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The judges of the Supreme Court of Canada are shown in Ottawa on Feb. 10, 2015. (BLAIR GABLE/REUTERS)
The judges of the Supreme Court of Canada are shown in Ottawa on Feb. 10, 2015. (BLAIR GABLE/REUTERS)

Court strikes 'blunt instrument' law of mandatory sentencing Add to ...

The Supreme Court has delivered a major blow to the Conservative government’s crime agenda, striking down a mandatory minimum sentence for illegal gun possession in a way that suggests other laws could also fall.

The court ruled 6-3 on Tuesday that mandatory minimum jail sentences of three years for illegal gun possession, and five years for possession by people with repeat weapons offences, amount to cruel and unusual punishment, and are unconstitutional.

The majority ruling highlights how deeply at odds the government is with the country’s highest court. Adding salt to Ottawa’s wounds, Chief Justice Beverley McLachlin wrote the majority ruling. Prime Minister Stephen Harper clashed publicly with Chief Justice McLachlin last year after a series of major decisions went against his government.

In an election campaign this fall, the government is expected to highlight what it is doing to protect public safety, and the ruling could weaken that argument. Since 2006, the Conservatives have created 60 mandatory minimum jail terms for guns, drugs, sex offences and other crimes, according to the justice department, helping to boost the number of federal prisoners to record heights even as crime rates dropped to 50-year lows. Some of those minimum terms could now be challenged and struck down.

The federal Attorney-General argued that mandatory sentences deter crime, and that in less serious gun-possession cases, prosecutors may opt for a proceeding that carries a maximum penalty of only one year in jail. But the majority was vociferous in rejecting that argument, saying that so much discretion in the hands of prosecutors could lead to wrongful convictions as innocent people plead guilty rather than face more serious proceedings, and usurps the role of judges.

“Sentencing is inherently a judicial function,” Chief Justice McLachlin wrote.

Justice Minister Peter MacKay said the government is reviewing the ruling, and will continue to be tough on those who commit serious crimes. But the logic the majority used to reach its decision makes other government laws especially vulnerable.

The court used a controversial principle from the early years of the 1982 Charter: the “reasonable hypothetical” case. In the appeals on which the court was ruling, lawyers for two men convicted by lower courts, including a 19-year-old with a clean record, did not argue that the minimum sentences were unfair to their clients. They argued they could be unfair to others.

The principle stems from a 1985 case, R v. Big M Drug Mart Ltd., in which a company was charged for opening on a Sunday. The court accepted the company’s argument that the law discriminated against Jews and Seventh-Day Adventists. Then-chief justice Brian Dickson, an appointee of Liberal prime minister Pierre Trudeau, wrote that the nature of the law matters more than the individual case. Two years later, in R v. Smith, the court struck down a mandatory minimum jail term of seven years for importing illegal drugs, arguing that it could also apply to a hypothetical student driving home from the United States with a single joint.

Several provinces intervened in the gun-possession cases to argue for a restricted use of the reasonable-hypothetical case, and British Columbia wanted it scrapped. But the court said it was foreseeable that an otherwise law-abiding gun owner who stored a firearm in a dwelling contrary to the terms of his licence could go to prison for three years. The minority said striking down the 2008 law based on such a hypothetical case lacked common sense; it accepted prosecutorial discretion as a safeguard.

The ruling revealed that judicial activism remains controversial within the court. The minority wrote, under the heading “Respecting Parliament,” that gun crime is a grave concern, and “it is not for this Court to frustrate the policy goals of our elected representatives, based on questionable assumptions or loose conjecture.” Justice Michael Moldaver, a former Toronto defence lawyer considered the court’s leading conservative on crime, wrote for the minority, joined by Justice Marshall Rothstein and Justice Richard Wagner.

Françoise Boivin, the New Democratic Party’s justice critic, said the party supports serious sentences for serious gun crimes, but added that Mr. MacKay “needs to explain why there’s a clear pattern of this government ramming through obviously flawed bills that just don’t stand up.”

The ruling sent a message to the government that a U.S.-style approach to criminal justice may not fit with Canadian legal traditions – even when the mandatory jail term is just three years.

“The majority decision is a rejection of American-style access to criminal justice where there’s a huge amount of discretion in the hands of the prosecutor,” Vancouver lawyer Eric Gottardi, chair of the criminal-justice section of the Canadian Bar Association, which represents 38,000 lawyers, said in an interview.

It is also yet another demonstration of the gulf between the government and the court. “There’s a mismatch in the works between some of the government’s operating assumptions about how punishment should be delivered in legislation, and some of the core principles of sentencing and punishment that have developed over the years,” Osgoode Hall law professor Jamie Cameron said in an interview.

OTTAWA vs. THE COURTS

Canada v. Federation of Law Societies of Canada, Feb. 13, 2015:

A federal law passed by a Liberal government and expanded by Conservatives in 2006 required lawyers to report certain financial transactions involving their clients.

Ruling: 9-0 that the law was unconstitutional because it treated lawyers as unwitting agents of the state.

R v. Carter, Feb. 6, 2015:

A federal law predating the Conservatives made it a crime to help another person die by suicide. The federal government defended the law in court.

Ruling: 9-0 that the law violated the rights of chronically ill, suffering people to have a say over their “passage into death.”

R v. Summers, April 11, 2014:

Under the Truth in Sentencing Act, the government tried to stop judges from routinely giving extra credit to offenders for the time they serve in custody before sentencing.

Ruling: 7-0 that judges have discretion under the act to routinely give 1.5 days credit for every day served.

R v. Khela, March 27, 2014:

A prisoner wanted to challenge his transfer to a maximum-security jail from a medium-security one. The federal government said he had to go through a slow process that involved the Federal Court.

Ruling: 8-0 that prisoners’ ancient right to habeas corpus gives them prompt access to superior courts in whatever province they are in.

R v. Whaling, March 20, 2014:

The government took away access to early parole from non-violent, first-time federal offenders, including those already sentenced.

Ruling: 8-0 that the law must not be applied retroactively.

Canada v. Bedford, Dec. 20, 2013:

Three separate laws banned living off the avails of prostitution, keeping a bawdy house and street soliciting. The laws predated the current government but it defended them in court.

Ruling: 9-0 that the laws violated sex-workers’ rights by endangering their lives.

Canada v. PHS Community Services Society, Sept. 30, 2011:

The government tried to close a supervised-injection clinic for drug addicts.

Ruling: 9-0 that the government’s stated war on drugs does not justify policy decisions that could contribute to the deaths of addicts.

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