the Charter, which protects against cruel and unusual punishment. The six cases turn on different facts, and as such the analysis is subtly different in each. Because s. 95 is a hybrid offence, which means that the Crown may elect to proceed by summary conviction or indictment, the jeopardy of the accused must be considered based on the respective facts. If the Crown elects to proceed by summary conviction, there is no mandatory minimum and a maximum penalty of one year. However, if the Crown elects to proceed by indictment, the mandatory minimum is three years of imprisonment for a first offence (s. 95(2)(a)(i)) and five years for a subsequent offence (s. 95(2)(a)(ii)). It is the 2-4 year gap between the summary maximum penalty and the indictable minimum penalty on which the analysis turned, with the Court noting a “cavernous disconnect” between the potential severity of the offence and a three-year penitentiary sentence (Nur, para 176).
A further issue that the Court grappled with was that the Crown does not necessarily have all of the facts of the case when potentially electing by indictment, which lends further to a constitutional issue with the mandatory minimum sentence for the indictable—but not summary—offence under s. 95. With respect to this issue, the Court held in Nur:
“…while the Crown’s ability to elect may provide a safeguard in those cases where the facts are known from the outset and agreed upon by the parties, the Crown election provides no safeguard in the vast majority of cases where the facts are in dispute or unknown at the time of the election. The Crown elects to proceed by indictment or by way of summary proceedings at an early stage in the prosecution. The election is based on the information available to the Crown at that time” (paras 156-157).
“My holding that the Crown ability to elect to proceed summarily cannot avoid an infringement of s. 12 does not imply that the Crown cannot be relied on to exercise its discretion reasonably. Simply put, except perhaps when the accused pleads guilty, the Crown cannot know the facts on which the accused will be sentenced when the Crown makes its election. Consequently, the election cannot be expected to be responsive to those facts” (para 162).
In the end, one of the determinative reasons for the s. 12 violation to be held unjustified under s. 1 of the Charter was that the s. 95 offence is capable of punishing a spectrum of behaviour (effectively a regulatory-true crime spectrum). While the Court in Nur discussed various hypothetical scenarios, the essence of the judgment is that on the ‘low end’ of the spectrum, the offence is regulatory in nature and it is possible that an individual could be subject to a three-year minimum penalty for a technicality in licensing. An individual on the low end poses no real threat of harm to society, but is still in contravention of s. 95. On the ‘high end’ are true crime offences where a loaded firearm is possessed with the intention to use it to do harm. These are likely the individuals whom Parliament intended to deter when enacting the three-year minimum sentence for s. 95. However, the Court recognized that for individuals on the regulatory end of the spectrum to be subjected to a three-year mandatory penitentiary sentence was unjustifiably cruel and unusual punishment in a free and democratic society. For clarity, the Court indicated that this was not a ‘light on justice’ approach:
“…Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 spectrum. Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation” (Nur, para 206).
JUDICIAL DISCRETION AND FEDERAL POLITICS
These decisions are particularly politically charged, and the concept of mandatory minimum sentences has already become a sticking point for the 42nd Canadian federal election (tentatively scheduled to take place in October 2015). In the course of an informal 140-character Question & Answer session with his Twitter followers, Liberal Party of Canada leader Justin Trudeau, in response to a question of whether he would “reconsider the slew of new mandatory minimum sentences recently rolled out by the [Conservative Party of Canada]”, indicated that he would, as he trusts the judiciary to do their jobs well. The Conservatives and the conservative media quickly jumped on this as an opportunity to paint Trudeau as ‘weak on crime’ and advocating ‘against’ victims of crimes. Without taking an obvious political stance, I would like to point out the faults of this notion. Trudeau’s comment was calling into question the constitutionality of the “new” mandatory minimum sentences, which I presume to mean the updated provisions from Bill C-10, the Safe Streets and Communities Act. Irrespective of this distinction, the use of mandatory minimum sentences is often marketed as a solution to crime problems, which overlooks the efficacy of the role of judges.
As a budding criminal defence advocate, I am constantly asked by my peers and family how I could ever represent murderers or sexual offenders. My response is always the same: that our country and criminal justice system was founded on a respect for human rights. These rights do not end at a right to due process or unlawful search and seizure. The Charter of Rights and Freedoms is a very thorough and complex piece of legislation, and it serves to ensure that new legislation does not violate our human rights. Simply put, it is currently up to the courts to decide whether new legislation withstands constitutional scrutiny. Moreover, defence lawyers, judges, or the Liberal Party are not seeking to free proven serious, violent offenders.
An unfortunate and ever too often perpetuated subtext to a political agenda that is not blatantly ‘tough on crime’ but is in deference to Charter rights is that it is ‘light on crime’. This is a completely false conclusion. When Trudeau advocates for the Federal government to revisit and potentially repeal mandatory minimum sentences (new or old), he is not advocating against victims’ rights, nor is he advocating for rapists and pedophiles. He is advocating for the very Charter that his father helped put into place. He is advocating for our common law system to serve its purpose. This is particularly relevant during a year in which the federal government has faced scrutiny for allegedly subverting the Charter when introducing new bills.
In Nur, while the ONCA rebuked the three-year mandatory minimum sentence as unconstitutional, the Court held (through its discretion) that a three-year sentence was nevertheless appropriate, given the circumstances of the case. This supports Trudeau’s trust in the judiciary. Our judges are trained professionals and try thousands of cases in their careers. There has been no indication that their discretion is insufficient to sentence serious, violent offenders. In the absence of mandatory minimum sentences, the judiciary did not let proven rapists and murders run loose with light sentences. Judges are bright legal scholars and practitioners, but they are not politicians. Rather, they serve the public by ensuring that legislation is not in contravention of the Charter.
Indeed, after deeming the three-year mandatory minimum sentence unconstitutional in Nur, Justice Doherty held that the s. 12 Charter breach could not be saved by s. 1, as:
“No system of criminal justice that would resort to punishments that ‘outrage standards of decency’ in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry. Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system” (para 80).
The ONCA decisions in these cases confirm that Parliament may have overplayed its current ‘tough on crime’ agenda with Bill C-10, as was widely speculated at the time of its enforcement. For the time being, judicial and Crown discretion reign supreme, and deterrence and denunciation will have to be applied in other ways, and Justin will live to tweet another day.[filed: Appeal Watch Charter Criminal Code Criminal Law Human Rights]