On April 14, 2015 the Supreme Court of Canada released its decision in R v. Nur, 2015 SCC 15. The 6-3 majority held that the mandatory minimum sentences for possessing prohibited or restricted firearms that are loaded or kept with readily accessible ammunition are unconstitutional.

The mandatory minimum sentences set out in the Criminal Code required at least a three year prison sentence for a first offence and five years for a subsequent offence. The majority held that these mandatory minimums violated the guarantee in s 12 of the Canadian Charter of Rights and Freedoms against cruel and unusual punishment and were not saved by s 1 because they did not satisfy the minimal impairment test.

The case involved two respondents, Hussein Jama Nur and Sidney Charles, who were separately convicted of possession of a loaded, prohibited firearm. Nur and Charles were sentenced to three and five year mandatory minimum imprisonment terms, respectively. On appeal, the Ontario Court of Appeal held that the mandatory minimums were unconstitutional, but that the sentences imposed on Nur and Charles were appropriate. The Attorney General of Ontario and the Attorney General of Canada appealed, and the following constitutional questions were certified by the Court :

  1. Do the mandatory minimum terms of imprisonment in s 95(2)(a)(i) and (ii) of the Criminal Code infringe s 12 of the Charter?
  2. Do the mandatory minimum terms of imprisonment in s 95(2)(a)(i) and (ii) of the Criminal Code infringe s 7 of the Charter?
  3. If so, are they saved under s 1 of the Charter?

Mandatory Minimums Violate Section 12

Writing for the majority, the Chief Justice reasoned that the mandatory minimum sentence required by s 95(2)(a) was not cruel and unusual in most circumstances, including in the cases of Nur and Charles. However, the Chief Justice opined that applying the mandatory minimums in some reasonably foreseeable cases would violate s 12 of the Charter. Section 12 guarantees against cruel and unusual punishment. A sentence will be considered cruel and unusual if it is grossly disproportionate to the appropriate or proportionate sentence. Interestingly, beyond this test for a cruel and unusual sentence, the majority and dissent agreed on little else about the application of s 12.

The majority focused on reasonably foreseeable cases (or “reasonable hypotheticals”) in which an individual innocently violates s 95(1) with no harm or risk flowing from the conduct. Although in her decision McLachlin CJ warns against focusing on a particular hypothetical, she imagines a few different examples in which the three year minimum sentence would be grossly disproportionate. One example is that of a licensed gun owner storing his gun and ammunition in his cottage when his license permits him to store it only in his home. Another is the case of a spouse finding herself in possession of her husband’s firearm and innocently breaching the regulation.

Because the mandatory minimums were grossly disproportionate in reasonable hypothetical examples, the majority concluded that the mandatory minimums constituted cruel and unusual punishment. Similarly, because the mandatory minimums applied to morally non-blameworthy conduct, they could not be justified under s 1 of the Charter: A minimally impairing mandatory minimum sentence must be drafted to ensure it closely corresponds with significantly morally blameworthy conduct.

In light of the successful s 12 challenge, the majority found it unnecessary to address the s 7 argument.

McLachlin CJ noted that the gross disproportionality test is meant to capture punishments that are more than merely excessive. The majority also observed that grossly disproportionate sentences cannot be justified by the goal of general deterrence.

However, the majority’s analysis raised an issue that became a key point of disagreement between the majority and the dissent. Because s 95 is a hybrid offence, the Crown has the discretion to proceed either summarily (with a maximum sentence of one year) or by indictment (with the mandatory minimum). Since the mandatory minimum is not necessarily engaged in the majority’s reasonable hypotheticals (because the Crown may elect to proceed summarily), it is not clear that cruel and unusual punishment would ever, in fact, result. Can the majority’s reasonable hypothetical approach nevertheless form a legitimate basis for finding the mandatory minimums unconstitutional?

Does the Reasonable Hypothetical Approach Demonstrate Gross Disproportionality?

Writing for a dissent comprised of himself, Rothstein J and Wagner J, Moldaver J levied a two-pronged attack against the reasonable hypothetical approach. As the first prong, the dissent argued that allowing for summary proceedings under s 95 “all but ensures” that minor offences will not attract the mandatory minimum sentence and therefore the majority’s reasonable hypotheticals “strain the bounds of credulity” and “are not grounded in experience or common sense”.

In support of the dissent’s position, Moldaver J appealed first to experience, observing that since s 95 was enacted in 1995 there has not been a single instance of an offence involving little or no moral fault that has been prosecuted by indictment.

Turning to common sense, the dissent endorsed an observation made by Code J in Nur’s trial decision: namely, that it is hard to conceive of a reasonable hypothetical that depends on the Crown unreasonably electing to proceed by indictment. The dissent submitted that an application of the reasonable hypothetical approach which ignores the fact that Crown counsel have a sworn duty to act in the public interest does not accord with common sense.

The majority’s position was that relying on Crown election is entirely appropriate; however, the judge’s role and the prosecutor’s role must not be conflated. Hybrid offences are for the purposes of allowing prosecutorial discretion, not judicial discretion. Because it was reasonably foreseeable that the mandatory minimums might require a judge to impose a grossly disproportionate sentence, they were found to be unconstitutional.

Is the Reasonable Hypothetical Approach the Correct Framework for Hybrid Offences?

The second prong of the dissent’s attack was to argue that the reasonable hypothetical approach is redundant. As the dissent puts it, when Parliament elected to make s 95 a hybrid offence, they effectively conceded that there were foreseeable cases in which a mandatory minimum would be grossly disproportionate. In light of that fact, the dissent proposed a two-stage framework in which the Court must determine 1) whether the hybrid scheme adequately protects against the imposition of grossly disproportionate sentences in general and 2) whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for a particular offender, by electing to proceed by indictment.

The majority responded directly to the framework proposed by the dissent, arguing that the framework insufficiently protects against grossly disproportionate sentences, that there is no certainty prosecutorial discretion will always be used to avoid unconstitutional results (and thus the constitutionality of a provision cannot rest on this assumption) and that allowing prosecutors this discretion creates an unfair power imbalance.

The Court is Grappling with the Limits on the Use of Reasonable Hypotheticals

Since the release of R v. Nur the media has consistently commented on the Supreme Court of Canada’s now long list of decisions striking down Conservative government laws and, in particular, tough-on-crime legislation. But at the heart of this decision is a fascinating debate about the appropriate constraints on the use of “reasonable hypotheticals” in determining the constitutionality of criminal legislation.

The reasonable hypothetical approach promises to allow judges free reign to consider myriad examples of the application of a law in a way that meaningfully informs the results of the cases before it. The Attorney General appellants in R v. Nur argued that this would create uncertainty and that lawyerly ingenuity would become the only limit on findings of unconstitutionality under s 12. The majority, on the other hand, observed that by confining the Court to consideration of the facts before it, parties gain certainty in cases typical of a particular offence, but at the expense of certainty in cases outside the norm.

The use of “reasonable hypotheticals” also seems to undermine the Mackay v. Manitoba, [1989] 2 SCR 357 line of cases, which required that constitutional adjudication had to rest on an appropriate factual record, and that “Charter decisions should not and must not be made in a factual vacuum”. While the Court may take judicial notice of some of the broad social facts in relation to the impugned statute, which could allow the Court to rely on “reasonable hypotheticals”, the Court should be prudent to do so when, as discussed by the minority, there was a total absence of a case where the Crown’s discretion was improperly exercised, leading to a cruel and unusual punishment.