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.)
“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.” — Canadian Supreme Court
Wow. If only our courts could apply such common decency.
Beat me to it.
“Wow. If only our courts could apply such common decency.”
If we get a positive change in administrations next election cycle, that sounds like something worthwhile in perusing.
Along with tweaking the ‘1986 Firearm Owners Protection Act’ so that the intent of the law is followed.
POTG need to be left the hell alone when legally transporting guns interstate.
Canadian courts are generally much more sensible. You may not like the overall framework they operate in (“peace, order and good government” as opposed to “life, liberty and pursuit of happiness”), but their application of those principles is more consistent and more conductive to a sane society.
Careful with your praise.
Yes, the Canadian SC got one one right for calling ‘Stupid!’ in regards to a 3-5 sentence for a licensing violation. And stopped clocks are right twice per day. /cliche
Bottom line: Canada is no friend of freedom when it comes to self defense or freedom of speech. And their courts routinely affirm their statist laws restricting those freedoms.
I know this is old but had to chime in about that whole “peace, order, and good government” phrase in that it sounds like something Adolf Hitler, Benito Mussolini, Josef Stalin, Francisco Franco, Mao Tse-Tung, the Kim’s, and countless other dictators/murderous regimes throughout history supported as well making it scary indeed.
Too bad a Canadian decision isn’t even considered mildly persuasive in NJ.
Well, I may have to stop telling people who don’t like the USA to “move to Canada”.
Why would you even suggest that in the first place?! Canada may have its faults, but I wouldn’t send such wretched people to them
We are just starting to reclaim our firearms freedoms from decades of Libs mismanagement and malice. We don’t want those Freedom hating wretches up here. Contrary to your progressives’ belief, Canada is not the gun free utopia they imagine it to be. Yes we do have handguns, and no asinine “Assault Weapons” bans. You can also carry a rifle/SBS pretty much anywhere you can legally discharge it (the law is that you must have “good cause”* which amounts to “Predators, officer” and is perfectly valid).We also do have CC/OC up here, however there are only around 1k permits that have been issued in the entire country, not including security guards and hunters/trappers/wilderness workers where a rifle is “not conducive/too unwieldy” while performing their duties.
Lots of people in Canada have guns, we just don’t talk about it. For us they are looked at as tools. There are a group or two of crying, emotional, bloody shirt waving moms up here, but it is not a nationally divisive issue. Luckily our version of the NRA is finally waking up and gearing up to take them on; so as long as Harper gets back in, we have some good things coming our way.
*when not hunting
(an interesting note? some estimates put the noncompliance rate with the Long gun registry at 65-90%)
It wasn’t just possession that was mandatory minimum of 3 years. It was /any/ gun related “crime” that was proceeded by indictment. This included paperwork violations and “safe storage” violations.
These safe storage violations are a crock. They need to get rid of them all. If the Canadians have any brains at all they will work hard to get their government out of their homes. Safe storage should be encouraged. Especially if young children are around. But it is up to the family unit to control that, not the government. Government control of anything like that is the beginning of a very slippery slope that leads to the death of freedom.
“These safe storage violations are a crock. They need to get rid of them all.”
At least the ‘Heller v DC’ decision struck down DC’s onerous storage requirements as unconstitutional…
“2818). Similarly, the requirement that firearms in the home be rendered and kept inoperable at all times was unconstitutional because it made it impossible for citizens to use them for the core lawful purpose of self-defense (Id., at 2818).”
But see Jackson v. San Francisco, where the Ninth Circuit upheld a SF ordinance that requires guns to be unloaded and securely locked up when not in one’s immediate possession. And by immediate, it means on one’s person. How this complies with Heller I will never understand.
And you’re far more up on how that is ‘supposed’ to work out there.
*sigh* A bit depressing, I admit…
The NFA is trying to get that law changed, they ( the NFA) are also trying to press for a common sense storage law, as well as having it so that if we have a rifle that normally comes with a 30 round magazine, we will be able to fill that magazine and have fun at the range, instead of the 5 round limit we are currently burdened with.
We would still have a limit on the amount of ammunition allowed in a Semi-automatic rifle when out hunting, but for the bolt action rifles, we are allowed 10 rounds if there is a magazine for said bolt action that will hold 10 rounds but there is a provision in place already, it is called a field protection firearm, this being a pump action shotgun, that we are allowed to have a high capacity magazine in. this is for guarding against bears that are drawn to the sound of a rifle shot, and know that there is a meal to be had . there have been several bear attack in the past few years where a hunter or hunters have been either severely injured or kill due to this
As a Canadian & a gun owner, this ruling was a bit of a breath of fresh air. I have concentrated my interests (& ownership) to long arms for more than 20 years, not because I dislike handguns; quite the contrary. I found that ownership of them, much less actually USING them, had become so onerous that much of the “enjoyment” factor was mired in concern that each time I set out for the range could result in serious legal issues should I do something as foolish as stopping for gas along the way.
We have some of the most convoluted, nonsensical firearms laws in Canada that it’s become increasingly difficult to keep up with the latest and greatest from Ottawa. Needless to say, having the Supreme Court take even a relatively small step such as this towards “normalizing” these laws is refreshing. Now, if we could only get our elected officials to actually re-examine the Firearms legislation in it’s entirety and conduct a wholesale revamping of them, there would be millions of very happy, responsible, law-abiding gun owners all across the country.
Don’t get me wrong; this IS a victory. In the grand scheme of things, though…we have an enormously long way to go…
Guess they must be using our Bill of Rights. No problem since we’re not using it.
Now if only we can get New Jersey to do that.
The fact that “possession of a shaped piece of metal + wood and/or plastic without permission from the overlords” is deemed a crime is, itself, a crime.