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Is legislation in line with constitution?


Cecil McCarthy

Is legislation in line with constitution?

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The Court of Appeal having now determined that the mandatory minimum sentence of seven years under the Firearms Act is unconstitutional, it is useful to discuss further what is the basis of the decisions across the Commonwealth which are trending in favour of such offences being declared unconstitutional.
The rationale for mandatory minimum sentences for unlawful possession of firearms is explained in the Ontario Court of Appeal case of R vs Charles (2013) at paragraph 34 of the judgment of the court:
“Section 95 seeks to protect the public by criminalizing the possession of potentially dangerous firearms in circumstances that increase the danger posed to the public by the possession of those firearms.  By criminalizing possession simpliciter, the criminal law can intercede before someone is actually harmed and before criminal activity, so often associated with the possession of these kinds of firearms, actually occurs or is attempted.”
It is therefore accepted that legislation of the type mentioned above is rooted in a constitutionally valid legislative purpose.
However, the test of the validity of the legislation goes beyond its purposes to determine whether the content of the legislation is consistent with the constitution.
In the Canadian context the relevant constitutional provision is Section 12 of the Charter. Section 12 provides that: “Everyone has the right not to be subjected to cruel and unusual punishment”.
In Canada there are two stages to the Section 12 analysis. First, the trial judge must consider whether the minimum sentence at issue constitutes cruel and unusual punishment based on the particular facts and circumstances of the offender before the court.  Secondly the judge will consider whether the minimum sentence would be cruel and unusual in light of reasonable hypothetical circumstances that may arise.
It is the second step that is the main basis of challenge to the constitutionality in our constitutional context where the issue is whether minimum sentence amounts to cruel and inhuman punishment.
I refer to paragraphs 48 and 49 of the decision in R vs Charles, which relies on a previous decision of the Ontario Court of appeal in R vs Nur.
Third, given these considerations, Doherty J.A. concluded, at para. 150 of  Nur, that the s.95 reasonable hypothetical has the following three characteristics:
(1) the accused is knowingly in possession of an unloaded, restricted or prohibited fireman with useable ammunition stored nearby and readily accessible:
(2) the accused has an authorisation to possess the firearm and has registered the firearm, but to his or her knowledge the authorisation does not permit possession of the firearm at the place or in the manner in which the accused has possession; and
(3) the possession of the firearm is not connected to any unlawful purpose or activity and the offender is not engaged in any dangerous activity with the firearm.
49. Fourth, the Nur court then tested the s. 95(2) three-year mandatory minimum penalty against its formulation of the s. 95 reasonable hypothetical with the three characteristics described above. The court concluded, at para. 169, that a three-year mandatory minimum penitentiary term for an offender in the posited reasonable hypothetical is “well beyond any punishment that would be considered proportionate to the gravity of the offence committed in the reasonable hypothetical”.
Justice Doherty put it this way, at para 196: “In my view, the cavernous disconnect between the severity of the offence as described in my reasonable hypothetical and a three-year penitentiary sentence is determinative of the s.12 analysis.
The severity of the s. 95 minimum when compared to the range of sentences available for similar offences serves to confirm my conclusion. Even taking into account factors such as parole that would mitigate the effect of the three-year sentence, I remain convinced that it is grossly disproportionate in the reasonable hypothetical I have drawn. The three-year mandatory minimum for as. 95(1) offence constitutes cruel and unusual punishment.”
R vs Charles was concerned in part with the constitutionality of section 95 (2)(a)(11) of the Criminal Code, which imposes a minimum sentence of 5 years imprisonment where the Crown proceeds on indictment in respect of an offence under section 95(1) which makes it an offence to possess certain types of firearms without the requisite authorisation or licence and firearms registration certificate.     
 Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]

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