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The Supreme Court of Canada is to rule Tuesday morning on another part of the Harper government's tough-on-crime agenda. The court is deciding two appeals involving mandatory minimum sentences for gun crimes.Sean Kilpatrick/The Canadian Press

In a major test of the Conservative government's tough approach to crime and sentencing, the Supreme Court of Canada will rule Tuesday on whether mandatory minimum jail terms for gun possession are cruel and unusual punishment, and therefore unconstitutional.

A case before the court involves a three-year minimum sentence for illegal possession of a firearm that is loaded or with ammunition nearby. Hussein Nur was 19 when convicted after he tossed away a semi-automatic gun as police approached a youth centre in Toronto. The gun could fire all 24 of its bullets in 3 1/2 seconds.

But the ruling will turn on a controversial approach in which judges try to invent a "reasonable hypothetical" case in which the mandatory jail term would be grossly disproportionate to the actual crime. Since the earliest days of the 1982 Charter of Rights and Freedoms, it is the nature of the law that is at issue, not simply whether it fits the individual who is on trial.

The Ontario Court of Appeal had no problem inventing such a hypothetical case when confronted by the three-year mandatory minimum jail term for illegal gun possession, and five years for illegal gun possession for repeat weapons offenders.

A trial judge said 40 months was reasonable for Mr. Nur's crime of illegal possession, and the Ontario Court of Appeal said anywhere from two years less a day in provincial reformatory to three years in federal prison was fair. But then the appeal court considered a hypothetical case and struck down the law by a count of 5-0 as a violation of the Charter's protection against cruel and unusual punishment. In a separate case, it also struck down a five-year minimum sentence for illegal possession of a firearm when the individual has been previously convicted of a serious weapons-related offence. Both minimum sentences took effect in 2008.

The appeal court's "reasonable hypothetical" case involves an otherwise law-abiding gun owner with a registered licensed weapon who keeps the weapon safely stowed at a cottage, with ammunition in the next room. But the licence requires the owner to keep the gun at home, not at the cottage.

The "reasonable hypothetical" test is the court's way of emphasizing the notion "that an unfair law for some people is an unfair law, period," said Benjamin Berger, who specializes in criminal law at Osgoode Hall Law School.

The prosecution pointed out there had been no reported cases like the one described by the appeal court. And the federal Attorney-General argued in court documents that the Ontario Court of Appeal did not appreciate the gravity of the crimes at issue.

"Parliament seeks to deter, denounce and punish those who commit this dangerous conduct to avoid risk to the public before harm occurs," it said.

The government has passed dozens of mandatory minimum sentences for crimes related to guns, drugs and sex offences, limiting judges' discretion to decide what a fitting sentence is in an individual case. There has never been a presumption in Canadian law that minimum sentences are unconstitutional, but they were relatively unusual before 2006, when the Conservative government came to power.

Prof. Berger called the two cases before the Supreme Court the "clearest, sharpest point of principled conflict" between Ottawa and civil libertarians on the government's crime agenda. "We're going to get a clear-eyed sense of the Supreme Court of Canada's take on the momentous change this government has been bringing in around sentencing and punishment in Canada," he said.

The government has not fared well on criminal-law cases in the past year and a half. The Supreme Court unanimously struck down prostitution laws and a ban on assisted suicide. The court was also unanimous in softening the impact of the Truth in Sentencing Act, a centrepiece of the government's crime agenda, by insisting that thousands of offenders detained before their trial have recourse to generous extra credit for the time they served. It unanimously struck down a law that toughened parole rules retroactively for white-collar criminals. And it threw out a law that made it difficult for prisoners to contest the conditions of their detention.

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