Court of Appeal strikes down mandatory minimum gun sentence

R. v. Nur, 2013 ONCA 677:

[59]       For convenience, I repeat the terms of s. 12:

Everyone has a right not to be subjected to any cruel and unusual treatment or punishment.

[60]       Section 12 provides constitutional protection against state-inflicted punishment that is cruel and unusual.  Section 12 claims can be based on the nature of the punishment, the conditions in which the punishment is served, the duration of the punishment, or some combination of those factors:  see Peter W. Hogg, Constitutional Law of Canada, loose-leaf (2007-Rel. 1), 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2007), at pp. 53-3 to 53-4. This appeal raises the most common kind of s. 12 claim.  The appellant argues that the mandatory minimum penalty of three years is cruel and unusual primarily because of its length.

[61]       A statutory provision which imposes a mandatory minimum jail term engages s. 7 of the Charter.  A person who is subject to that penalty suffers a deprivation of his or her liberty.  That deprivation is constitutional only if it is consistent with the principles of fundamental justice.

[62]       Section 12, like the other legal rights protected in ss. 8 to 14 of theCharter, is illustrative of a principle of fundamental justice.  Punishment that is cruel and unusual is an interference with liberty that is contrary to the principles of fundamental justice: Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486, at pp. 501-02.

[63]       A claim that a statutorily-imposed sentence is so harsh as to constitute an infringement on liberty that is inconsistent with the principles of fundamental justice falls to be determined exclusively under the s. 12 prohibition against cruel and unusual punishment.  Attempts to introduce some less stringent standard against which to measure the constitutionality of mandatory minimum sentences under the rubric of the principles of fundamental justice have been rejected:  R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 160.[8]

(ii)         What is "Cruel and Unusual" Punishment?

[64]       The words "cruel and unusual" have a long constitutional pedigree and are used together as "a compendious expression of a norm" to describe a punishment that is so beyond what would be proper or proportionate punishment as to be grossly disproportionate:  R. v. Miller, [1977] 2 S.C.R. 680, at pp. 689-90, per Laskin C.J., concurring; and Smith, at p. 1072. 

[65]       A sentence may be excessive, even sufficiently excessive to warrant appellate intervention, despite the high deference owed to sentences imposed at trial, and still not reach the level of gross disproportionality:  see Smith, at p.1072; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26; R. v. McDonald (1998), 40 O.R. (3d) 641 (C.A.), at p. 665; and R. v. K.(R.) (2005), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 66.

[66]       The Supreme Court of Canada has consistently used strong language to describe the kind of sentence that will run afoul of s. 12.  For example, Laskin C.J. in Miller, at p. 688, described a cruel and unusual sentence as one that is "so excessive as to outrage standards of decency".  His language echoes throughout the Supreme Court of Canada's s. 12 jurisprudence.   In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14, the present Chief Justice said:

As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive.  The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable" [citation omitted].

[67]       I see no value in characterizing the gross disproportionality inquiry as objective, subjective, or a combination of the two.  As with the application of any legal standard, the inquiry cannot turn simply on the individual judge's personal sense of the harshness of the sentence, or on the individual judge's perception of the public reaction to the sentence.  Identifiable criteria drawn from legal sources generally looked to when fixing sentences will guide the gross disproportionality inquiry.  In broad terms, that inquiry demands a comparison of the minimum penalty required by the challenged statute with what would be regarded as an appropriate range of sentence for the same offence committed by the same offender but for the challenged mandatory minimum.

[68]       Again, in broad terms, the comparative exercise described above looks to a variety of factors, including the specifics of the offence and the offender, the gravity of the offence as reflected in the statutory provision creating the offence, the generally applicable principles of sentencing, the kinds of sentences imposed for similar or related offences, the social harm targeted by the mandatory minimum penalty, and the purpose animating Parliament's decision to use a mandatory minimum sentence. 

[69]       Until relatively recently, mandatory minimum jail terms were a rarity in Canadian criminal law:  see Nicole Crutcher, "Mandatory Minimum Penalties of Imprisonment:  An Historical Analysis" (2001) 44 Crim. L.Q. 279; and Julian Roberts, "Mandatory Minimum Sentences of Imprisonment:  Exploring the Consequences for the Sentencing Process" (2001) 39 Osgoode Hall L.J. 305.  There is, however, no presumption that a mandatory minimum penalty is constitutionally suspect:  see Smith, at p. 1077.  Sentencing policy is first and foremost Parliament's responsibility.  A mandatory minimum is a "forceful expression of government policy in the area of criminal law":  R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 45; Ferguson, at para. 54; and R. v. Gill, 2012 ONCA 607, at para. 45.  Simply because mandatory minimums restrict judicial discretion, long the centrepiece of the sentencing process in Canada, does not mean that they offend the constitutional norm in s. 12.  As with any other constitutional challenge, the onus of proof rests on the party alleging theCharter violation:  see R. v. Goltz, [1991] 3 S.C.R. 485, at pp. 518-20.

[70]       The case law reflects the high bar set by the gross disproportionality standard.  After Smith, no decision of the Supreme Court of Canada or this court has declared a mandatory minimum jail term unconstitutional under s. 12.  As observed by Cory J. in Steel v. Mountain Institution, [1990] 2 S.C.R. 1385, at p. 1417:

It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of theCharter.  The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. 

[71]       The stringent gross disproportionality standard is justified on two grounds.  First, s. 12, like other constitutional protections, sets a minimum standard for legislation.  Section 12 fixes the outer boundary of Parliament's authority over sentencing in criminal matters: see Smith, at pp. 1107-08, per McIntyre J., dissenting.  Section 12 is not intended to constitutionalize any particular penological policy or theory, or to prohibit any legislation that the court may see as unreasonable or falling short of a best practices standard.  Properly restrained judicial constitutional review accepts the primary law-making responsibility of legislatures by acknowledging the wide ambit of legislative choices available to elected officials.

[72]       Second, the stringency of the gross disproportionality standard is justified by the nature of sentencing in the criminal law.  The fixing of an appropriate penalty, or more usually an appropriate range of penalties, is far from a science.  Different punishments can be justified using various theories of punishment.  Thus, a punishment regime that emphasizes utilitarian concerns will in many cases impose a very different sentence than would a regime emphasizing a "just desserts" model of sentencing.  Neither theory enjoys a constitutional status: see Morris J. Fish, "An Eye for an Eye: Proportionality as a Moral Principle of Punishment" (2008) 28 Oxford J. Legal Stud. 57. 

[73]       Part XXIII of the Criminal Code describes the fundamental purpose of sentencing in Canadian criminal law and identifies the operative principles of sentencing.  While both utilitarian and "just desserts" considerations are evident in the various sentencing principles identified in Part XXIII, the overall aim of Part XXIII is to impose a sentence that is tailored to both the offence and the offender.  Individualized sentencing through the exercise of judicial discretion sounds the keynote of Part XXIII.

[74]        Part XXIII does not, however, describe a constitutional standard.  In the same way that Part XXIII reflects Parliament's authority over and responsibility for penal policy, specific statutory provisions that depart from the generally applicable approach to sentencing in Part XXIII reflect that same authority and responsibility. Mandatory minimums that limit judicial discretion on sentencing are as much a reflection of sentencing policy as are the statutory provisions that create broad sentencing discretion.  The gross disproportionality standard recognizes that Parliament is free to set sentencing policy, even a policy that restricts the individualized approach to sentencing in Part XXIII, so long as the policy does not impose sentences that are so excessive as to be grossly disproportionate:  Ferguson, at para. 54; and Goltz, at pp. 501-03.

(iii)       The Two-Step Inquiry into Gross Disproportionality

[75]       A claim that a mandatory minimum sentence constitutes cruel and unusual punishment is tested in two ways.  First, the court must decide whether the punishment is grossly disproportionate as applied to the accused before the court.  This particularized inquiry asks whether the mandatory minimum is a grossly disproportionate punishment for the particular accused in the particular circumstances: Goltz, at p. 505. 

[76]       If the sentence survives the particularized inquiry, the court goes on to decide whether the sentence is grossly disproportionate when applied to reasonable hypotheticals:  see Goltz, at pp. 505-06.  The selection of an appropriate reasonable hypothetical is a matter of some controversy and is the key to the outcome of this constitutional challenge.

[77]       If a minimum penalty fails either the particularized or reasonable hypothetical component of the gross disproportionality inquiry, the provision, assuming it cannot be "saved" by s. 1 of the Charter, will be found to violate s. 12.  After some doubt, it is now established that if a mandatory minimum sentence violates s. 12, the remedy lies under s. 52 of the Constitution Act, 1982.  The offending provision to the extent that it is inconsistent with s. 12 will be of "no force or effect" and will be struck down.  A more narrow case-specific remedy in the form of a constitutional exemption applicable to the individual accused is not an available remedy:  Ferguson, at paras. 34-74. 

[78]       A number of factors may inform the gross disproportionality analysis, both as it applies to the particular accused and to reasonable hypotheticals: seeSmith, at p. 1073; Goltz, at paras. 25-27; and Morrisey, at paras. 27-28.   The factors identified in the case law are:

·                    the gravity of the offence;

·                    the personal characteristics of the offender;

·                    the particular circumstances of the case;

·                    the actual effect of the punishment on the individual;

·                    the penological goals and sentencing principles reflected in the challenged minimum;

·                    the existence of valid effective alternatives to the mandatory minimum; and 

·                    a comparison of punishments imposed for other similar crimes.

[79]       There is no formula to be applied in weighing and assessing the various factors in any given case:  R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at para. 75.  Several of the factors are self-explanatory; however, the gravity of the offence, the actual effect of the punishment on the individual, and the impact of penological goals and sentencing principles require further comment. 

(a)         The Gravity of the Offence

[80]       If, as in this case, the challenged mandatory minimum penalty requires the imposition of a three-year penitentiary term, a significant period of incarceration by any measure, the gravity of the offence will probably be the most important single factor in assessing constitutionality under the gross disproportionality standard.  Unless an offence that attracts a three-year minimum sentence can be described as a serious criminal offence, I do not see how a three-year minimum sentence could survive a s. 12 challenge. 

[81]       The gravity of the offence is measured by reference to the essential elements of the offence that the Crown must prove to establish guilt and not by the circumstances surrounding the commission of the offence in the particular case before the court.  The particularized factors are separately addressed in the s. 12 analysis.  For the purpose of measuring the gravity of the offence, a more generic approach to the offence is taken.

[82]       It cannot be gainsaid that all crime is serious.  In describing the gravity of a particular crime, however, one necessarily speaks in relative terms and by reference to the seriousness of other crimes, particularly related crimes.  When speaking of firearm-related offences, the seriousness inquiry, while acknowledging the inherent danger of all firearms, must go beyond that level of generality to the specifics of the offence as described in the offence-creating provision.

[83]       The seriousness of a crime is the product of the harm targeted by the elements of the crime and the moral culpability required to establish guilt for the crime.  The greater the harm and the higher the moral culpability, the more serious the crime.    

[84]       I use the word "harm" in a broad sense to refer to a variety of consequences ranging from death, to injury to another, to damage to property, to interference with other legally protected interests, or to the risk of one or more of those consequences.  Crimes that require proof of actual harm to others, especially death, are generally more serious than crimes that prohibit other forms of harm.  Crimes that do not require proof of any harm or risk of harm of any kind are generally less serious than crimes that do require proof of some kind of harm or risk of harm. 

[85]       As explained above, while most s. 95 offences will involve conduct that at the very least poses a risk of harm to others, s. 95 as written does not require proof of any harm or proof of any realistic risk of harm flowing from the unauthorized possession of the restricted or prohibited firearm.  Evidence that the firearm was safely stored and posed virtually no risk to anyone would not afford a defence to a s. 95 charge.  In short, proof that the accused's conduct harmed or posed a risk of harm to others is not a prerequisite to the imposition of a three-year penitentiary sentence under s. 95. 

[86]       The moral culpability component of an offence, the second factor to be considered when assessing seriousness, usually refers to the mental state that must accompany the commission of the prohibited act.  There are a variety of culpable mental states, including intention, recklessness, and knowledge.  An intention to bring about a prohibited consequence ranks at the top of the criminal law hierarchy of blameworthiness or moral culpability.    

[87]       Although moral culpability is generally reflected in a mens rearequirement, blameworthiness can lie in the nature of the conduct engaged in, as for example where proof of criminally negligent conduct will suffice to establish guilt.  Blameworthiness based on the nature of the conduct as opposed to the offender's mental state will usually reduce the seriousness of the offence.  Thus, criminal negligence causing death is significantly less serious than murder, even though the conduct and consequences required for the two crimes may be identical: see Morrisey, at para. 36.

[88]       Section 95 is a mens rea offence.  It requires proof of knowledge or wilful blindness of the elements of the actus reus of the offence.  The requirement that the Crown establish knowledge increases the moral culpability or blameworthiness of an accused's conduct and, therefore, increases the seriousness of the offence:  Goltz, at p. 507.

[89]       The broad scope of the conduct captured by s. 95 makes it difficult to come to any definitive conclusion as to the relative gravity of the conduct proscribed by s. 95.  Unlike other firearm provisions that carry a significant mandatory minimum sentence for a first offence, there is no common denominator in the conduct captured by s. 95 that allows one to say that, because of the harm involved, a s. 95 offence is a very serious criminal offence.  Indeed, Parliament has recognized that s. 95 offences are not inherently serious crimes by providing that the Crown can proceed summarily, in which case there is no mandatory minimum and the full panoply of sentencing options, including discharges, are available to the sentencing judge.

[90]       In attempting to gauge the seriousness of a s. 95 offence, it is helpful to compare that offence to the offence of criminal negligence causing death with a firearm.  That offence attracts a four-year minimum under s. 220(a) and can be committed in an infinite variety of fact situations.  However, all those fact situations require proof that the accused's conduct caused the death of another person.  The most serious of all possible harms is, therefore, a common element of all offences punishable under s. 220(a).  No such common feature can be found in the conduct component of s. 95.  Indeed, the section is written to eliminate even the requirement that the firearm be loaded, the strongest harm-related component of the offence as defined in s. 95.

[91]       The reach of the offence described in s. 95 is more akin to that of the offence of importing a narcotic into Canada considered in Smith.  Like the importation offence, s. 95 requires proof of blameworthiness through a knowledge requirement.  Also like s. 95, the conduct captured by the importation offence encompasses widely differing levels of harm ranging from the virtually non-existent (importation of a very small amount of marijuana) to the devastating (the importation for resale of large amounts of cocaine).  The broad sweep of the conduct captured by the importation offence figured prominently in the court's ultimate determination in Smith that the seven-year minimum period violated s. 12 of the Charter.[9] 

[92]       In summary, while the offence under s. 95 will almost always involve some element of risk of harm, and must in all cases involve knowledge or wilful blindness of the existence of the elements of the offence, the harm associated with a s. 95 offence is significantly, if not entirely, attenuated in some fact-situations that still fall squarely within the prohibition created by s. 95 and that attract the mandatory minimum if the Crown proceeds by indictment. 

(b)         The Actual Effect of the Punishment on the Individual

[93]       The gross disproportionality analysis is not done in the abstract.  The actual impact of the sentence on the offender must be considered. The conditions under which the offender will serve his or her sentence and any particular negative effects the sentence may have on an offender are relevant considerations.  If an offender seeks to show some special negative impact flowing from the imposition of the mandatory minimum penalty, evidence to support that contention will be necessary.  However, I think judges can take judicial notice that first offenders, especially young first offenders, will have a difficult time when placed in the federal penitentiary system. 

[94]       It is also understood that persons sentenced to a specific term of imprisonment in Canada will seldom serve the full term in custody.  Credit for pre-sentence custody and the operation of the parole system will have a very real impact on the actual sentence to be served by an offender. 

[95]       If a convicted person is incarcerated prior to sentencing, the trial judge may deduct a credit for pre-sentence custody from the mandatory minimum:  R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455; and McDonald.  The calculation for pre-trial custody is now controlled by ss. 719(3) and (3.1).  Those provisions set the credit at one day for each day in pre-sentence custody, subject to an increase to one and one-half days for each day in pre-sentence custody "if the circumstances justify it":  see R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, leave to appeal to S.C.C. granted August 15, 2013: [2013] S.C.C.A. No. 191; and R. v. Bradbury, 2013 BCCA 280, 298 C.C.C. (3d) 31. 

[96]       Credit for pre-sentence custody does not mean that the offender receives a sentence which is less than the mandatory minimum. Particularly after the enactment of s. 719(3.1), credit for pre-sentence custody affects the impact of the mandatory minimum not by reducing the sentence below that minimum, but by avoiding the potential gross disproportionality that could occur were an accused required to serve the entirety of a mandatory minimum after already serving a significant period of time in pre-sentence custody:  see McDonald, at p. 669.

[97]       The potential impact of pre-sentence custody on the actual sentence to be served by an accused subject to a mandatory minimum is demonstrated on the facts of this case.  The trial judge, as he was entitled to do at the time, gave the appellant two for one credit for his pre-sentence custody.  Based on that calculation, he imposed a further period of incarceration of one day.  Consequently, the mandatory minimum sentence had no practical impact on the time spent in custody by the appellant. 

[98]         Parole and other forms of post-sentence mitigation of time spent in custody must also be taken into account when considering whether the sentence imposed meets the gross disproportionality standard:  R. v. Luxton (1990), 58 C.C.C. (3d) 449 (S.C.C.), at p. 460; Goltz, at p. 514; and Morrisey, at para. 55.  To assume for the purpose of constitutional analysis that a sentence of three years means that a person will serve three years in jail, is to ignore the reality of the Canadian penal system.  Parole will, in most cases, reduce, sometimes significantly, the actual time spent in custody by an individual offender.  That, of course, is not to say that parole is a right or that offenders on parole do not have substantial restrictions on their liberty.  However, parole undoubtedly mitigates the impact of a sentence on an offender.   

[99]       Evidence as to the likelihood of parole for a specific offender would clearly be admissible on a s. 12 challenge.  Public Safety Canada data indicates that between 2001 and 2011, persons sentenced to penitentiary terms served about 32 per cent of their sentences before receiving day parole and about 38 per cent before receiving full parole.  The same statistics for 2012 indicate that the average federal prisoner in 2012 served about 38 per cent of his or her sentence before receiving day parole and about 41.5 per cent before receiving full parole:  Public Safety Canada, Corrections and Conditional Release Statistical Overview(2012 Annual Report) (Ottawa: Minister of Public Works and GovernmentServices Canada, 2012), online:<http://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2012-ccrs/2012-ccrs-eng.pdf>, at pp. 83-84.  These increases are apparently attributable to the Abolition of Early Parole Act, S.C. 2011, c. 11.[10] 

[100]    Averages do not predict the date of parole for any particular offender.  It is, however, realistic to assume that the kind of offender for whom a three-year minimum jail term could most likely be described as grossly disproportionate is the very same offender who would be most likely to gain early release on day parole and then full parole.   

(c)     Penological Goals and Sentencing Principles

[101]    The gross disproportionality analysis must also examine the rationale for the minimum sentence and its justification under recognized sentencing principles.  As explained in Morrisey, at paras. 43-48, the constitutionality of a minimum sentence cannot be determined by reference to any single sentencing principle.  In considering the four-year minimum penalty for the offence of criminal negligence causing death with a firearm, Gonthier J. said, at para. 46:

I am convinced that this legislation survives constitutional scrutiny even if the sentence pursues sentencing principles of general deterrence, denunciation, and retributive justice more than the principles of rehabilitation and specific deterrence.  In other words, the punishment is acceptable under s. 12 while having a strong and salutary effect of general deterrence. 

[102]    I understand Gonthier J. to mean that minimum sentences that stress denunciation and general deterrence over other sentencing goals are not thereby rendered unconstitutional.  It is equally true, however, that sentences that are said to be justified by those same principles do not automatically pass constitutional review:  Smith, at pp. 1073-74. 

[103]    A consideration of a mandatory minimum sentence in light of generally accepted theories of punishment and sentencing principles including proportionality inevitably drives one back to the gravity of the offence.  Thus, inMorrisey, a strong emphasis on the principles of general deterrence, denunciation, and retribution as reflected in a four-year minimum sentence was justified in light of the seriousness of the offence of criminal negligence causing death.  A four-year mandatory minimum for an offence that did not involve the same level of harm or did not have a blameworthiness requirement, while no doubt reflecting the same principles of deterrence, denunciation, and retribution, would likely not survive a s. 12 analysis.