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Newly appointed Justice Michael Moldaver takes part in a ceremony at the Supreme Court of Canada in Ottawa November 14, 2011. REUTERS/Blair Gable (CANADA - Tags: POLITICS CRIME LAW)

BLAIR GABLE/REUTERS

Sometimes, even the Supreme Court gets it wrong. On Tuesday, it did just that on the issue of mandatory minimum sentences in firearms cases. The majority of the court voted to strike down the mandatory minimum sentences of three years for gun possession, and five years for possession by repeat weapons offenders. But the court was split, six votes to three. And in this case, the minority was right.

The Harper government created these laws to send a clear message that illegal possession of firearms is a serious criminal offence, deserving serious punishment. It is, and it should be. In fact, the two separately accused men in the cases before the court, Hussein Jama Nur and Sidney Charles, did not claim that they were innocent, nor did they argue that they would have suffered "grossly disproportionate" punishment, if their jail terms had been exactly equal to the mandatory minimums. The Supreme Court did not acquit them or overturn their sentences.

Instead, the court's six judge majority decided to imagine a hypothetical accused person who was not in front of the court. Imagine, said the majority, a situation where someone had a legal firearms licence – but for reasons of absent-mindedness or misunderstanding, this person left the weapon and ammunition in non-secured place. Or imagine a spouse of a deceased firearm-owner, knowing little or nothing about the duties of gun possession, making a similar, innocent error. Would these people be deserving of a mandatory minimum sentence of three years?

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On that basis, the majority, led by Chief Justice McLachlin, struck the law down.

Justice Michael Moldaver wrote for the minority of three. He pointed out that any sensible prosecutor would not indict a merely absent-minded defendant, but would use a simple summary procedure – which wouldn't result in any mandatory minimum jail sentence, but rather in a fine. Any other result would be remote and far-fetched.

Justice Moldaver got it right. The law should have been upheld. But the only place this case will be reargued is in law school classrooms. There's no appeal from the Supreme Court.

But there is an answer to it: The government can redraft the wording of the law, making it crystal clear that illegal firearms possessors, not negligent legal owners, are its target. The Supreme Court didn't strike down mandatory minimum sentences. It insisted that they be carefully tailored to the crime. Make it so.

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