According to a decision by the Supreme Court of Canada last Spring, mandatory minimum sentences for possessing a loaded prohibited or restricted firearm are considered cruel or unusual punishment, making them unconstitutional. Section 95 of the Criminal Code – which had been recently amended – imposed severe restrictions on two classes of firearms:
1. “Prohibited firearms” including short-barreled handguns, sawed-off rifles and shotguns, and automatic firearms;
2. “Restricted firearms” including some handguns that are not prohibited firearms, some semi-automatic firearms, and some firearms that are less than the specified length.
The section imposes licensing and registration requirements and other criteria for possessing prohibited or restricted firearms as well as rules for transportation and secure storage of firearms and ammunition. If prosecuted as a summary conviction offence (at the discretion of Crown Counsel) the maximum punishment is a year, without any minimum punishment; however, if the Crown proceeds by indictment, the minimum sentence had been 3 years in prison for a first offence (or 5 for a subsequent offence) with a maximum imprisonment of 10 years. Prior to 2008 the minimum had been one year.
Under the Canadian Charter of Rights & Freedoms, a sentence is considered “cruel and unusual” if it is grossly disproportionate having regard to the nature of the offence and the circumstances of the offender. The minimum sentence under s. 95 is the most severe penalty of any other “simple possession offence” (prohibited and restricted firearms are considered particularly dangerous, not to mention the public safety risk if they are loaded or ammunition is readily accessible.)
By their nature, mandatory minimum sentences depart from the important principal of proportionality in sentencing. They could foreseeably prevent a Court from giving an appropriate sentence at the low end of an otherwise appropriate range and may result in unjust sentences.The Supreme Court looked at hypothetical cases that might lead to a charge under s. 95 to see if a mandatory minimum sentence would be grossly disproportionate and therefore the section itself would be unconstitutional. For example, if a person had a valid licence for an unloaded, restricted firearm at his home but got charged with having safely stored it with ammunition at a cottage the court ought to have the discretion to take into account the accused’s mistake as a mitigating factor and be able to impose a sentence proportionate to the crime – but a mandatory minimum of 3 (or 5) years under s. 95 was overly harsh. (This example came from an actual case.) What was essentially a licencing infraction would generate an unreasonable sentence. Since that was a realistic hypothetical situation with such minimal blameworthiness and the absence of any harm or real risk of harm, the minimum sentence was found to be grossly disproportionate and therefore unconstitutional.
This is not the say that an accused convicted of possession of a prohibited or restricted firearm under s.95 could not receive a sentence of 3 or 5 years (or more); however, since the minimum has been determined to be unrealistic, no judge can be forced to impose it.
