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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against cruel and unusual punishment

Wednesday, April 22, 2020 @ 7:16 AM  


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Appeal by the accused from a sentence of 18 months’ imprisonment for possession of two stolen firearms. The sentence imposed was also intended to be a global sentence for convictions for careless storage of firearms, possession of brass knuckles and a taser, possession of stolen property, and possession of a false identity document. The appellant argued the trial judge erred in dismissing his constitutional challenge of the one-year minimum sentence under s. 96(2)(a) of the Criminal Code for the offence. Police executed a search warrant at the residence occupied by the appellant, his wife and two young children. Both the appellant and his wife held licences for the possession and acquisition of firearms. There were six stolen rifles, two of which were commemorative lever-action rifles. The appellant, 40 at the time of sentencing, had been on bail for approximately four years he attended a number of counselling sessions to better understand his internal motivations and to improve interpersonal relationships. He had a prior dated record for theft and possession of stolen property. The sentencing judge found that the one-year mandatory minimum penalty was not grossly disproportionate as applied to the appellant personally. The judge considered as aggravating factors the inherent danger of unsafely stored firearms, particularly when there were young children in the home and the appellant’s involvement in the market for stolen firearms, particularly when he was knowledgeable about firearms and their inherent danger.

HELD: Appeal dismissed. The mandatory minimum penalty in s. 96(2)(a) violated s. 12 of the Canadian Charter of Rights and Freedoms. The one-year mandatory minimum penalty in s. 96(2)(a) was of no force or effect. It would be grossly disproportionate to incarcerate a youthful first-time offender for possessing a stolen pellet gun. A stolen pellet gun that minimally met the definition of firearm could cause harm and could be used in connection with criminal activity, but such a gun did not pose the same risks to the community as traditional firearms or warranted the same degree of disapprobation as those firearms. The 18-month consecutive sentence imposed on the appellant, when considered as a global sentence for all convictions, was not unfit. Even when a nine-month sentence for the possession of the stolen rifles was imposed as argued by the appellant, appropriate individual sentences for all offences would result in a sentence that was not unduly long or harsh or disproportionate to the appellant’s overall culpability. Sentence: 18 months’ imprisonment.

R. v. Robertson, [2020] B.C.J. No. 280, British Columbia Court of Appeal, S.D. Frankel, G.J. Fitch and J.J.L. Hunter JJ.A., February 26, 2020. Digest No. TLD-April202020003