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Bar renews call for safety valve after mandatory minimum ruling

Thursday, April 30, 2015 @ 8:00 PM | By Cristin Schmitz

The Supreme Court has reined in Parliament’s ability to impose excessive sentences in a judgment that lawyers say casts constitutional doubt on the government’s proposed ‘life-without-parole’ bill.

The top court’s 6-3 decision April 14 in R. v. Nur [2015] S.C.J. No. 15 makes clear that Ottawa does not have unlimited constitutional scope to enact mandatory minimum penalties whose harshness exceeds what the seriousness of the offence demands and the offender deserves.

The court’s invalidation, as “cruel and unusual punishment,” of the three- and five-year mandatory minimums for illegal firearms possession is “very significant” on several fronts, said Dirk Derstine, counsel for Nur, one of the two respondent offenders.

He said the case marks the first time since R. v. Smith [1987] S.C.J. No. 36 that the Supreme Court has struck down a law as being contrary to the Charter’s s. 12 prohibition against cruel and unusual punishment.

“A number of people thought that that might not happen,” said Derstine, of Toronto’s Derstine Penman. “I think it’s a step towards an evolving doctrine at the Supreme Court that significant increases in penalties, beyond what is reasonable, [are] constitutionally suspect.”

Chief Justice Beverley McLachlin’s 6-3 decision upheld the 2013 ruling of a five-judge panel of the Court of Appeal for Ontario striking down the three-year mandatory minimums for first-time conviction, on indictment, for possessing a loaded prohibited or restricted firearm, or possessing an unloaded prohibited or restricted firearm with ammunition readily available, as well as the five-year mandatory minimum provision for second and subsequent convictions.

The majority agreed with the Court of Appeal that s. 95 of the Criminal Code is so broadly written that it could, in theory, lead to otherwise law-abiding gun owners being subjected to grossly disproportionate punishments for what are, in essence, licensing violations involving little or no moral fault, and little or no danger to the public.

“Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun owners from making mistakes, to be sure,” Chief Justice McLachlin wrote. “But a three year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in s. 718 of the Criminal Code and legitimate expectations in a free and democratic society.”

Derstine said the majority also rejected as contrary to the available empirical evidence the argument by the Ontario and federal attorneys general that mandatory minimum provisions deter crime. “So if you don’t have a deterrent effect for something, it’s a little bit harder [for governments] to justify harsher sentences,” he said.

Unlike the minority judges, the majority also rejected the argument of the attorneys general that a grossly disproportionate mandatory minimum provision for a hybrid offence can be saved from unconstitutionality by the Crown’s discretion to prosecute summarily when the conduct in question is not serious enough to warrant the mandatory minimum provision.

“Bad law, fixed up on a case-by-case basis by prosecutors, does not accord with the role and responsibility of Parliament to enact constitutional laws for the people of Canada,” the chief justice held. “Sentencing is inherently a judicial function…The Crown’s submission is in effect an invitation to delegate the courts’ constitutional obligation to the prosecutors employed by the state, leaving the threat of a grossly disproportionate sentencing hanging over an accused’s head.”

The majority said Parliament could have achieved its goals of denouncing and punishing illegal gun possession by drafting a narrower offence focused on criminal activity or conduct that poses a danger to others, “rather than a sweeping law that includes in its ambit conduct attracting less blameworthiness for which the mandatory minimum sentence would be grossly disproportionate.”

The court’s judgment has renewed the legal community’s call for a statutory “safety valve” to be added to Canada’s fast-growing regime of more than five dozen mandatory minimum provisions.

“I think it would be a very prudent, wise, and fair move for the government to give that the most serious consideration, not only in the future, but with respect to existing mandatory minimums,” said Queen’s University law professor Allan Manson, a sentencing expert.

The Canadian Bar Association and the Uniform Law Conference of Canada — a group of mostly senior Crowns and justice policy officials — have asked the Department of Justice to consider creating general statutory exemptions empowering trial judges to grant relief from most mandatory minimum provisions (except murder, and perhaps impaired driving) in “exceptional” or “substantial and compelling” circumstances when such penalties result in injustice.

Justice Minister Peter MacKay told The Lawyers Weekly two years ago he did not favour general statutory exemptions, but lawyers suggest a judicial safety valve could provide some constitutional insurance to a government whose tough-on-crime laws keep running afoul of the Charter.

“Certainly I think any kind of mandatory minimum, where that kind of exemption clause was put in there, would answer a lot of the [majority’s] criticisms in Nur, in terms of maintaining some modicum of judicial discretion…if they don’t make it an impossible test,” said Eric Gottardi of Vancouver’s Peck and Company.

Gottardi, chair of the CBA’s national criminal justice section, called the majority judgment “a clear message that mandatory minimum sentences aren’t great. There’s a number of these ill-advised law-and-order initiatives that have been rejected by the court.”

Manson said the majority’s reasoning casts constitutional doubt over the government’s Bill C-53. The life-without-parole bill condemns certain categories of murderers, who under current law must wait 25 years before applying for parole, to die in prison unless they receive executive clemency which the justice minister could only consider after an offender has been imprisoned for 35 years.

“I don’t think the state can justify even moving from 25 years to 35 years, let alone all the questions about the ministerial release discretion,” Manson said.

Gottardi predicted that Bill C-53, like the anti-terrorism bill (C-51) and recent omnibus legislation creating new mandatory minimum provisions, will “face a lot of expert testimony that this is not constitutional — that it’s not going to pass constitutional muster.”

He added: “We seem to see a recurring attitude of the court towards rejecting extreme positions that aren’t really tied into evidence-based policies. I think you can take elements of the [Nur] judgment and look forward into the future and envision that the court will intervene in a similar way with these kind of really draconian measures. Ultimately the question of proportionality is going to be the overarching issue in these cases.”

Justice Michael Moldaver, backed by Justices Marshall Rothstein and Richard Wagner, argued in dissent that the majority was frustrating Parliament’s “valid and important” objectives of protecting the public and deterring gun crimes based on far-fetched scenarios that have never happened, and never will happen because prosecutors divert less serious hybrid cases into summary proceedings which do not carry mandatory minimum provisions.

“It is not for this court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture,” said Justice Moldaver.

MacKay’s press secretary, Clarissa Lamb, said the government is considering “options that would not affect law-abiding gun owners.

“Our government will continue to be tough on those who commit serious crimes and endanger our communities, especially when those crimes involve the illegal use of guns,” Lamb said by e-mail. “Mandatory minimum prison sentences demonstrate to Canadians that the rights of criminals will no longer trump the rights of victims of crime.”