R. v. Nur, 2015 SCC 15 (Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Sentencing — Mandatory minimum sentence)

On appeal from the judgments of the Ontario Court of Appeal (2013 ONCA 677 and 2013 ONCA 681) dated November 12, 2013.

N and C were convicted of possessing loaded prohibited firearms contrary to s. 95(1) of the Criminal Code. They were sentenced under s. 95(2)(a)(i) and (ii) to three and five year mandatory minimum imprisonment terms, respectively. In N’s case, the trial judge held that the three year minimum sentence imposed by s. 95(2)(a)(i) did not offend either s. 12 or 15 of the Charter. However, he concluded that the two year gap between the one year maximum sentence if the Crown proceeded summarily and the three year minimum sentence if the Crown proceeded on indictment offended s. 7 because it was arbitrary and was not justified under s. 1. Nevertheless, the trial judge held that N was not personally affected by the gap, and therefore dismissed the s. 7 claim.

In C’s case, the judge also dismissed the s. 12 challenge. She held that the five year mandatory minimum sentence imposed by s. 95(2)(a)(ii) was not grossly disproportionate for C, in light of the gravity of his crimes. She also held that C had failed to put forward any reasonable hypothetical cases in which the application of the five year mandatory minimum sentence would be grossly disproportionate.

The Court of Appeal held that the mandatory minimum terms of imprisonment in s. 95(2)(a) resulted in grossly disproportionate sentences in reasonable hypothetical cases at the licensing end of the s. 95 spectrum, and therefore held that they violate s. 12 of the Charter. However, the Court of Appeal held that the sentences imposed on N and C were appropriate and should be upheld.

Held (6:3): The appeals should be dismissed.

Per McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ.:

The mandatory minimum sentences imposed by s. 95(2)(a)(i) and (ii) of the Criminal Code violate s. 12 of the Charter and are null and void under s. 52 of the Constitution Act, 1982. However, N and C’s sentences were appropriate and are upheld. In most cases, including those of N and C, the mandatory minimum sentences of three and five years do not constitute cruel and unusual punishment. But in some reasonably foreseeable cases, they may do so.

When a mandatory minimum sentencing provision is challenged under s. 12, two questions arise. The first is whether the provision imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications would impose cruel and unusual punishment on other offenders. This approach is consistent with the long and settled jurisprudence of this Court relating to Charter review generally and to s. 12 review in particular, is workable, and provides sufficient certainty. There is no reason to overrule this jurisprudence, especially as the effect would be to diminish Charter protection.

Where mandatory minimum sentencing laws are challenged under s. 12 on the basis of their reasonably foreseeable application to others, the question is what situations may reasonably arise, not whether such situations are likely to arise in the general day to day application of the law. Only situations that are remote or far fetched are excluded.

In this case, N and C do not argue that the mandatory minimum terms of imprisonment in s. 95(2) are grossly disproportionate as applied to them. Rather, they argue that those mandatory minimum terms of imprisonment are grossly disproportionate as they apply to other offenders.

Turning first to s. 95(2)(a)(i), the question is whether the three year minimum term of imprisonment would result in grossly disproportionate sentences in reasonably foreseeable cases. The answer to this question is yes.

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At that far end stands, for example, 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. Given the minimal blameworthiness of this offender and the absence of any harm or real risk of harm flowing from the conduct, a three year sentence would be disproportionate. Similar examples can be envisaged. The bottom line is that s. 95(1) foreseeably catches licensing offences that involve little or no moral fault and little or no danger to the public.

Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun owners from making mistakes, to be sure. But 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 set out in the s. 718 of the Criminal Code and legitimate expectations in a free and democratic society. As the Court of Appeal concluded, there exists a cavernous disconnect between the severity of the licensing type offence and the mandatory minimum three year term of imprisonment. Consequently, s. 95(2)(a)(i) breaches s. 12 of the Charter.

As for s. 95(2)(a)(ii), there is little doubt that in many cases those who commit second or subsequent offences should be sentenced to terms of imprisonment, and some for lengthy terms. The seven year term of imprisonment imposed on C is an example. But the five year mandatory minimum term of imprisonment would be grossly disproportionate for less serious offenders. For them, the five year term goes far beyond what is necessary in order to protect the public, to express moral condemnation of the offenders, and to discourage others from engaging in such conduct. Therefore, s. 95(2)(a)(ii) violates s. 12 of the Charter.

These s. 12 Charter violations are not justified under s. 1. Although the government has not established that mandatory minimum terms of imprisonment act as a deterrent, a rational connection exists between mandatory minimums and the goals of denunciation and retribution. However, the government has not met the minimal impairment requirement under s. 1, as there are less harmful means of achieving its legislative goal. In addition, given the conclusion that the mandatory minimum terms of imprisonment in s. 95(2) when the Crown proceeds by indictment are grossly disproportionate, the limits are not a proportionate justification under s. 1. It follows that the mandatory minimum terms of imprisonment imposed by s. 95(2) are unconstitutional.

This conclusion makes it unnecessary to consider N and C’s arguments that s. 95(2) violates s. 7 of the Charter.

Per Rothstein, Moldaver and Wagner JJ. (dissenting):

The reasonable hypothetical approach under s. 12 of theCharter does not justify striking down s. 95(2) of the Criminal Code. The hypothetical licensing type cases relied upon by the majority are not grounded in experience or common sense. First, experience shows that there is not a single licensing type case over the entire history of s. 95(2) where the imposition of a mandatory minimum could be regarded as grossly disproportionate. Moreover, the parties cannot identify a single case where an offender who has committed a licensing type offence has been prosecuted by indictment, thus attracting a mandatory minimum. In fact, in the only licensing type case raised by the parties, the Crown proceeded summarily.

Second, an application of the reasonable hypothetical approach which assumes that the Crown will elect to proceed by indictment when the fair, just, and appropriate election would be to proceed summarily does not accord with common sense. The Crown election has been purposely integrated into the legislative scheme and is a clear expression of Parliament’s intent to confer on prosecutors the ability to divert the least serious licensing type cases into summary proceedings. It is a mistake to shunt this factor aside when crafting reasonable hypotheticals.

Parliament’s choice to raise the mandatory minimums in s. 95 reflects valid and pressing objectives, and it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture. This Court has warned against the use of hypotheticals that are “far fetched or only marginally imaginable.” The hypothetical scenario advanced by the majority stretches the bounds of credulity. It is not a sound basis on which to nullify Parliament’s considered response to a serious and complex issue.

The majority identifies an alternative scheme that, in its view, would accomplish Parliament’s goals without offending s. 12 of the Charter. Under this scheme, the impugned mandatory minimums could be enacted as part of a revised offence containing an additional element beyond the existing elements of s. 95(1). For example, the offence could be limited to “those engaged in criminal activity” or to “conduct that poses a danger to others.” The problem with this suggestion is two fold.

First, it is discordant with Parliament’s true objective in creating mandatory minimums for the unlawful possession of a loaded or readily loaded prohibited or restricted firearm. Section 95 targets the simple possession of guns that are frequently used in gang related or other criminal activity. Parliament has concentrated on simple possession for a reason: firearms — and particularly the firearms caught by s. 95 — are inherently dangerous. Outside of law enforcement, prohibited and restricted firearms are primarily found in the hands of criminals who use them to intimidate, wound, maim, and kill. Given the inherent danger associated with these guns, it was open to Parliament to conclude that their simple possession should attract a significant mandatory custodial sentence.

Second, adding new elements to the offence would render the mandatory minimums under inclusive. Limiting the offence to “those engaged in criminal activity” could exclude cases where the imposition of a mandatory minimum is uncontroversial. Likewise, limiting the offence to “conduct that poses a danger to others” could exclude certain situations to which the mandatory minimums in s. 95 are intended to apply.

In sum, the reasonable hypothetical approach does not justify striking down the impugned mandatory minimums. In any event, a different analytical framework is required here. To date, this Court’s s. 12 jurisprudence has only considered the constitutionality of mandatory minimum sentences in the context of straight indictable offences. This is the first time it has examined their constitutionality in a hybrid scheme, which calls for a different analytical framework under s. 12.

The proper analytical framework has two stages. First, the court must determine whether the hybrid scheme adequately protects against the imposition of grossly disproportionate sentences in general. Second, the court must determine whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for a particular offender. This two stage approach offers a more compelling framework than the use of reasonable hypotheticals to resolve a s. 12 constitutional challenge to a mandatory minimum sentence in a hybrid scheme.

The first stage of the analysis has two parts. First, the court must determine the sentencing range for indictable convictions under the sentencing regime that existed prior to the enactment of the impugned mandatory minimum. This is done with reference to actual sentences found in reported cases. The court must then isolate the low end of that sentencing range. This low end serves as an objective indicator of appropriate sentences for the least serious instances of the offence that would realistically be prosecuted by indictment.

Second, the court must compare the impugned mandatory minimum with the low end of the prior range. If the mandatory minimum is grossly disproportionate to sentences at the low end, then the scheme does not adequately protect against the imposition of grossly disproportionate sentences in general. On the contrary, it puts an identifiable set of offenders directly at risk of cruel and unusual punishment in violation of s. 12. The proper remedy here lies under s. 52(1), and the mandatory minimum must be struck down.

If the scheme itself is upheld, the court must move on to the second stage and determine whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for the particular offender before the court. In those rare cases where the Crown’s decision to proceed by indictment leads to a grossly disproportionate sentence, a remedy will lie under s. 24(1). The focus here is on the constitutionality of state action, and not the law itself. Specifically, the state action at issue is the Crown election, which is a matter of core prosecutorial discretion reviewable only for abuse of process.

A decision to prosecute by indictment that would give rise to a grossly disproportionate sentence represents a per se abuse of process in violation of s. 12. Imposing such a sentence would “undermine society’s expectations of fairness in the administration of justice”. Grossly disproportionate sentences are “so excessive as to outrage standards of decency” and are “abhorrent or intolerable” to society. They constitute a breach of an accused’s fundamental right to be free from cruel and unusual punishment, and are incompatible with the integrity of our justice system. An exercise of prosecutorial discretion — be it by design or effect — that leads to such an outcome must be regarded as a per se abuse of process.

The offender bears the burden of proof to show an abuse of process at the sentencing phase. If the offender discharges this burden of proof, he or she is entitled to a remedy under s. 24(1). In most cases, the appropriate and just remedy would be a sentence reduction below the mandatory minimum.

The responsibility to ensure constitutional compliance under the proposed framework rests with judges, and not with prosecutors. The framework includes two checks to ensure compliance with s. 12, neither of which relies on prosecutorial discretion. First, if the sentencing scheme itself is challenged, the judge may strike it down as unconstitutional. Second, if an offender argues that the mandatory minimum would be grossly disproportionate in his or her case, the judge may find a per se abuse of process and grant a sentence reduction under s. 24(1).

In N’s case, Code J. found that, prior to the enactment of the three year mandatory minimum, the sentencing range for a first offence under s. 95 was a term of imprisonment between two years less a day and three years. Thus, the low end of the range is around two years less a day. The three year mandatory minimum for a first offence under s. 95(2) is not grossly disproportionate to this low end. Therefore, at the first stage, the mandatory minimum does not violate s. 12. N’s concession that a three year sentence is not grossly disproportionate in his case disposes of the second stage.

In C’s case, Backhouse J. did not refer to the sentencing range for a second or subsequent offence prior to the enactment of the five year mandatory minimum. Code J., however, noted that while the sentencing range for a first offence was between two years less a day and three years, much longer sentences were imposed for recidivists. It is clear, then, that a second or subsequent offence would have attracted a sentence considerably longer than three years — at the very least, in the range of four or five years. The present five year mandatory minimum is not grossly disproportionate to the previous low end of the range for second or subsequent offences under s. 95. Like N, C concedes that the mandatory minimum is not grossly disproportionate in his case.

In conclusion, neither the sentencing scheme itself, nor its application to N or C, offends s. 12 of the Charter. Moreover, s. 95 is neither arbitrary nor overbroad, and therefore does not offend s. 7 of the Charter.

Reasons for judgment of the majority written by McLachlin C.J. (LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ. concurring). Reasons for judgment of the minority written by Moldaver J. (Rothstein and Wagner JJ. concurring).

Neutral Citation 2015 SCC 15. Docket Nos. 35678, 35684

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15272/index.do