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Canada’s Supreme Court Shoots Down Harper’s Minimum Sentences for Firearm Offences

Another big legal loss for the Harper government's tough-on-crime agenda.

by Nick Rose
Apr 14 2015, 9:41pm

Photo via Wikimedia Commons

A loaded 22-calibre semi-automatic pistol with an oversized clip can fire 24 rounds in 3.5 seconds.

That's what Hussein Nur was carrying in 2009 when he was chased and arrested by police outside of a Jane and Finch community center in Toronto, a neighbourhood often plagued by gun violence.

The handgun in question is a " prohibited firearm," and shortly after, Nur was charged with possession of a loaded prohibited firearm and sentenced to three years imprisonment, the minimum under section 95 of the Criminal Code.

That is, until this morning, when the Supreme Court of Canada struck down the mandatory minimum which had been slipped into the Criminal Code via a Conservative omnibus crime bill in 2008.

Nur's lawyers argued that while their client got a sentence that reflected the severity of his crime, section 95 was fundamentally unconstitutional because it could unduly punish those accused of far less severe offences. In other words, "reasonable hypothetical cases."

In a 6-3 ruling, Canada's highest court agreed, thus upholding an earlier decision by Ontario's Court of Appeal.

"As the Court of Appeal concluded, there exists a 'cavernous disconnect' between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment."

Chief Justice Beverley McLachlin, writing for the majority, ruled that a minimum three-year sentence is "grossly disproportionate" because it could conceivably apply to cases as benign as somebody inheriting a firearm before they can get a licence or a spouse breaching the regulation with her husband's gun. These are basically licensing issues but section 95 would still force judges to impose a minimum sentence of three years for the first offence and five years for a repeat offence.

"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," McLachlin wrote in the decision, adding that these types of offences lack "any harm or real risk of harm flowing from the conduct."

As a result, the minimum three and five year sentences are in direct violation of the Charter of Rights and Freedom section 12, which protects us from "cruel and unusual punishment" by the state.

Mandatory minimums have become a staple of the Harper government's tough-on-crime agenda, and this particular case is a great example of how the Supreme Court has acted as a direct counterweight.

In fact, keeping the executive branch of government in check in matters of criminal law has become a defining feature of the McLachlin Court in recent years.

In February, they unanimously struck down Criminal Code provisions criminalizing assisted suicide, drawing the ire of many Conservatives.

And the Supremes have also turned out to be remarkably progressive in their rulings on surveillance and privacy matters. In another unanimous decision, the high court ruled that law enforcement agencies cannot simply ask internet service providers for users' personal addresses without judicial authorization, even if those users are suspected to be accessing, distributing or making child pornography.

That decision was hailed as a huge win for privacy advocates and a huge pain in the ass for the Conservatives, who were trying to pass not one but two bills that would have allowed ISP's to pass on your private information to law enforcement without a warrant.

The Supreme Court has also dealt big blows the Conservative crime agenda by striking down prostitution laws, keeping heroin injection sites open, repealing early parole abolition and upholding judicial discretion in sentencing. The list goes on. Not bad for nine unelected old white people in robes. If the NDP are the Conservatives' official opposition, the Supreme Court is their unofficial opposition.

Sukanya Pillay is the executive director and general counsel for the Canadian Civil Liberties Association, a group that has been vindicated by today's decision.

"We're very happy about this decision," Pillay told VICE. "For many years we fought against mandatory minimums because we think they are completely unfair and disproportionate and they do nothing to further criminal justice goals of deterrence or rehabilitation or restorative justice."

"Our problem with the "tough-on-crime" agenda is that we have to see if it's actually making a difference in terms of deterring crime or is it simply constraining civil liberties in the name of deterring crime. We've been fighting this agenda on a piece by piece basis and we're very happy with today's decision."

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