On May 8, 2014, RCMP investigators showed up at the residence of Jason Robertson in Kamloops, British Columbia, armed with a search warrant. The police found six stolen rifles including an RCMP Centennial Winchester 30-30 model 94 and a Little Bighorn Centennial Winchester 44-40 model 94. On August 17, 2017, Justice Jeanne E. Watchuk of the British Columbia Supreme Court convicted Robertson of possession of stolen firearms under s 96(2)(a) of the Criminal Code reported as R v Robertson, 2017 BCSC 2402. In sentencing him to eighteen months incarceration, Justice Watchuk dismissed his constitutional challenge to the minimum term of imprisonment of one year indexed as R v Robertson, 2018 BCSC 521. He appealed.

1. Introduction

The one year mandatory minimum penalty was challenged on the basis that it violated the right “not to be subjected to any cruel and unusual treatment or punishment” under s 12 of the Charter of Rights. Parliament enacted the stolen firearm provision as part of the Liberal government’s Firearms Act, SC 1995, c 39. It came into force on December 1, 1998. Previously, possession of a stolen firearm could only be prosecuted under s 354 of the Code governing possession of property obtained by crime. Under s 355 of the Code, there is no mandatory minimum for an offence under s 354.

2. Sentence

Under the framework set out by the Supreme Court of Canada in R v Nur, 2015 SCC 15, [2015] 1 SCR 773 and R v Lloyd, 2016 SCC 13, [2016] 1 SCR 130, Robertson asserted that: (1) the one year mandatory minimum penalty was grossly disproportionate as applied to him personally; and, (2) in the alternative, it was grossly disproportionate as applied to four hypothetical offenders. Here are the hypotheticals.

(a) The Remorseful Thief

A person with no criminal record steals a firearm from his employer, has a change of heart, disposes of the firearm, and later admits to the theft.

(b) A Drug Trafficker’s Domestic Partner

A drug trafficker’s domestic partner with no criminal record, who is aware the trafficker sometimes trades drugs for stolen property and who observes the trafficker trade drugs for a shotgun, complains about the shotgun being in the home with children present. The trafficker hides the shotgun in the bedroom closet.

(c) The Reckless Hunter

A hunter with a dated criminal record for impaired driving holds a possession and acquisition licence (PAL) and arranges to buy a second hand rifle through a website. When the hunter and seller meet, the hunter becomes suspicious that the rifle may be stolen but decides to buy it because the price is low.

(d) The Youthful Purchaser of a Replica

A 19 or 20 year-old with no criminal record purchases a “hot” replica firearm either knowing or being reckless whether it was stolen because he thought it was “cool” and planned on possibly using it as part of a costume. He does not know a replica firearm is a prohibited device.

In the reasons for sentence, Justice Watchuk held, at para 6, that a fit sentence for Robertson was “equal to or greater than the mandatory minimum of one year.” The mandatory minimum sentence was therefore not grossly disproportionate on the particularized inquiry respecting him personally. In rejecting the four hypotheticals, Justice Watchuk concluded that the hypotheticals were either unreasonable or the mandatory minimum sentence would not be grossly disproportionate for any hypothetical offender. Specifically, Justice Watchuk stated at paras 37-8, that both the drug trafficker’s domestic partner hypothetical and the reckless hunter hypothetical were unreasonable because they “did not reflect the elements of the offence”.

3. Appeal

On February 26, 2020, the British Columbia Court of Appeal reversed in a ruling indexed as R v Robertson, 2020 BCCA 65. Writing the opinion for a unanimous panel, Justice S.D. Frankel concluded, at para 74, that “the minimum penalty is grossly disproportionate based on a reasonable hypothetical involving a firearm” and therefore violated s. 12 of the Charter. I will focus my remaining comments on two aspects of the ruling: (a) new hypotheticals considered on appeal; and, (2) the extent of invalidity of s. 96(2)(a).

(a) New Hypotheticals

The four hypotheticals rejected by Justice Watchuk were abandoned by Robertson on appeal. Two new hypotheticals he advanced evaporated during oral argument when the panel asked for further written submissions on another hypothetical and a modified version of Robertson’s original hypotheticals. Justice Frankel held, at paras 56-7, that the opinion in R v Bernarde, 2018 NWTCA 7, where the court declined to consider a hypothetical for the first time on appeal, was not “an absolute bar” to raising a new hypothetical. And the opinion of the Ontario Court of Appeal in R v Nur, 2013 ONCA 677 “evinces the ability of an appellate court to consider its own hypotheticals” given Justice David Doherty’s consideration of “my hypothetical” at para 165. Here are the new ones.

(i) Pellet Gun

A 19 year-old with no criminal record is found in possession of a pellet gun that has a muzzle velocity sufficient to make it a “firearm”. He knows it was stolen.

(ii) Replica Revised

A 19 year-old with no criminal record is found in possession of a replica firearm (a “prohibited device”) incapable of discharging a projectile. He knows it was stolen.

The Crown accepted the pellet gun hypothetical as “reasonably foreseeable” but maintained the position that “pellet guns are often physically indistinguishable from traditional firearms and that for a pellet gun to meet the definition of ‘firearm’ it must be capable of causing serious bodily harm.” A stolen pellet gun that is a firearm therefore poses the same risk as any other stolen firearm and the one year mandatory minimum sentence is not grossly disproportionate. Justice Frankel disagreed, at para 62:

“I accept that a stolen pellet gun that minimally meets the definition of ‘firearm’ can cause harm and can be used in connection with criminal activity. However, I do not accept that such a gun poses the same risks to the community as traditional firearms or warrants the same degree of disapprobation as those firearms, in particular ones that are restricted or prohibited. It would be grossly disproportionate to sentence a youthful first-time offender to a year in prison for doing no more than being found in possession of a stolen pellet gun. Indeed, it is not difficult to envisage circumstances in which incarcerating such an offender would be antithetical to the overall interests of society.”

(b) Extent of Invalidity

The extent of constitutional invalidity was an important question because the text of s 96(1) defines an actus reus that may be committed by possession of “a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition”. Robertson argued for an expansive declaration of invalidity embracing all of the itemized objects if the court concluded that the minimum sentence was grossly disproportionate with respect to a reasonable hypothetical based on any one of them. The Crown conceded that if the court concluded that the minimum sentence is grossly disproportionate based on a reasonable hypothetical involving a firearm, it could not “advance a principled argument to support a limited declaration of invalidity.” Justice Frankel therefore declared, at para 74, that the mandatory minimum sentence is “of no force or effect.”

4. Conclusion

The police found a total of forty firearms during the search, thirty-four of which were lawfully owned by Robertson or his wife. Justice Watchuk described him as “a firearms collector of sorts” in the reasons for judgment at trial, at para 88. There were a total of six stolen firearms including the two commemorative lever-action rifles. He was also convicted of other offences involving careless storage of seven firearms, and possession of brass knuckles, a Taser and stolen electronic devices. In conclusion, his argument for a reduction of the eighteen month sentence, based on the invalidity of the mandatory minimum one year sentence, was ultimately dismissed where Justice Frankel held, at para 98, that it was a fit global sentence.