Elephants in the court

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The good news first

Yesterday, the Supreme Court of Canada struck down mandatory minimum sentences for crimes involving prohibited and restricted firearms in its ruling on R. v. Nur and R. v. Charles. 

Pro bono lawyers Gerald Chan and Nader HasanThe BCCLA has long opposed the use of mandatory minimum sentences, and intervened in these cases. The BCCLA was represented before the Supreme Court by pro bono counsel Nader Hasan and Gerald Chan of Ruby Shiller Chan Hasan Barristers.

Writing for the majority, Chief Justice McLachlin confirmed the viability of the “reasonable hypothetical” for assessing whether a mandatory minimum sentencing scheme violates the Charter prohibition against cruel and unusual punishment, and the decision provides a useful blueprint for challenging mandatory minimums in future cases.

The Court also made important observations concerning mandatory minimum sentences. First, it reaffirmed the role of judges in sentencing decisions, emphasizing that ensuring that an offender serves a proportionate sentence “is the function of one person alone – the sentencing judge.” As the BCCLA argued in these cases, “proportionality is the fundamental principle in sentencing. It requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility (moral blameworthiness) of the offender. The proportionality principle serves a limiting or restraining function and ensures that the offender’s sentence is equivalent to his or her moral culpability, and not greater than it. It is a simple yet compelling premise – derived from the ‘just deserts’ principle – that the punishment should fit the crime.”

A blunt instrument

The Court highlighted how mandatory minimum sentences have the potential to frustrate proportionality in sentencing, and set out the harms that can flow from mandatory minimum sentencing schemes.

Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.

The Court acknowledged that mandatory minimums give Crown prosecutors “a trump card in plea negotiations, which leads to an unfair power imbalance with the accused and creates an almost irresistible incentive for the accused to plead to a lesser sentence in order to avoid the prospect of a lengthy mandatory minimum term of imprisonment. … We cannot ignore the increased possibility that wrongful convictions could occur under such conditions.

Further, the Court appeared unconvinced that mandatory minimums actually work, finding that the government “has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes,” and that “empirical evidence suggests that mandatory sentences do not, in fact, deter crimes.

These are powerful observations from the Chief Justice, and reflect many of the same concerns raised in the BCCLA’s comprehensive report on the social and legal implications of mandatory minimum sentencing, which we published last year.

Now for the not-so-good news

The primary legal dispute here is what constitutes a “reasonable hypothetical” offender for the purposes of the s. 12 Charter analysis. Under the Supreme Court of Canada’s existing jurisprudence, the test for whether a mandatory minimum sentencing scheme violates the prohibition against cruel and unusual punishment is in two parts. First, a court must determine whether the mandatory minimum imposes a grossly disproportionate sentence on the specific offender who is before the court. If so, then the punishment is cruel and unusual in violation of s. 12 guarantees. If not, then the court must undertake a second inquiry, and determine whether the sentence is grossly disproportionate for a “reasonable hypothetical” offender. If so, the scheme violates s. 12. In both Nur and Charles, the claim was that the mandatory minimums would be grossly disproportionate for the “reasonable hypotheticals,” and so much turned on how the “reasonable hypothetical” was characterized.

The SCC chose to deploy as its reasonable hypothetical individuals who had committed what were, in essence, licensing offences – gun owners who make mistakes about where and how their guns should be stored and transported. It found that the mandatory minimum (three years for first time possession offences) would be “grossly disproportionate” for this class of offenders, given that their offences involved “little or no moral fault” and “little or no danger to the public.” Thus, the scheme was struck down based on the mandatory minimum sentence that would be imposed on this hypothetical offender. The Court’s approach here is problematic for two reasons.

First, despite what the headlines might suggest, the Court’s decision does not do away with mandatory minimums for gun crimes entirely. It simply found that the mandatory minimum terms for possession of prohibited and restricted firearms are excessive for so-called licensing offences. Parliament can simply redraft the provisions to exclude the licensing offences and the mandatory minimums can remain intact. (In fact, the majority’s judgment makes a suggestion as to how this can be accomplished at paragraph 117.)

Elephants in the court

Second, the Court’s approach ignores what Nader Hasan, one of the BCCLA’s lawyers in these cases, has called the two elephants in the room: race and immigration consequences.

Take a minute to conjure up a mental image of the SCC’s hypothetical offenders: “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”; a woman who inherits a firearm without understanding the license requirements, or a woman who “finds herself in possession of her husband’s firearm and breaches the regulation.” It’s unlikely that you’ve conjured up the image of a young black or Aboriginal male. Yet the constitutionality of the mandatory minimum sentence must be assessed against such hypothetical offenders as well, taking into consideration systemic discrimination in Canada’s criminal justice system, the effects of racism in Canadian society (both historic and present-day), and how alternatives to incarceration may better achieve both rehabilitative and public safety goals for such offenders. Whether the mandatory minimum is a proportionate sentence for these hypothetical offenders, though, was not considered by the Court.

The deportation of Hussein Nur

Canada Immigration Officer Badge. Image credit: Flickr user Dave Conner, Creative Commons License 2.0.

And what do we mean by “immigration consequences”?While this issue is not even mentioned in the Supreme Court’s judgment, it is – in significant part – what was driving Mr. Nur’s appeal of the mandatory minimum sentence. As the Court’s decision sets out, Hussein Nur was 19 years old and attending high school at the time of his offence. He was a first time offender and in the words of one of his teachers, “an exceptional student and athlete … an incredible youth.” His guilty plea to one count of possession of a loaded prohibited firearm subjected him to the statutory minimum term of three years. Ultimately, he was sentenced to 40 months, which was calculated as time served, given his lengthy pre-trial detention.

Those details of Mr. Nur’s case are recounted in the Supreme Court’s judgment. What the Court does not mention is the effect that the mandatory minimum had on Mr. Nur’s immigration status. His family fled Somalia when he was four years old, and they were all granted refugee status in Canada. While he has permanent residence status in this country, he is not a Canadian citizen. Under the Immigration and Refugee Protection Act, a sentence of three years makes him ineligible to remain in Canada, and he would be deportable to Somalia – a country he hardly knows, and from which his family fled as refugees.

Yet the risk of deportation – which should have played an important role in Mr. Nur’s sentencing – was not considered by the Chief Justice in her decision. While the mandatory minimum sentencing scheme for gun offences was struck down as unconstitutional, Mr. Nur’s individual sentence was upheld. We don’t know yet if he will be deported, but he could be. We would argue that any assessment concerning the “gross disproportionality” of a sentence must consider all the consequences flowing from the sentence, and not merely the length of incarceration.

What this means is that the Court has given Parliament a roadmap for rewriting this particular mandatory minimum without having to address what is most troubling about it – its grossly disproportionate impact on the vulnerable and the racialized. So while there is much to celebrate in today’s decision, there is still much work left to do to ensure that our criminal justice is fair and just.

9 thoughts on “Elephants in the court

  1. I certainly appreciate your concerns for matters such as those in the cases discussed above. I’m not a lawyer but I try to be a good citizen who lives ethically and in accordance with the law – even with laws I might not agree with (until they change).
    In former times I had been bequeathed some firearms from my father after he had passed-on (a kind person, a Normandy vet and a supervisor of what used to be called The Nova Scotia Dept. of Lands and Forests. He loved the land and he loved people). My father was very careful to teach me how to handle firearms, store them, etc. (he also taught hunter safety courses). He taught me well.
    In matters of the law we are all responsible for knowing what is acceptable or not. When it comes to something like firearms, the very nature of these items makes it of paramount importance to know what is safe and what is not and especially what is legal and what is not.
    I realize immigrants and other newcomers might have arrived in Canada from other places in the world where such important safety restrictions, guidelines and laws might not be in place. However, as in all matters of laws, let alone culture, when making a new home in a new land it is imperceptive to adopt the laws, culture (even if it is multicultural in some respects) of the new land they wish to make their new home. It is imperative to learn these things, as with all citizens.
    In summary of my feelings on this matter: when it comes to firearms, although it may or may not be someone’s right to own a firearms, what is adamantly important is to abide by the laws related to those firearms and in extension to learn them.

    • However, as in all matters of laws, let alone culture, when making a new home in a new land it is imperitive to adopt the laws, culture (even if it is multicultural in some respects) of the new land they wish to make their new home.

  2. Consider how many American born persons are inadmissible to Canada due to arrest without conviction for DUI. Is that not cruel and unusual?

  3. In my opinion the imposition of mandatory minimum sentences is offensive. It turns the process of justice into a mechanical procedure that ignores the circumstances of individual cases. Far from serving justice mandatory minimum sentencing has the ability to thwart justice. Judges, not legislators, are the guardians of justice for individuals in a democracy.

  4. This blog post and the BCCLA email that led me here lead me to ask for help understanding the following terms:

    * racialized
    * racialized offender

    According to the Oxford dictionary, “racialize” is a transitive verb meaning “make or become racist”. (Think “radicalize”, a word used a lot these days and which I *do* understand.) In the context the above terms are used here and in the email (“… the Court failed to take into account factors such as race and immigration consequences for racialized and non-citizen offenders”), I simply do not understand them. This negatively affects my ability to sympathise with the BCCLA’s position here, even though I’m a BCCLA member.

    I *do* understand “immigration consequences” and “non-citizen offender”, but your use of “racialized” here has me stumped.

    • Hi Craig, thank you for your question. We use the term “racialized” to refer to people who are marginalized by racism and to draw attention to the fact that race is not a biological fact but a socio-cultural reality with serious consequences for people’s safety, well-being and rights. This usage of the term is widespread in discussions of racism in both academic and non-academic settings and has its origins in sociology and political theory. In reference to the Oxford English Dictionary’s definition of “racialize,” we are using the term in the sense of “to impose a racial interpretation on” or “to categorize or divide according to race.” We hope that this clears up any confusion! Thanks so much for following the BCCLA’s blog and for your engagement in our work.

  5. It is more than a little troubling when courts just ignore uncomfortable facts in making their determination. This happens far too often and is contrary to what we are entitled to expect from our justice system.

  6. Mr. Nur was laying for somebody outside a community centre while carrying a loaded, illegally possessed handgun, equipped with a large capacity magazine that nobody in Canada can legally possess. Speaking as a firearms owner, and lawyer, I have no trouble recognizing this as an instance of a very serious offence that must be dealt with severely. It’s also the type of offence for which deterrence works well. Some immigrant communities in Canada have a problem with gang activity and illegal handgun use. It’s absurd to say that Mr Nur was “racialized” by society into acting this way. Three years is a fit sentence for anyone who acts like this, whether citizen, permanent resident, or refugee. It would be very bad public policy to create a sentencing exemption for refugees, first nations, people with dependent children or elderly parents, or anybody else. The severe controls we apply to handguns in Canada are the key reason why we have so much less firearms violence than in the United States. Undermining those controls for the sake of the civil liberties of a person such as Mr Nur is a bad idea. The Court was right to strike down the mandatory minimum, which is too severe for technical breaches, but quite right to recognize that Mr Nur’s sentence was fit.