Mandatory minimum. Struck down?

It’s always risky business jumping the gun on interpreting the deeper meaning of court decisions and the impact they will have on laws in general.  The recent celebratory fanfare surrounding a recent ruling by the Ontario Court of Appeal striking down mandatory sentences for firearm offenses is an example of this.

In R. v. Nur, a case involving a Toronto man charged under s. 95(1) of the Criminal Code with possession of a loaded prohibited firearm, Ontario’s highest court declared the corresponding three-year mandatory minimum sentence to be unconstitutional. It constituted “cruel and unusual punishment” under s. 12 of the Canadian Charter of Rights and Freedoms since it could unfairly net some hypothetically hapless gun-owners who unwittingly infringed the law.

But that hardly means that mandatory minimums will disappear anytime soon. In fact, read the decision carefully, and it is clear that in the Court’s view, "Section 95 is, without question, a valid expression of the federal criminal law power." Doherty J.A. noted that "the criminal prohibition created by s. 95, coupled with a mandatory minimum penalty” could be considered “a rational legislative response to the very real public safety concerns."

But the court wrote that s. 95 has a special implication, in that merely possessing a restricted firearm doesn't necessarily put the public at risk. It reasoned that if the gun-owner's registration was expired, even if the prohibited firearm was safely stored and maintained, the mandatory minimum would still apply. It notes that the punishment under the law would be the same for the "regulatory end" of the spectrum as it would be for the "true crime" end. The latter, the court underlines, "should continue to receive exemplary sentences that will emphasize deterrence and denunciation."

The decision was backed up by its companion case released on the same day, in R. v. Smickle, where an Ontario man had been using his laptop to take pictures himself – selfies – with an illegal semi-automatic handgun. The Court of Appeal judge resonated the Nur ruling, and actually noted that Smickle, not withstanding the mandatory minimums, should have actually faced more jail time.

It's not clear that either ruling will pave the way for more fights on this front; of the 50-odd criminal code provisions that now carry mandatory minimums, few appear to fall under the hybrid status of being both criminal and regulatory, like Section 95. Nevertheless, it's renewing calls for the government to go back and create exceptions in the legislation to address the idea of installing 'safety valves.'

"[Mandatory minimums] are here to stay, so why not make them a little more logical, a little more compassionate?" says Eric Gottardi, a criminal defence lawyer at Peck and Company in Vancouver.

He says that the recent Ontario Court of Appeal decisions illustrate how the sentencing restrictions, which began their rollout in 2008, were poorly implemented. He points out that South Africa and the United States, which both have similar minimums, installed statutory exceptions to deal with the extraordinary situations where applying the minimum sentence would be extreme.

"It doesn't have to open the floodgates," he says, figuring that by not jailing, say, a 73-year-old with cerebral palsy running an unlicensed medical marijuana grow-op might actually net the government some good press.

And as more mandatory minimums are applied, by the law of large numbers, those sorts of exceptional circumstances might become more and more common.

The decisions are giving the Justice Department pause, given that both offer some support to the government's position. A statement provided by the department said that the government is still mulling over its options for an appeal, but underlined that Ottawa has no interest in abandoning its so-called 'tough on crime agenda,'

Though numerous jurists and academics have echoed Gottardi’s criticism, he doubts the government will willingly go back and edit any of its crime legislation unless forced to do so. In this case, it might have to.

Initially the trial judge, analyzing a different constitutional tack on the minimums, had to consider whether they violated s.7 of the Charter. The defence had argued that a conviction by summary trial carried a maximum one-year sentence. As the accused was sentenced under indictment, he faced three years minimum – an inexplicable and arbitrary distinction, argued the defence, and therefore unconstitutional.

The trial judge dismissed that claim, as the defence had no standing to make it, but noted that the incongruity may be a "legislative oversight" that could be fixed legislatively.

Even so, Gottardi says the s. 7 argument might still have mileage. "I think there may be room, still, for an argument that a fit sentence is a provision of fundamental justice under Section 7," he says.

Whether the case makes it to the Supreme Court – in which case Gottardi who chairs the Canadian Bar Association's Criminal Law Section hopes that interveners like the CBA will propose "reasonable alternatives" – or the government takes the initiative to add statutory exceptions on their own, the matter is far from resolved.