In a landmark decision, the Supreme Court of Canada ruled that mandatory minimum sentences for possessing a loaded, prohibited, or restricted firearm can constitute cruel and unusual punishment, rendering those specific minimums unconstitutional.
Section 95 of the Criminal Code imposes severe restrictions and strict licensing, registration, transportation, and storage rules on two specific classes of firearms:
- Prohibited Firearms: This includes short-barreled handguns, sawed-off rifles and shotguns, and automatic firearms.
- Restricted Firearms: This includes certain handguns that are not classified as prohibited, some semi-automatic firearms, and firearms that fall under a specified length.
The Penalty Structure Under Section 95
If prosecuted as a summary conviction offence (which is at the discretion of Crown Counsel), the maximum punishment is one year in jail, with no minimum penalty.
However, if the Crown chooses to proceed by indictment, the law previously required a mandatory minimum sentence of three years in prison for a first offence, and five years for a subsequent offence (with a maximum of 10 years). Prior to 2008, that minimum had been just one year.
The Charter and “Cruel and Unusual Punishment”
Under the Canadian Charter of Rights and Freedoms, a sentence is considered “cruel and unusual” if it is grossly disproportionate to the nature of the offence and the specific circumstances of the offender.
By their very nature, mandatory minimum sentences conflict with the important legal principle of proportionality. They strip judges of their discretion, foreseeably preventing a Court from handing down a lighter sentence when the specific facts of a case warrant it, which can result in profoundly unjust outcomes.
Why the Supreme Court Struck Down the Minimums
To determine if Section 95 was unconstitutional, the Supreme Court looked at realistic hypothetical scenarios to see if a mandatory minimum would force a grossly disproportionate sentence.
For example: Imagine a person with a valid license for a restricted firearm safely stores it unloaded at their home. However, they mistakenly leave it safely stored with ammunition at their cottage. In this scenario, the court should have the discretion to view the accused’s mistake as a mitigating factor.
Subjecting this person—whose actions amounted to little more than a licensing infraction with minimal blameworthiness and no real risk of harm—to a mandatory three-year prison sentence is overly harsh. Because realistic scenarios exist where the mandatory minimum would be grossly disproportionate, the Court ruled the minimum sentencing provision unconstitutional.
What This Means for Sentencing Today
This ruling does not mean that firearms offences are no longer taken seriously. An accused convicted of possessing a prohibited or restricted firearm under Section 95 can still easily receive a sentence of three, five, or even more years in prison.
The key difference is that because the mandatory minimum was struck down, no judge can be legally forced to impose it when the specific circumstances of the case demand a more lenient, proportionate penalty.
