An Ontario court has struck down yet another mandatory minimum sentence for a firearms offence as unconstitutional using the hypothetical approach used by the Supreme Court of Canada in R. v. Nur.
“It is in a way an illustration of the sad state of affairs which exists in criminal law now because of the imposition on judges of mandatory minimum sentences,” says Toronto defence lawyer Aaron Harnett of the judge’s use of a reasonable hypothetical analysis in R. v. Shobway to find a mandatory minimum sentence unconstitutional despite his conclusions on the specific circumstances of the offender.
“It now is causing jurists to have to engage in some fairly esoteric exercises to undo the damage of mandatory minimum sentences.”
In considering the constitutional issue in Shobway on Aug. 18, Justice Grant Radley-Walters of the Ontario Court of Justice ruled that the minimum three-year prison sentence in the Criminal Code for transferring a firearm violates the Charter of Rights and Freedoms.
“I find that s. 99(2) like s. 95 (1) foreseeably catches licensing offences which involve little moral fault and little danger to the public,” he wrote, referencing both the offence considered in the case before him and the one at issue in Nur.
“I further agree that a three year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing as set out in s. 718 of the Criminal Code,” he added. “I conclude that s. 99(2)(a) breaches s. 12 of the Charter.”
The Criminal Code’s s. 99 (2) (a) spells out a minimum sentence of three years for anyone convicted of transferring a firearm. The ruling concerned a Charter application by Arnold Shobway, a Petawawa, Ont., man who had pleaded guilty in June 2014 to transferring two restricted firearms the previous year.
According to the decision, Shobway, a 26-year-old Ojibway man, had grown up on the Walpole Island Reservation “in an environment of alcohol, drug abuse and poverty” and had drunk alcohol regularly since the age of 16. He has also taken OxyContin, cocaine and other street drugs, selling his property to “feed his addiction,” wrote Radley-Walters.
Eventually, Shobway, who had joined the Canadian Forces in about 2009, sold two handguns, including his service gun, to his drug dealer for money he owed him.
Upon his arrest in November 2013 on criminal charges, police required Shobway to surrender his handguns, but he was unable to do so because he had already sold them. “He admitted this to the police and was co-operative,” wrote Radley-Walters. Police then found the handguns at the home of the drug dealer.
In his decision, Radley-Walters referred to Nur, a case in which Chief Justice Beverley McLachlin concluded that courts in s. 12 Charter cases should take into account how the minimum sentence affects not only the offender in the particular instance but also “reasonably foreseeable situations” involving “other persons who might reasonably be caught up by it.”
While the decision is from a lower court, criminal defence lawyer Janani Shanmuganathan of Derstine Penman in Toronto says it’s an important one nevertheless. Shobway, she says, “is a perfect illustration of the expansive scope of mandatory minimum sentences, particularly in the firearms regime. Such sentences . . . not only capture behaviour at the true-crime end of the spectrum but also behaviour that is tantamount to licensing infractions. The latter simply do not warrant long sentences and judges agree.” ....
