By Patrick Shannon
Mandatory minimums are a hotly contested issue in Canadian Criminal Law. In R v Nur, the Supreme Court of Canada weighed in on whether mandatory minimum sentences impose cruel and unusual punishment on offenders. What makes this particular sentencing provision interesting is that it allows the Crown to proceed either by way of summary or indictment, with only the latter carrying the minimum sentence of three years. The Dissent viewed this as a safety valve preventing less blameworthy offenders from being subject to the mandatory minimum. This view was rejected by the Majority.
The impact of its decision in this case is not entirely clear. To prove that a situation might occur that would force a judge to hand down an unjust sentence, the Majority uses hypothetical cases that, as the Dissent points out, are far-fetched at best. These test cases were all situations in which the Crown had previously proceeded by way of a summary offense. It seems as if the Majority is grudgingly acknowledging that Parliament has a right to enact mandatory minimums, but that it may only use them when the crime is severe. Its refusal to acknowledge the hybrid nature of the provision appears to indicate an implicit rejection of Parliament’s slow encroachment on the judge’s right to craft a sentence that fits the crime.
Hussein Jama Nur and Sidney Charles were charged with offenses under s 95 of the Criminal Code (“Code”). This provision imposes a mandatory minimum sentence of three years for the offence of possessing prohibited or restricted firearms when the firearm is loaded or kept with readily accessible ammunition. An additional sentence of five years is listed for a second or subsequent offence. In 2009, Nur encountered the Toronto Police while he was in possession of a working and loaded 22‑calibre semi-automatic with an oversized ammunition clip. He was not involved in other criminal activity at the time of his arrest, and did not have a criminal record. At trial, the judge found that the three year mandatory minimum sentence did not offend s 12 of the Canadian Charter of Rights and Freedoms (“Charter”), and that a 40 month sentence was appropriate.
The previous year, police were called to an incident at the rooming house where Charles was living. A search of the house found a loaded Ruger semi-automatic handgun equipped with an over-capacity magazine, and ammunition in Charles’ bedroom. The gun’s serial number had been removed. Charles had a lengthy and serious criminal record at the time of his arrest. In both cases, the Crown elected to proceed by way of indictment rather than summary conviction, thus bringing the mandatory minimum sentences of s 95(2) into effect. At trial, the judge rejected Charles’ s. 12 claim, and ruled that the five year mandatory minimum for subsequent offenses was not grossly disproportionate given his record and the circumstances of his offense.
Both Charles and Nur appealed to the Court of Appeal for Ontario, and the Court heard both of their appeals along with those of four others. Noth Charles and Nur argued that these mandatory minimum sentences infringed s. 12 of the Charter, on the grounds that they subjected certain persons accused under the s. 95 of the Code to punishments which would grossly exceed what might be appropriate in their circumstances. In other words, although both Nur and Charles were given appropriate sentences for the severity of their crimes, they argued that in hypothetical cases a court would be forced to hand down disproportionate sentences. Cronk J.A, writing for the Court, agreed with their position and allowed the appeal. The Crown appealed this decision to the Supreme Court of Canada.
Arguments of the Court:
Canadian courts have long held out a high threshold for what constitutes cruel and unusual punishment with regards to sentencing. A sentence that infringes s 12 of the Charter must be more than just excessive; it has to be grossly disproportionate relative to the severity of the crime and the circumstances of the offender (R v Smith,  1 SCR 1045, at p. 1073).
Section 718 of the Code clearly states that the purpose of sentencing in Canadian law is to prevent crime, denounce unlawful conduct, deter future offenses, protect society from offenders where necessary, assist in the rehabilitation of offenders, to provide reparations, and to instill a sense of responsibility in offenders for the harm they have caused. The judge must also assess the circumstances of the offender, and account for mitigating or aggravating factors that might affect the type of sentence or the length of imprisonment.
Under these rationales, neither Nur nor Charles argued that their sentences were disproportionate as applied to them. On the facts, they accepted that their sentences were a justified punishment for knowingly possessing prohibited firearms that were loaded and ready to be used. Instead, Nur and Charles argued that the mandatory minimums were unconstitutional as they applied to other offenders (R v Nur at para 48).
When a claim is made that a mandatory minimum sentencing provision infringes s 12 of the Charter, two questions must be answered by the Court. First, whether the provision imposes cruel and unusual punishment on the accused who has made the claim. If the sentence is just, then the Court must also address the question of whether the provision may, in reasonably foreseeable situations, impose cruel and unusual punishment on future offenders (R v Nur at para 39).
As a result, the Court must consider whether, in a range of reasonably foreseeable situations, the impugned provision might result in a grossly disproportionate sentence. In R v Nur, the Court explores what kind of hypothetical cases may be used in determining the constitutionality of a sentencing provision. Justice McLachlin, writing for the Majority, argues against the idea of confining an assessment to the situation of the offender. The Majority is clearly troubled by the possibility of having its ability to determine a just sentence narrowed by mandatory minimum sentences. In order to pass muster, the Majority argues that such sentencing provisions must not result in a grossly disproportionate sentence within a wide range of foreseeable cases. In other words, if the Court can imagine a situation in which it would be forced to apply an unjust sentence, then that provision will violate s 12 of the Charter.
Using this framework, the Majority found that the mandatory minimum terms of imprisonment set out in s 95(2)(a) of the Code resulted in grossly disproportionate sentences in reasonable hypothetical cases at the licensing end of the s 95 spectrum, and therefore violated s 12 of the Charter. Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range deserve a sentence of three years or more, but conduct at the far end of the range may not. At one end stands the criminal who is carrying a firearm with the intent to commit a criminal act. At the other stands the licensed and responsible gun owner, who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. In the latter cases, the mandatory minimum sentence contemplated by s 95(1) would violate s 12 of the Charter (R v Nur at para 82).
Although Charles and Nur brought the claim, the Majority found their sentences were proportionate given the circumstances of their offenses, and accordingly upheld them.
Three of the justices put forward a dissenting opinion. Justice Moldaver, writing for the dissent, argued that the hypothetical licensing cases employed by the Majority were not grounded in any sort of common sense reality. In their pleadings, the parties did not identify any cases where offenders committing these less blameworthy offences was prosecuted by indictment, attracting a mandatory minimum sentence (R v Nur at para 125).
Furthermore, the Dissent highlights the hybrid nature of the offense. The Crown can choose between a summary and an indictable offense, which builds a sort of safety valve into the provision to shield less blameworthy situations. The existence of a summary offense that carries no mandatory minimum is, for the Dissent, a concession on the part of Parliament that foreseeable cases might arise for which the mandatory minimum sentences would not be appropriate (R v Nur at paras 149-150). Justice Moldaver adapts the framework used by the Majority to account for the hybrid scheme of the provision. Under his framework, the Court must consider whether the summary conviction “safety vale” would prevent grossly disproportionate sentences.
It is clear that the Majority struggled with the conflict between respect for Parliament’s right to enact criminal provisions and the restrictive impact of mandatory minimum sentences. The jurisprudence is clear that there are cases in which a mandatory minimum sentence will infringe the accused’s right under s. 12 of the Charter not to be subjected to cruel and unusual punishment. To make sure that mandatory minimum sentences don’t have this effect, the Courts are permitted to look beyond the claimant’s situation to determine if, in the future, the sentencing provision might force a court to hand down an unjust sentence. Both the Majority and the dissent were in agreement on this point.
What makes Nur more complicated than past challenges to mandatory minimum sentences is that Parliament built a safety valve into s 95(2). For less serious crimes, the Crown was given the power to pursue a summary offense and avoid the minimum sentence. Implicit in the Majority’s refusal to consider this “safety valve” is a refusal to cede more sentencing discretion to prosecutors. The Court has the duty to consider all the mitigating and aggravating factors that go into a particular sentence. Sentencing has always been a highly individualized process that allows the judiciary to fit the punishment to the severity of the crime. When the Crown is able to decide from the first day whether a more serious sentence is justified, the judiciary’s sentencing power is abridged. Justice Moldaver, writing for the Dissent, makes the important point that there has not yet been a case of the Crown abusing the power to select between a summary or indictable offense. As a result, the hypothetical scenarios chosen by the Majority are unlikely to occur.