Until today, carrying a loaded handgun (or having ammunition readily available ) carried a three-year minimum jail sentence if the Crown elected by indictment.  Today, the Ontario Court of Appeal ruled that the three-year mandatory minimum sentence violates section 12 of the Charter because it  can amount to cruel and unusual punishment (see: R. v. Nur and R. v. Smickle).  As a result, section 95 of the Criminal Code was struck down as unconstitutional.

Before anyone argues that judges are flouting Parliament’s will, they should consider that the Court of Appeal effectively said that the appropriate sentence for most first-time offenders  is in the range of 2 to 3.5 years.  In Smickle, the Court of Appeal said the trial judge’s sentence of a one year of house arrest was “manifestly inadequate even absent the mandatory minimum.”  In Nur, the Court of Appeal approved the trial judge’s effective sentence of 40 months imprisonment for a youthful first-time offender.

Only exceptional cases will not attract significant jail sentences.  Most cases will not involve a morally blameless offender. Rather, a typical loaded handgun case will  attract a minimum 2 to 3.5 year sentence even after today’s ruling. In fact, many cases will carry even longer sentences.  The Court of Appeal described the typical loaded handgun case in Nur:

[52]       There is no doubt that the vast majority of persons charged under s. 95 fall at the true crime end of the spectrum.  Most guns that are the subject matter of a s. 95 charge exist entirely outside of the regulatory scheme established under the Firearms Act.  Most people charged under s. 95 would never think of applying for a licence and, were they to apply, would never obtain a licence or a registration certificate.  Furthermore, the vast majority of s. 95 charges arise in situations where the possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons.

In other words, trial courts can be trusted to impose “reasonable sentences”, and when they do not, appellate courts will overturn “lenient” handgun sentences.  This is one of many reasons why mandatory minimum sentences are unnecessary and ineffective.  (For a good review of why mandatory minimums are unjust see Michael Spratt’s blog here.)

The destructive and unjust effects of mandatory minimum sentences is captured by Justice Doherty’s statement in Nur that:

[180]    No system of criminal justice that would resort to punishments that “outrage standards of decency” in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry.  Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system.

Judges must have the discretion to not impose crushing sentences on offenders with minimal moral culpability. It remains to be seen whether other new mandatory minimum sentences, such as those for marijuana production, will be upheld. We can also count on the Federal Government appealing today’s rulings to the Supreme Court.