This week, in the matter of Regina v. Nur, the Canadian Supreme Court ruled as unconstitutional a statute that required mandatory minimum sentences for firearms possession crimes. The law, Section 95 of the Canadian Criminal Code, was passed in 2008, reports Jurist. According to CBC News, the act was part of a ‘tough on crime’ package backed by Prime Minister Stephen Harper’s Conservative government . . .
The law required that individuals convicted of possession of a prohibited or restricted firearm with ammunition would be subjected to a minimum sentence of three years in prison for the first offense, and five years for subsequent offenses.
Canada’s Chief Justice Beverley McLachlin, the author of the opinion, allowed that in many cases, the punishment would be appropriate for a firearms crime, but that in some “reasonably foreseeable cases,” the application of the law would be cruel and unusual. She even offered up some examples of the sort of unintentional infractions that would require a three year sentence under the statute:
A person inherits a firearm and before she can apprise herself of the licence requirements commits an offence. A spouse finds herself in possession of her husband’s firearm and breaches the regulation. We need not focus on a particular hypothetical. The bottom line is that s. 95(1) foreseeably catches licensing offences which involve little or no moral fault and little or no danger to the public. For these offences three years’ imprisonment is grossly disproportionate to a fit and fair sentence. Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun owners from making mistakes, to be sure. But a three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in the s. 718 of the Criminal Code and legitimate expectations in a free and democratic society. As the Court of Appeal concluded, there exists a “cavernous disconnect” between the severity of the licensing-type offence and the mandatory minimum three‑year term of imprisonment (para. 176). Consequently, I conclude that s. 95(2) (a)(i) breaches s. 12 of the [Canadian] Charter [of Rights and Freedoms].
Ms. McLachlin wasn’t finished yet, though. “The government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes…. Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes.”
The opinion also provides some context for the case. The defendant, Hussein Nur, was charged with carrying a “22-calibre semi-automatic with an oversized ammunition clip [sic]” in a neighborhood that “had very high levels of crime” and in which “[g]un violence was a serious problem.” The gun is a “prohibited firearm” under Canadian law. Although he was part of a group of men who scattered when police approached, “Nur was not found to be involved with…threatening behavior, and it was not clear when, or for how long, Nur came to possess the loaded handgun.”
Although I hesitate to offer an opinion on matters of Canadian politics and law, I’ve generally had a good impression of Mr. Harper. He has perhaps been one of the most firearms-friendly Prime Ministers that Ottawa has seen in quite a good many years, and anyone who can tick off Life of Pi author Yann Martel by simply doing nothing is okay in my book.
Still, I’m glad that the Canadian Supreme Court ruled as it did. Mandatory minimums, particularly for mere possession crimes, are a shortcut for lazy politicians; a way to claim that they’re “doing something” about crime, when in fact all they’re doing is guaranteeing a life-shattering prison sentence for innocent people who unintentionally cross the wrong boundary line possessing the wrong piece of equipment with no ill intent. To make it worse, the politicians backing mandatory minimums for mere possession of a prohibited item tend toward the conservative end of the spectrum — people like Harper in Canada, or Reagan in the United States.
Finally, this isn’t the only firearms-related decision from the Canadian Court in recent weeks. In March, the Court rebuffed an attempt by the provice of Quebec to gain access to whatever data remained in the now-defunct Long Gun registry so that the province could start its own registry.
Stand on guard, O Canada!
(Hat tip: John A.)
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice on this subject, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.
(Hat tip: John A.)