Live from the SCC: The Unconstitutionality of Section 95 in R v Nur and R v Charles

On November 7, 2014, the Supreme Court of Canada (“SCC”) heard oral arguments for the case Her Majesty the Queen, et al v Hussein Jama Nur, et al [Nur] and Her Majesty the Queen, et al v Sidney Charles, et al [Charles] regarding the constitutionality of the section 95 Criminal Code, RSC 1985, c C-46 [Criminal Code] provision (possession of prohibited or restricted firearms with ammunition). Nur addresses the three-year mandatory minimum for first time offenders and Charles, the five-year mandatory minimum for second or subsequent offences. The plaintiffs argue that the three-year and five-year mandatory minimums impose a punishment that is grossly disproportionate to the offence, contrary to section 12 of the Charter.

R v Nur and R v Charles

In R v Nur, 2011 ONSC 4874 [Nur, ONSC], the trial judge concluded that the three-year mandatory minimum did not violate either sections 12 or 15 of the Charter. While the trial judge did find that section 95 of the Criminal Code, in creating a two-year gap between the minimum penalty if the Crown were to proceed by indictment and the maximum penalty if the Crown were to proceed summarily, did in fact infringe section 7 of the Charter, the accused did not have standing to bring forward a section 7 Charter claim.

On appeal, the Ontario Court of Appeal (R v Nur, 2013 ONCA 677 [Nur, ONCA]) unanimously disagreed with the trial judge and concluded that the three-year minimum sentence infringed Mr. Nur’s section 12 Charter rights and could not be saved by section 1. As such, Doherty J declared the minimum three-year sentence required by section 95(2)(a) of the Criminal Code to be of no force or effect.

Similarly to Nur, ONCA, the Ontario Court of Appeal in R v Charles, 2013 ONCA 681 [Charles, ONCA], unanimously concluded that,

like the mandatory minimum penalty of three years’ imprisonment provided for under s. 95(2)(a)(i) upon first conviction for a s. 95(1) offence, the five-year mandatory minimum sentence imposed by s. 95(2)(a)(ii) upon conviction for a s. 95(1) offence that constitutes a second or subsequent offence amounts to cruel and unusual punishment that cannot be salvaged by s. 1 of the Charter (Charles, ONCA, para 10).

Reasonable Hypotheticals

The primary issue on this appeal was whether or not Doherty J erred in his creation of a reasonable hypothetical (see Nur, ONCA, para 150). The Attorney General of Canada argued that the Court of Appeal mistakenly concluded the offence under section 95 captures a broader range of conduct then it actually does, and as such, the hypothetical posed by Doherty J was unreasonable. Counsel for Her Majesty the Queen put forward the argument that the reasonable hypothetical test must be reconsidered. Taking an opposing view, counsel for the respondent (Mr. Derstine for Mr. Nur and Mr. Rippell for Mr. Charles) contended that the hypothetical was neither inappropriate nor far-fetched.

During each counsels’ submissions, the SCC justices posed a variation of the same question: “What is the point of addressing the issue of the reasonable hypothetical? What are we gaining by implementing a reasonable hypothetical? Why not just wait for the actual case to arise where we feel the facts of the case are strong enough to avoid using a reasonable hypothetical, and then strike down the mandatory minimum?”

Here, counsel for the appellants as well as Mr. Rippell struggled in producing answers that the bench was satisfied with. It appears that the answer that the bench is looking for, counsel for the appellants is unwilling to admit. In my view, Mr. Derstine was the only person who was able to directly answer this question. Mr. Derstine submitted that constitutional litigation is no longer about one person and that one person’s facts; it applies to many other people. This is the reason why the reasonable hypothetical is appropriate because it allows us to determine who else would be effected by the unconstitutionality of a particular provision.

Mandatory Minimums

Another pinnacle moment of this hearing occurred when the bench asked counsel for the appellants the following question: since mandatory minimums are a policy choice, should we not then be asking whether or not mandatory minimums are unconstitutional altogether? According to the SCC, mandatory minimums knock out one end of the sentencing range. As a result, how helpful is a range in policy if you then say that in every case similar to the case at hand, there should then be a mandatory minimum. In response, counsel declared that mandatory minimums are still effective as a punishment, and deference should be given to Parliament to achieve legitimate penological objectives.

On the same topic of mandatory minimums, Moldaver J posed to Mr. Derstine the questions of what the point was of the former government implementing the mandatory minimum and would the previous mandatory minimum be unconstitutional. Counsel responded that the purpose was to send out a deterrent message to people; to denies and deter unlawful conduct. Additionally, the former regime would have also been unconstitutional. However, the reason for why there were not other constitutional claims made when the mandatory minimum was one year was because, s counsel stated, it was too short a time for a constitutional matter to be brought up before the year sentence would be over and the matter would be moot.

Licensed Guns

During the submissions of counsel for the appellants regarding conduct that is covered under section 95 of the Criminal Code, Abella J, as a point of clarification, asked whether or not a person who is not authorized to have the licensed gun in their possession or in a particular place and who did not intend to use it for gang-related incidents could be convicted under section 95. Counsel contended that there is an inherent risk that this person would be convicted under section 95. However, counsel also noted that this hypothetical would not be reasonable.

Grossly Disproportionate

The final significant point of discussion during the hearing was the issue of gross disproportionality. Counsel for the appellants contended that the mandatory minimum outlined in section 95 was not grossly disproportionate to the offence. Counsel for the respondents disagreed. The bench directed the question of how the preventative purpose of section 95 fits into the test for gross disproportionality to Mr. Derstine. In response, Mr. Derstine stated that although the purpose of section 95 is to counter and conquer the score of guns that are used for illegal purposes, the provision also includes people who possess licensed guns but who are not themselves authorized to possess the gun or people who are not acing in a criminal fashion. As such, the punishment imposed by section 95 is grossly disproportionate to the offence.

Mr. Derstine continued his explanation by outlining a rather reasonable analogy: if someone picks up an unloaded gun that they found in a box, there are bullets next to the gun, but there is no risk to anyone, and they take a “selfie” with it, that person could still get 3 years. This comment generated some laugher in the audience, and the bench appeared to be satisfied with Mr. Derstine’s explanation.


Overall, one of the most basic but profound statements made by the SCC justices in the course of this hearing was McLachlin CJC’s following statement: “If we rule today that the majority of mandatory minimum cases regarding the possession of firearms are constitutional, then we leave ourselves open to the possibility that a truly unconstitutional matter regarding section 95 may come before a trial judge and the trial judge is unable to hear the case since we have already reached the conclusion that the mandatory minimum is constitutional.” With this statement in mind, along with the equal questioning of counsel by the bench, it is difficult to predict exactly how the SCC justices will rule. As expected, like so many other monumental constitutional cases, the decision will be taken under reserve.

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