Friday, July 13, 2012

Crime and sensible punishment for firearms trafficking

Lionel Bonaventure/AFP/Getty Images
Lionel Bonaventure/AFP/Getty Images
A Colt .45 caliber, the type of weapon Christopher Lewis was caught trying to sell to an undercover

Christopher Lewis was a small time drug dealer. He sold crack cocaine to an undercover police officer on a few occasions, and then offered to sell the officer a .45 calibre gun.
As a result, Lewis faced a mandatory minimum sentence of three years in jail for firearms trafficking. The mandatory sentence was one of several recently created by the federal government as part of its “tough on crime” justice reforms.
Mandatory minimum sentences have been widely criticized for being inflexible and excessive.
In some cases, for example where growing six marijuana plants leads to a minimum sentence of six months, the criticism may be legitimate. Mandatory minimums are ineffective at deterring drug users from growing their own marijuana; what’s more, the harm to society from marijuana use is questionable.
But with firearms trafficking the situation is different.
Virtually all the firearms used in organized crime and gang violence are illegally obtained and trafficked. Gun trafficking increases the firepower of criminals and poses a genuine danger to Canadians; recent shootings in Canadian downtown urban centres make that clear. Once entered into the criminal market, an illegally trafficked firearm can be functional and in constant circulation for decades; it can pass through the hands of numerous criminals and can be used in many different crimes. The danger created by a single incident of firearms trafficking can last for years.
Moreover, firearms trafficking is, unlike most other crimes, driven by economics and is therefore amenable to deterrence. Criminals trafficking firearms are rational, if immoral, business people who can be inhibited by a fixed and certain punishment. A stiff mandatory sentence for firearms trafficking is a reasonable and practical way to deter the offence.
All that said, the judge sentencing Lewis held that the mandatory minimum sentence for firearms trafficking breached the constitutional prohibition on cruel and unusual punishment. As a result, Lewis was sentenced to one year for the firearms trafficking charge.
“Parliament has imposed a minimum penalty that addresses a worst case offence but which grossly overpenalizes the many lesser ways that the same crime can be committed,” the judge wrote. Perhaps.
But would reasonable people really be outraged by a fixed minimum sentence of three years for firearms trafficking? Is such a punishment truly grossly excessive? Over a decade ago the Supreme Court of Canada said the “cruel and unusual punishment” section of the Charter only applies to a penalty “which is so excessive as to outrage our society’s sense of decency.” That is a high standard. The Supreme Court also said courts should be reluctant to “invalidate sentences crafted by legislators.”
The gun trafficking minimum sentence is one of those areas where the courts should have exercised more deference to parliament. A three year mandatory minimum sentence for firearms trafficking is not cruel and unusual — it is a sensible and stiff sentence crafted by legislators intent on deterring a dangerous crime.
National Post
James Morton is past president of the Ontario Bar Association and practices law in Ontario and Nunavut.


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