Focus: Judges shoot down mandatory minimums

Two more mandatory minimum sentences were found to be unconstitutional by Ontario Superior Court judges this fall. That may be just the start of similar findings involving other mandatory minimums in the months ahead, say lawyers who have launched successful challenges.

The decisions follow the Supreme Court of Canada’s finding earlier this year in R v. Nur that the minimum sentences for illegal possession of a loaded firearm would be “grossly disproportionate” in some cases and,  as a result, breached the cruel and unusual punishment section of the Charter.

“Once you accept the premise that a provision is unconstitutional, a lot of these laws are fairly similar,” says Dirk Derstine, a partner at Derstine Penman, who acted for Hussein Nur in his challenge of the firearm minimums.

Defence lawyer John Norris says that some of the more recent mandatory minimum sentences, enacted under the government of former prime minister Stephen Harper, have been a source of concern to the courts. “Mandatory minimums, given how broadly they have been applied, have sat uneasily with the judiciary. They are problematic from a principled point of view,” says Norris.

The most recent provision to be struck down was the mandatory minimum three-year sentence for anyone who “manufactures or transfers” or offers to manufacture or transfer a prohibited, restricted,  or non-restricted firearm, a prohibited or restricted weapon, a prohibited device or ammunition — that is not authorized under the Firearms Act. A second offence under the section carries a minimum sentence of five years in prison. The minimum for the first offence was increased to three years from one by the former Conservative government, which also added a new minimum for subsequent offences under the section.

Superior Court Justice Mark Edwards ruled in R v. Hussain on Nov. 25 that the section was sufficiently broad that it could require the imposition of a three-year prison sentence for what is effectively a licensing infraction and as result it was in breach of the Charter.

Derstine, who was also the defence counsel in Hussain, put forward a “reasonable hypothetical” that the provision could capture a grandmother who passes down a gun that is a family heirloom after her war hero husband passes away. Crown attorney Michael Newell suggested that this hypothetical was too far-fetched. Edward agreed, but the Superior Court judge, who was appointed by the Conservatives in 2010, put forward his own hypothetical that led to his finding that the law is unconstitutional.

The judge’s hypothetical involved “Smith,” a licensed hunter. Smith lends his rifle to his brother so they can hunt together for the first time in several years, knowing that his brother does not have a possession and acquisition licence. While hunting together, the brothers run into a former acquaintance from high school, who is now an OPP officer, and who lays charges against Smith.

“While demonstrating that Smith had the necessary mens rea in that he transferred the gun to his brother knowing his brother did not have the necessary licence, equally, in my view, demonstrates that a three year sentence would be grossly disproportionate to the true criminal offender that section 99 is designed to catch,” the judge wrote.

The other mandatory minimum to be struck down this fall involved new sentencing provisions in the Controlled Drugs and Substances Act, related to marijuana grow-ops.

Peel Regional Police charged Duc Vu after executing a search warrant at a residential dwelling in Brampton and finding more than 1,000 plants and 66 kilograms of wet marijuana. Vu is facing a mandatory minimum of three years in prison for being found guilty of operating a grow-op of more than 500 plants and the Crown having proved it was a potential public safety hazard in a residential area.

In discussing the use of a reasonable hypothetical to determine if a punishment is grossly disproportionate, Superior Court Justice Bruce Durno addressed what the Supreme Court in Nur said about conducting this analysis.

“The majority in Nur found a court was simply asking: What is the reach of the law?  What kind of conduct may the law reasonably be expected to catch,” wrote Durno in his Oct. 20 decision in R v. Vu. “In deciding the type of cases that mandatory minimum sentences may reasonably be expected to capture, judges are to bring to bear their judicial experience and common sense.”

Norris, who represented Vu, argued that since a mandatory three-year sentence for a first offender with a loaded handgun was found to violate the Charter, it was disproportionate to impose this same sentence on the operator of a marijuana grow-op that has been found to be a “potential” public safety hazard. The three-year minimum is the same as that imposed on large-scale producers of heroin and cocaine, the court heard.

Durno agreed that some of the mandatory minimums for fewer than 200 plants could also capture licensed medical marijuana producers who unintentionally had more plants than they were permitted to grow. He found those sections to be unconstitutional.

The judge invited Norris and the federal Crown to provide more written submissions about whether all of the grow-op minimum penalties are constitutional, in advance of Vu’s sentencing hearing, scheduled for Dec. 18.

In Hussain, despite striking down the weapons transfer section, the judge imposed a four-and-a-half-year sentence against the defendant who has a significant criminal record and was convicted of trafficking in a shotgun. Finding that a mandatory minimum provision is too broad “will not result in the lowering of sentences” for serious offences, says Derstine.