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R. v. Nur; R. v. Charles

These cases concern the constitutionality of mandatory minimum sentencing for certain firearms offences under the Criminal Code. In November 2013, the Ontario Court of Appeal released judgments for six appeals heard together in which the court found that mandatory minimum sentences for first and subsequent possession of a firearm are unconstitutional under the Charter’s section 12 protection against “cruel and unusual punishment.” Two of the six appeals heard by the Ontario Court of Appeal are now on appeal to the Supreme Court of Canada. This case is an important opportunity for the Supreme Court of Canada to opine on the constitutionality of mandatory minimum sentences and to clarify the “gross disproportionality” standard under s. 12 of the Charter. The BCCLA intervened in these cases.

The BCCLA has been a long-standing opponent of mandatory minimum sentencing. In 2014, the BCCLA released a comprehensive report analyzing the financial, social and legal implications of mandatory minimum sentencing in Canada. The evidence is clear: mandatory minimum sentencing fails to reduce crime, yet comes at a staggering personal, social and financial cost.

In these cases, the BCCLA proposed to the Court a framework for determining whether a mandatory minimum sentence is grossly disproportionate. The BCCLA’s framework integrates the fundamental principle of sentencing enshrined in the Criminal Code: that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. In the BCCLA’s view, mandatory minimum sentencing is a one size fits all approach to a process that must be individualized and contextual for it to be meaningful.

The Supreme Court of Canada issued its judgment in April 2015. It struck down the mandatory minimum sentencing scheme for crimes involving prohibited and restricted firearms. 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.” 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. 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.”

Decision of the Supreme Court of Canada

The BCCLA’s argument in this case can be found here.

The BCCLA is represented by Nader Hasan and Gerald Chan of Ruby Shiller Chan Hasan Barristers.