R. v. Nur

R. v. Nur
Collection
Supreme Court Judgments
Date
2015-04-14
Neutral citation
2015 SCC 15
Report
[2015] 1 SCR 773
Case number
35678, 35684
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 35678, 35684
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773
Date: 20150414
Docket: 35678, 35684
Between:
Her Majesty The Queen
Appellant
and
Hussein Jama Nur
Respondent
And Between:
Attorney General of Canada
Appellant
and
Hussein Jama Nur
Respondent
- and -
Attorney General of Quebec, Attorney General of British Columbia,
Attorney General of Alberta, Pivot Legal Society, John Howard Society of Canada, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Advocates’ Society, Canadian Bar Association, Canada’s National Firearms Association, Canadian Association for Community Living and African Canadian Legal Clinic
Interveners
And Between:
Her Majesty The Queen
Appellant
and
Sidney Charles
Respondent
And Between:
Attorney General of Canada
Appellant
and
Sidney Charles
Respondent
- and -
Attorney General of Quebec, Attorney General of British Columbia,
Attorney General of Alberta, Pivot Legal Society, Canadian Civil
Liberties Association, British Columbia Civil Liberties Association and
Canadian Association for Community Living
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Reasons for Judgment:
(paras. 1 to 120)
Dissenting Reasons:
(paras. 121 to 199)
McLachlin C.J. (LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ. concurring)
Moldaver J. (Rothstein and Wagner JJ. concurring)
R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773
Her Majesty The Queen Appellant
v.
Hussein Jama Nur Respondent
- and -
Attorney General of Canada Appellant
v.
Hussein Jama Nur Respondent
and
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Alberta,
Pivot Legal Society,
John Howard Society of Canada,
Canadian Civil Liberties Association,
British Columbia Civil Liberties Association,
Advocates’ Society,
Canadian Bar Association,
Canada’s National Firearms Association,
Canadian Association for Community Living and
African Canadian Legal Clinic Interveners
- and -
Her Majesty The Queen Appellant
v.
Sidney Charles Respondent
- and -
Attorney General of Canada Appellant
v.
Sidney Charles Respondent
and
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Alberta,
Pivot Legal Society,
Canadian Civil Liberties Association,
British Columbia Civil Liberties Association and
Canadian Association for Community Living Interveners
Indexed as: R. v. Nur
2015 SCC 15
File Nos.: 35678, 35684.
2014: November 7; 2015: April 14.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Sentencing — Mandatory minimum sentence — Firearms — Accused convicted of possessing loaded prohibited firearms — Accused sentenced to terms longer than mandatory minimum terms of imprisonment provided for in s. 95(2) of Criminal Code — Whether mandatory minimum imprisonment terms result in cruel and unusual punishment on accused — If not, whether s. 95(2) ’s reasonably foreseeable applications would impose cruel and unusual punishment on other offenders — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 95 .
N and C were convicted of possessing loaded prohibited firearms contrary to s. 95(1) of the Criminal Code . They were sentenced under s. 95(2) (a)(i) and (ii) which provided for three and five year mandatory minimum imprisonment terms, to 40 months and 7 years imprisonment respectively. In N’s case, the trial judge held that the three-year minimum sentence imposed by s. 95(2) (a)(i) did not offend either s. 12 or s. 15 of the Charter . However, he concluded that the two-year gap between the one-year maximum sentence if the Crown proceeded summarily and the three-year minimum sentence if the Crown proceeded on indictment offended s. 7 because it was arbitrary and was not justified under s. 1 . Nevertheless, the trial judge held that N was not personally affected by the gap, and therefore dismissed the s. 7 claim.
In C’s case, the judge also dismissed the s. 12 challenge. She held that the five-year mandatory minimum sentence imposed by s. 95(2) (a)(ii) was not grossly disproportionate for C, in light of the gravity of his crimes. She also held that C had failed to put forward any reasonable hypothetical cases in which the application of the five-year mandatory minimum sentence would be grossly disproportionate.
The Court of Appeal held that the mandatory minimum terms of imprisonment in s. 95(2) (a) resulted in grossly disproportionate sentences in reasonable hypothetical cases at the licensing end of the s. 95 spectrum, and therefore held that they violate s. 12 of the Charter . However, the Court of Appeal held that the sentences imposed on N and C were appropriate and should be upheld.
Held (Rothstein, Moldaver and Wagner JJ. dissenting): The appeals should be dismissed.
Per McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ.: The mandatory minimum sentences imposed by s. 95(2) (a)(i) and (ii) of the Criminal Code violate s. 12 of the Charter and are null and void under s. 52 of the Constitution Act, 1982 . However, N and C’s sentences were appropriate and are upheld. In most cases, including those of N and C, the mandatory minimum sentences of three and five years do not constitute cruel and unusual punishment. But in some reasonably foreseeable cases, they may do so.
When a mandatory minimum sentencing provision is challenged under s. 12 , two questions arise. The first is whether the provision imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications would impose cruel and unusual punishment on other offenders. This approach is consistent with the long and settled jurisprudence of this Court relating to Charter review generally and to s. 12 review in particular, is workable, and provides sufficient certainty. There is no reason to overrule this jurisprudence, especially as the effect would be to diminish Charter protection.
Where mandatory minimum sentencing laws are challenged under s. 12 on the basis of their reasonably foreseeable application to others, the question is what situations may reasonably arise, not whether such situations are likely to arise in the general day-to-day application of the law. Only situations that are remote or far-fetched are excluded.
In this case, N and C do not argue that the mandatory minimum terms of imprisonment in s. 95(2) are grossly disproportionate as applied to them. Rather, they argue that those mandatory minimum terms of imprisonment are grossly disproportionate as they apply to other offenders.
Turning first to s. 95(2) (a)(i), the question is whether the three-year minimum term of imprisonment would result in grossly disproportionate sentences in reasonably foreseeable cases. The answer to this question is yes.
Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At that far end stands, for example, the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. Given the minimal blameworthiness of this offender and the absence of any harm or real risk of harm flowing from the conduct, a three-year sentence would be disproportionate. Similar examples can be envisaged. The bottom line is that s. 95(1) foreseeably catches licensing offences that involve little or no moral fault and little or no danger to the public.
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. Consequently, s. 95(2)(a)(i) breaches s. 12 of the Charter .
As for s. 95(2)(a)(ii), there is little doubt that in many cases those who commit second or subsequent offences should be sentenced to terms of imprisonment, and some for lengthy terms. The seven-year term of imprisonment imposed on C is an example. But the five-year mandatory minimum term of imprisonment would be grossly disproportionate for less serious offenders. For them, the five-year term goes far beyond what is necessary in order to protect the public, to express moral condemnation of the offenders, and to discourage others from engaging in such conduct. Therefore, s. 95(2)(a)(ii) violates s. 12 of the Charter .
These s. 12 Charter violations are not justified under s. 1 . Although the government has not established that mandatory minimum terms of imprisonment act as a deterrent, a rational connection exists between mandatory minimums and the goals of denunciation and retribution. However, the government has not met the minimal impairment requirement under s. 1 , as there are less harmful means of achieving its legislative goal. In addition, given the conclusion that the mandatory minimum terms of imprisonment in s. 95(2) when the Crown proceeds by indictment are grossly disproportionate, the limits are not a proportionate justification under s. 1 . It follows that the mandatory minimum terms of imprisonment imposed by s. 95(2) are unconstitutional.
This conclusion makes it unnecessary to consider N and C’s arguments that s. 95(2) violates s. 7 of the Charter .
Per Rothstein, Moldaver and Wagner JJ. (dissenting): The reasonable hypothetical approach under s. 12 of the Charter does not justify striking down s. 95(2) of the Criminal Code . The hypothetical licensing-type cases relied upon by the majority are not grounded in experience or common sense. First, experience shows that there is not a single licensing-type case over the entire history of s. 95(2) where the imposition of a mandatory minimum could be regarded as grossly disproportionate. Moreover, the parties cannot identify a single case where an offender who has committed a licensing-type offence has been prosecuted by indictment, thus attracting a mandatory minimum. In fact, in the only licensing-type case raised by the parties, the Crown proceeded summarily.
Second, an application of the reasonable hypothetical approach which assumes that the Crown will elect to proceed by indictment when the fair, just, and appropriate election would be to proceed summarily does not accord with common sense. The Crown election has been purposely integrated into the legislative scheme and is a clear expression of Parliament’s intent to confer on prosecutors the ability to divert the least serious licensing-type cases into summary proceedings. It is a mistake to shunt this factor aside when crafting reasonable hypotheticals.
Parliament’s choice to raise the mandatory minimums in s. 95 reflects valid and pressing objectives, and it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture. This Court has warned against the use of hypotheticals that are “far-fetched or only marginally imaginable”. The hypothetical scenario advanced by the majority stretches the bounds of credulity. It is not a sound basis on which to nullify Parliament’s considered response to a serious and complex issue.
The majority identifies an alternative scheme that, in its view, would accomplish Parliament’s goals without offending s. 12 of the Charter . Under this scheme, the impugned mandatory minimums could be enacted as part of a revised offence containing an additional element beyond the existing elements of s. 95(1) . For example, the offence could be limited to “those engaged in criminal activity” or to “conduct that poses a danger to others”. The problem with this suggestion is two-fold.
First, it is discordant with Parliament’s true objective in creating mandatory minimums for the unlawful possession of a loaded or readily loaded prohibited or restricted firearm. Section 95 targets the simple possession of guns that are frequently used in gang-related or other criminal activity. Parliament has concentrated on simple possession for a reason: firearms — and particularly the firearms caught by s. 95 — are inherently dangerous. Outside of law enforcement, prohibited and restricted firearms are primarily found in the hands of criminals who use them to intimidate, wound, maim, and kill. Given the inherent danger associated with these guns, it was open to Parliament to conclude that their simple possession should attract a significant mandatory custodial sentence.
Second, adding new elements to the offence would render the mandatory minimums under-inclusive. Limiting the offence to “those engaged in criminal activity” could exclude cases where the imposition of a mandatory minimum is uncontroversial. Likewise, limiting the offence to “conduct that poses a danger to others” could exclude certain situations to which the mandatory minimums in s. 95 are intended to apply.
In sum, the reasonable hypothetical approach does not justify striking down the impugned mandatory minimums. In any event, a different analytical framework is required here. To date, this Court’s s. 12 jurisprudence has only considered the constitutionality of mandatory minimum sentences in the context of straight indictable offences. This is the first time it has examined their constitutionality in a hybrid scheme, which calls for a different analytical framework under s. 12 .
The proper analytical framework has two stages. First, the court must determine whether the hybrid scheme adequately protects against the imposition of grossly disproportionate sentences in general. Second, the court must determine whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for a particular offender. This two-stage approach offers a more compelling framework than the use of reasonable hypotheticals to resolve a s. 12 constitutional challenge to a mandatory minimum sentence in a hybrid scheme.
The first stage of the analysis has two parts. First, the court must determine the sentencing range for indictable convictions under the sentencing regime that existed prior to the enactment of the impugned mandatory minimum. This is done with reference to actual sentences found in reported cases. The court must then isolate the low end of that sentencing range. This low end serves as an objective indicator of appropriate sentences for the least serious instances of the offence that would realistically be prosecuted by indictment.
Second, the court must compare the impugned mandatory minimum with the low end of the prior range. If the mandatory minimum is grossly disproportionate to sentences at the low end, then the scheme does not adequately protect against the imposition of grossly disproportionate sentences in general. On the contrary, it puts an identifiable set of offenders directly at risk of cruel and unusual punishment in violation of s. 12 . The proper remedy here lies under s. 52(1) of the Constitution Act, 1982 , and the mandatory minimum must be struck down.
If the scheme itself is upheld, the court must move on to the second stage and determine whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for the particular offender before the court. In those rare cases where the Crown’s decision to proceed by indictment leads to a grossly disproportionate sentence, a remedy will lie under s. 24(1) of the Charter . The focus here is on the constitutionality of state action, and not the law itself. Specifically, the state action at issue is the Crown election, which is a matter of core prosecutorial discretion reviewable only for abuse of process.
A decision to prosecute by indictment that would give rise to a grossly disproportionate sentence represents a per se abuse of process in violation of s. 12 . Imposing such a sentence would “undermine society’s expectations of fairness in the administration of justice”. Grossly disproportionate sentences are “so excessive as to outrage standards of decency” and are “abhorrent or intolerable” to society. They constitute a breach of an accused’s fundamental right to be free from cruel and unusual punishment, and are incompatible with the integrity of our justice system. An exercise of prosecutorial discretion — be it by design or effect — that leads to such an outcome must be regarded as a per se abuse of process.
The offender bears the burden of proof to show an abuse of process at the sentencing phase. If the offender discharges this burden of proof, he or she is entitled to a remedy under s. 24(1) . In most cases, the appropriate and just remedy would be a sentence reduction below the mandatory minimum.
The responsibility to ensure constitutional compliance under the proposed framework rests with judges, and not with prosecutors. The framework includes two checks to ensure compliance with s. 12 , neither of which relies on prosecutorial discretion. First, if the sentencing scheme itself is challenged, the judge may strike it down as unconstitutional. Second, if an offender argues that the mandatory minimum would be grossly disproportionate in his or her case, the judge may find a per se abuse of process and grant a sentence reduction under s. 24(1) .
In N’s case, Code J. found that, prior to the enactment of the three-year mandatory minimum, the sentencing range for a first offence under s. 95 was a term of imprisonment between two years less a day and three years. Thus, the low end of the range is around two years less a day. The three-year mandatory minimum for a first offence under s. 95(2) is not grossly disproportionate to this low end. Therefore, at the first stage, the mandatory minimum does not violate s. 12 . N’s concession that a three-year sentence is not grossly disproportionate in his case disposes of the second stage.
In C’s case, Backhouse J. did not refer to the sentencing range for a second or subsequent offence prior to the enactment of the five-year mandatory minimum. Code J., however, noted that while the sentencing range for a first offence was between two years less a day and three years, much longer sentences were imposed for recidivists. It is clear, then, that a second or subsequent offence would have attracted a sentence considerably longer than three years — at the very least, in the range of four or five years. The present five-year mandatory minimum is not grossly disproportionate to the previous low end of the range for second or subsequent offences under s. 95 . Like N, C concedes that the mandatory minimum is not grossly disproportionate in his case.
In conclusion, neither the sentencing scheme itself, nor its application to N or C, offends s. 12 of the Charter . Moreover, s. 95 is neither arbitrary nor overbroad, and therefore does not offend s. 7 of the Charter .
Cases Cited
By McLachlin C.J.
Applied: R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Goltz, [1991] 3 S.C.R. 485; referred to: Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783; R. v. M. (C.A.), [1996] 1 S.C.R. 500; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Heywood, [1994] 3 S.C.R. 761; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Brown, [1994] 3 S.C.R. 749; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Smickle, 2012 ONSC 602, 110 O.R. (3d) 25; R. v. Oakes, [1986] 1 S.C.R. 103; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567.
By Moldaver J. (dissenting)
R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Snobelen, [2008] O.J. No. 6021 (QL); R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Felawka, [1993] 4 S.C.R. 199; R. v. Elliston, 2010 ONSC 6492, 225 C.R.R. (2d) 109; R. v. Chin, 2009 ABCA 226, 457 A.R. 233; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Jack (1996), 113 Man. R. (2d) 260; R. v. Jack, [1997] 2 S.C.R. 334; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Skolnick, [1982] 2 S.C.R. 47.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 , 12 , 24(1) .
Constitution Act, 1982, s. 52 .
Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1) , 56 .
Criminal Code, R.S.C. 1985, c. C-46, ss. 84(1) “prohibited firearm”, “restricted firearm”, (5), (6), 85(2), 95, 108(1)(b), 109, 110, 111, 113, 117.01(1), 515(4.1), 579, 718, 718.1, 718.2, 732.1, 742.3, 786(2), 810(3.1).
Firearms Act, S.C. 1995, c. 39, ss. 5 , 7(2) , 12 , 12.1 , 17 , 19 .
Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209, ss. 6, 7, 15.
Tackling Violent Crime Act, S.C. 2008, c. 6, s. 8 .
Authors Cited
Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach — Report of The Canadian Sentencing Commission. Ottawa: The Commission, 1987.
Canada. House of Commons. House of Commons Debates, vol. 141, No. 33, 1st Sess., 39th Parl., June 5, 2006, pp. 1941 and 1943.
Canada. House of Commons. Standing Committee on Justice and Human Rights. Evidence, No. 30, 1st Sess., 39th Parl., November 7, 2006, p. 1.
Canada. House of Commons. Standing Committee on Justice and Human Rights. Evidence, No. 34, 1st Sess., 39th Parl., November 23, 2006, pp. 1, 3-4 and 8.
Doob, Anthony N., and Carla Cesaroni. “The Political Attractiveness of Mandatory Minimum Sentences” (2001), 39 Osgoode Hall L.J. 287.
Doob, Anthony N., and Cheryl Marie Webster. “Sentence Severity and Crime: Accepting the Null Hypothesis” (2003), 30 Crime & Just. 143.
Pomerance, Renee M. “The New Approach to Sentencing in Canada: Reflections of a Trial Judge” (2013), 17 Can. Crim. L.R. 305.
Tonry, Michael. “The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings” (2009), 38 Crime & Just. 65.
APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.), 2013 ONCA 677, 117 O.R. (3d) 401, 311 O.A.C. 244, 303 C.C.C. (3d) 474, 296 C.R.R. (2d) 21, 5 C.R. (7th) 292, [2013] O.J. No. 5120 (QL), 2013 CarswellOnt 15898 (WL Can.), affirming a sentencing decision of Code J., 2011 ONSC 4874, 241 C.R.R. (2d) 306, 275 C.C.C. (3d) 330, [2011] O.J. No. 3878 (QL), 2011 CarswellOnt 8821 (WL Can.). Appeal dismissed, Rothstein, Moldaver and Wagner JJ. dissenting.
APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.), 2013 ONCA 681, 117 O.R. (3d) 456, 311 O.A.C. 316, 303 C.C.C. (3d) 352, 296 C.R.R. (2d) 72, 5 C.R. (7th) 370, [2013] O.J. No. 5115 (QL), 2013 CarswellOnt 15470 (WL Can.), affirming a sentencing decision of Backhouse J., 2010 ONSC 5437, 262 C.C.C. (3d) 120, [2010] O.J. No. 4209 (QL), 2010 CarswellOnt 7496 (WL Can.). Appeal dismissed, Rothstein, Moldaver and Wagner JJ. dissenting.
Andreea Baiasu, for the appellant Her Majesty The Queen.
Nancy L. Dennison and Richard A. Kramer, for the appellant the Attorney General of Canada.
Dirk Derstine and Janani Shanmuganathan, for the respondent Hussein Jama Nur.
Carlos Rippell and Michael Dineen, for the respondent Sidney Charles.
Julie Dassylva and Gilles Laporte, for the intervener the Attorney General of Quebec.
Rodney G. Garson, for the intervener the Attorney General of British Columbia.
Joshua B. Hawkes, Q.C., for the intervener the Attorney General of Alberta.
Written submissions only by Michael A. Feder, Julia K. Lockhart and Adrienne Smith, for the intervener the Pivot Legal Society.
Bruce F. Simpson, for the intervener the John Howard Society of Canada.
Kimberly Potter, for the intervener the Canadian Civil Liberties Association.
Nader R. Hasan and Gerald Chan, for the intervener the British Columbia Civil Liberties Association.
Anil K. Kapoor and Lindsay E. Trevelyan, for the intervener the Advocates’ Society.
Eric V. Gottardi and Nikos Harris, for the intervener the Canadian Bar Association.
Solomon Friedman, for the intervener Canada’s National Firearms Association.
Joanna L. Birenbaum, for the intervener the Canadian Association for Community Living.
Faisal Mirza and Anthony N. Morgan, for the intervener the African Canadian Legal Clinic.
The judgment of McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ. was delivered by
The Chief Justice —
I. Overview
[1] Gun-related crime poses grave danger to Canadians. Parliament has therefore chosen to prohibit some weapons outright, while restricting the possession of others. The Criminal Code, R.S.C. 1985, c. C-46 , imposes severe penalties for violations of these laws.
[2] Section 95(2) (a) imposes mandatory minimum sentences for the offence of possessing prohibited or restricted firearms when the firearm is loaded or kept with readily accessible ammunition (s. 95(1) ) — three years for a first offence and five years for a second or subsequent offence.
[3] The respondents Hussein Jama Nur and Sidney Charles were convicted under s. 95(1) . They assert that the mandatory minimum sentences imposed by s. 95(2) (a) are unconstitutional because they result in grossly disproportionate sentences in some cases, violating the guarantee in s. 12 of the Canadian Charter of Rights and Freedoms against cruel and unusual punishment. The Ontario Court of Appeal agreed, and held that the mandatory minimum sentences imposed by s. 95(2) (a) were unconstitutional.
[4] I agree with the Court of Appeal that the mandatory minimum sentences imposed by s. 95(2) (a) of the Criminal Code violate s. 12 of the Charter . Accordingly, the mandatory minimum sentences in s. 95(2) (a) of the Criminal Code are null and void under s. 52 of the Constitution Act, 1982 . In most cases, including those of Nur and Charles, the mandatory minimum sentences of three and five years respectively do not constitute cruel and unusual punishment. But in some reasonably foreseeable cases that are caught by s. 95(1) they may do so. This has not been shown to be justified under s. 1 of the Charter . It follows that s. 95(2) (a) is unconstitutional as presently structured. This conclusion makes it unnecessary to consider the respondents’ arguments that s. 95(2) (a) violates s. 7 of the Charter .
[5] This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances. Nur and Charles fall into this category. Like the Court of Appeal, I would uphold the sentences imposed by the trial judges in their cases.
II. Legislative Background
[6] Firearm-related offences are serious crimes. Parliament has sought to protect the public from firearm-related injuries and to deter crimes involving firearms through a combination of strict licensing and registration requirements under the Firearms Act, S.C. 1995, c. 39 , and criminal prohibitions under Part III of the Criminal Code : Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783 (“Firearms Reference”).
[7] The Criminal Code imposes severe restrictions and sanctions on two classes of firearms. A “prohibited firearm” includes short-barrelled handguns, sawed-off rifles and shotguns, and automatic firearms: Criminal Code, s. 84(1) . It is unlawful to possess a prohibited firearm unless the individual possessed the firearm prior to the prohibition coming into force: Firearms Act, s. 12 . This grandfathering also applies to next of kin. A “restricted firearm” includes any handgun that is not a prohibited firearm, some semi-automatic firearms, and some firearms that are less than the specified length: Criminal Code, s. 84(1) . These weapons are inherently dangerous and are commonly used in criminal activity.
[8] Anyone who wishes to possess a firearm must obtain a licence under the Firearms Act . Although one can obtain licences that authorize the possession of prohibited or restricted firearms, stringent criteria must be met: Firearms Act, ss. 7(2) and 12 . The Firearms Act imposes controls on places where a person who has a licence can possess the restricted or prohibited firearms: s. 17 . A Chief Firearms Officer may deny a person a licence in the interests of public safety: s. 5 . A licensed person must obtain authorization to transport firearms from one designated place to another: s. 19 . In addition, the Act requires that a person obtain a registration certificate for the firearm: s. 12.1 .
[9] Restricted or prohibited firearms must be stored unloaded, with a secure locking device and in a locked container or in a vault, safe or room that has been constructed or modified for the secure storage of firearms. Ammunition may not be stored with the firearm unless both the ammunition and the unloaded locked firearm are stored in a securely locked room or container that cannot be readily broken open or into: Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209, ss. 6 and 7. The firearms may only be loaded in a place where they can be lawfully discharged: s. 15.
[10] These licensing and registration requirements under the Firearms Act are reinforced through a series of Criminal Code offences that criminalize the possession of firearms where the possession contravenes the terms and conditions of the Firearms Act . The provision at issue in this appeal is s. 95 of the Criminal Code . The relevant version came into force in December 1998: S.C. 1995, c. 39, s. 139 . It prohibits the possession of a loaded prohibited or restricted firearm, or the possession of an unloaded prohibited or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm: s. 95(1) . The offence applies to a person in possession of a prohibited or restricted firearm who does not have an authorization or a licence to possess the firearm at the specific place at issue and a registration certificate for the firearm.
[11] The respondents challenge the constitutionality of the provisions in s. 95(2) (a)(i) and (ii) of the Criminal Code (as it read at the relevant time):
95. (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of
(a) an authorization or a licence under which the person may possess the firearm in that place; and
(b) the registration certificate for the firearm.
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, three years, and
(ii) in the case of a second or subsequent offence, five years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.
(3) Subsection (1) does not apply to a person who is using the firearm under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it.
[12] Section 95 is a hybrid offence punishable by a maximum of 10 years’ imprisonment if the Crown proceeds by way of indictment. When the provision was first introduced by Parliament, the offence carried a one-year minimum sentence if the Crown proceeded by indictment, and a one-year maximum penalty if the Crown proceeded summarily. In May 2008, Parliament increased the minimum term of imprisonment to three years for a first offence and five years for a subsequent offence if the Crown proceeded by indictment: S.C. 2008, c. 6, s. 8 . But Parliament did not change the one-year maximum sentence if the Crown proceeded summarily. Therefore, there is a two-year gap between the maximum penalty on summary conviction and the minimum penalty on indictment. Nur challenges this gap under s. 7 of the Charter .
[13] A review of the firearms offences in the Criminal Code reveals that s. 95 carries a more serious penalty than any other simple possession offence. The mandatory minimum terms of imprisonment found in s. 95 reflect two aggravating factors. It applies to prohibited and restricted firearms, which present the most significant danger to public safety. It only applies if the firearm is loaded or if ammunition for the firearm is readily available.
[14] Section 95(2) (a)(ii) imposes a five-year mandatory minimum term of imprisonment for a second or subsequent offence. For the purpose of determining whether a person has committed a second or subsequent offence within the meaning of s. 95(2) (a)(ii), one must have regard to s. 84(5) and (6):
(5) In determining, for the purpose of subsection 85(3) , 95(2) , 99(2) , 100(2) or 103(2) , whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence:
(a) an offence under section 85 , 95 , 96 , 98 , 98.1 , 99 , 100 , 102 or 103 or subsection 117.01(1) ;
(b) an offence under section 244 or 244.2; or
(c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
(6) For the purposes of subsection (5), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
[15] Charles challenges s. 84(5) and (6) as being overbroad and arbitrary, contrary to s. 7 of the Charter .
[16] The relevant provisions of the Charter state:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
III. Facts and Judicial History
A. Nur
[17] One evening in January 2009, a young man entered a community centre in the Jane and Finch neighbourhood of Toronto and told a staff member that he was afraid of someone who was waiting outside to get him. The staff member saw someone waiting outside who looked threatening. The neighbourhood had very high levels of crime. Gun violence was a serious problem. The supervisor put the community centre on lockdown and called the police. When the police arrived, they saw four men standing at one of the entrances of the community centre. Nur was among them. As one of the police officers approached, the men scattered.
[18] The police officer chased Nur. He held his left hand against his body and appeared to be concealing something. As the officer gained ground on Nur, he saw Nur throw something away. The officer caught and arrested Nur moments after. Returning to the area where he had seen Nur throw something to the ground, the officer found a loaded handgun under a parked car. The gun was a working 22-calibre semi-automatic with an oversized ammunition clip. There were 23 bullets in the clip and one in the chamber. The gun is a prohibited firearm. When functioning properly, the gun can fire all 24 rounds in 3.5 seconds.
[19] Nur was not found to be involved with the threatening behaviour, and it was not clear when, for how long, or how Nur came to possess the loaded handgun.
(1) Ontario Superior Court of Justice
[20] Nur was charged with one count of possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code . The Crown proceeded by indictment and Nur elected to be tried by judge alone. He ultimately pleaded guilty to the charge, but he did not admit any facts relevant to the allegations beyond those essential to the plea. At his sentencing, Nur put the Crown to the proof of any facts that it relied on as aggravating factors for sentencing. Nur also challenged the constitutionality of the three-year mandatory minimum sentence imposed by s. 95(2) (a)(i).
[21] Nur comes from a supportive, law-abiding family who came to Canada as refugees. At the time of the offence, he was 19 and attending high school. He was performing well and hoped to eventually attend university. He had worked a number of part-time jobs and volunteered in the community. Teachers and past employers praised his performance and his considerable potential. One teacher described Nur as “an exceptional student and athlete who excelled in the classroom and on the basketball court . . . an incredible youth with unlimited academic and great leadership skills”: 2011 ONSC 4874, 241 C.R.R. (2d) 306, at para. 34. Nur had no prior criminal record.
[22] The trial judge held that the three-year mandatory minimum sentence did not offend ss. 12 and 15 of the Charter . However, he concluded that the two-year gap between the one-year maximum sentence if the Crown proceeded summarily and the three-year minimum sentence if the Crown proceeded on indictment o