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Minimum Sentences for Guns are Cruel and Unusual: Supreme Court of Canada

  • May 20, 2015
  • Clayton Rice, K.C.

On April 14, 2015, the Supreme Court of Canada released its opinion in R. v. Nur, 2015 SCC 15 holding that the mandatory minimum sentences for possession of a loaded prohibited firearm are unconstitutional. Writing for the 5-2 majority, Chief Justice Beverley McLachlin found that the minimum sentences of three years imprisonment for a first offence and five years in the case of a second or subsequent offence under s. 95(2)(a) of the Criminal Code contravened the right not to be subjected to cruel and unusual punishment under s. 12 of the Charter of Rights. The Supreme Court thus took another step in regaining the judiciary’s control over sentencing policy and practice from the Conservative government’s law and order agenda.

One of the most important aspects of the judgment is the approach that should be taken when dealing with a hybrid offence that carries a mandatory minimum sentence: the reasonable hypothetical analysis or a new framework proposed by Justices Michael J. Moldaver and Richard Wagner in dissent.

In R. v. Smith, [1987] 1 S.C.R. 1045 the Court had held that a challenge to the constitutional validity of a mandatory minimum sentence requires a twofold analysis: (a) the court must first determine what constitutes a proportionate sentence for the particular offence; and, (b) the court must then determine whether the mandatory minimum sentence requires that a sentence be imposed that is grossly disproportionate. The threshold is high. The question is not simply whether the minimum sentence is excessive but whether, as Justice Antonio Lamer said in Smith at paras. 53-4, it is so excessive as to outrage standards of decency:

“The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, ‘whether the punishment prescribed is so excessive as to outrage standards of decency.’ In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

…The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.”

In Nur, Chief Justice McLachlin characterized the issue in the following way, at paras. 57-8:

“The question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples’ situations, resulting in a violation of s. 12. The terminology of ‘reasonable hypothetical’ may be helpful in this regard, but the focus remains squarely on whether the sentence would be grossly disproportionate in reasonably foreseeable cases. At its core, the process is simply an application of well established principles of legal and constitutional interpretation.

I conclude that the jurisprudence on general Charter review and on s. 12 review of mandatory minimum sentencing provisions supports the view that a court may look not only at the offender’s situation, but at other reasonably foreseeable situations where the impugned law may apply. I see no reason to overrule this settled principle.”

The rationale underpinning the majority opinion is that, in cases of mandatory minimum sentences, it is the nature of the law and not the status of the offender that is in issue. Chief Justice McLachlin concluded as follows, at para. 65:

“I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations. The constant jurisprudence of this Court and effective constitutional review demand no less. In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons.”

In dissent, Justice Moldaver proposed a new framework for analyzing the constitutionality of hybrid offences that carry mandatory minimum sentences where the Crown has elected to proceed by indictment. Justice Moldaver was of the view that the court should focus on the constitutionality of the Crown’s election to proceed by indictment rather than summarily and not on the law itself, at para. 150:

“…[T]he proper analytical framework should focus on the safety valve – the Crown’s discretion to elect summary proceedings in the least serious cases…Briefly, it has two stages. First, the court must determine whether the hybrid scheme adequately protects against the imposition of grossly disproportionate sentences in general. Second, the court must determine whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for a particular offender.”

In a post on the Osgoode Hall blog,, titled R v Nur: The Battle of Two Approaches to Challenging a Mandatory Minimum Sentence Under s. 52 of the Constitution Act, 1982, Jordan Casey argued that the reasonable hypothetical approach is more appropriate for three reasons. I agree with his reasons but with a slightly different emphasis in the argument. I am of the view that the reasonable hypothetical approach is preferable because it is consistent with the overarching principle that the exercise of Crown discretion is the wrong place to look for protection of constitutional rights. These are the takeaways:

First, it is critical that the focus in the analysis remain on the “grossly disproportionate” effect of the law itself. As Chief Justice McLachlin stated, at para. 44:

“Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.”

Second, an assessment of the reasonably foreseeable impact of the law enables the court to test potential future applications. The court may address potential harm before it occurs and not simply provide a remedy after the fact which is the result of the analytical approach suggested by Justice Moldaver. Chief Justice McLachlin put it this way, at para. 63:

“Not only is looking at the law’s impact on persons whom it is reasonably foreseeable the law may catch workable – it is essential to effective constitutional review. Refusing to consider reasonably foreseeable impacts of an impugned law would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order. The protection of individuals’ rights demands constitutional review that looks not only to the situation of the offender before the court, but beyond that to the reasonably foreseeable reach of the law. Testing the law against reasonably foreseeable applications will prevent people from suffering cruel and unusual punishment in the interim until the mandatory minimum is found to be unconstitutional in a particular case.”

Third, and this is the overarching point, the framework proposed by Justice Moldaver makes Crown discretion the fulcrum in the analysis. Crown discretion is hardly a safe harbour from cruel and unusual punishment. As Justice Lamer stated in Smith, at para. 69: “…[T]he section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution  is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter.” That is still the law.

The 5-2 ruling in Nur represents another rebuke of the Conservative government which has developed a unenviable track record of unconstitutional legislation. The Supreme Court has said previously that the object of mandatory minimum sentences is the removal of judicial discretion in the sentencing process. The removal of discretion renders a sentencing court unable to craft sentences unique to the circumstances of a specific crime and specific offender. Mandatory minimum sentences thus fail the test of consistent proportionality.

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