Nothing Is Always Absolutely So

This morning, the Supreme Court has delivered its decision in R. v. Nur, 2015 SCC 15, striking down as “cruel and unusual,” and therefore contrary to s. 12 of the Charter, a mandatory minimum sentence for the simple possession of a restricted or prohibited firearm that is either loaded or stored with easily accessible ammunition, and not properly licensed, where the offence is prosecuted by indictment. The Chief Justice wrote for a six-judge majority, applying the Court’s long-standing approach, in mandatory minimum s. 12 cases, of inquiring into the “gross disproportionality” of the mandatory minimum sentence not only as applied to the offender challenging it, but also as in other cases. Justice Moldaver wrote a forceful dissent (with the agreement of Justices Rothstein and Wagner), suggesting that while even on the majority’s approach the sentence at issue is not unconstitutional, a different one is required in this case.

* * *

The way to analyze the constitutionality of mandatory minimum sentences is, as the Chief Justice explains, first, “to determine what constitutes a proportionate sentence for the offence,” and “[t]hen, [to] ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence.” [46] The question is, however, for whom must the sentence be proportionate: should the court only consider its proportionality for the actual offender before it, or can consider others? The Court had previously adopted the latter approach, described as relying on “reasonable hypotheticals,” but the various governments that intervened in this case argued that it was inconsistent and unworkable.

Not so, the Chief Justice finds. For one thing, the Charter jurisprudence outside the s. 12 realm supports the idea that a court can and should consider the potential violations of the rights of persons other than those before it in determining the constitutionality of a statute. (Interestingly, the Chief Justice does not cite the recent decision in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, where the majority adopted this approach ― but the concurrence, which she wrote, refused to do so!) And for another, it is possible to analyze the application of s. 12 in “reasonably foreseeable” cases ― that is to say, those whose circumstances can reasonably be said to fall within the scope of the impugned provision, whether they have in fact occurred in the past or not, provided that they are not “remote” or “far-fetched” and, in particular, that they do not involve implausibly angelic offenders.

Here, the Chief Justice finds, the impugned provision is indeed capable of reasonably applying to circumstances in which the mandatory minimum punishment it requires would be grossly disproportionate and therefore cruel and unusual, such as the situation, imagined by the Court of Appeal, “where a person who has a valid licence for an unloaded restricted firearm at one residence, safely stores it with ammunition in another residence” [79] (to which the licence does not extend). Such situations would not be “truly criminal” ― instead, they more akin to those normally punished by regulatory offences:

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 Criminal Code and legitimate expectations in a free and democratic society. [83]

The Chief Justice then rejects a contention accepted by Justice Moldaver: that the Crown’s ability to prosecute those accused of the offence at issue using a summary procedure that does not attract a mandatory minimum (and indeed provides for a maximum punishment of only one year’s imprisonment) means that the mandatory minimum sentence will not, in practice, be imposed in those cases in which it is disproportionate. According to the Chief Justice, this would take away the “inherently judicial function” [87] of sentencing away from judges, and confer it to prosecutors. While prosecutors should “screen out some offences at the lower end of the spectrum captured” by a provision that gives them the choice between proceeding summarily or by indictment, the fact that they can do so is not enough to insulate the provision from Charter scrutiny. The Chief Justice insists that

one cannot be certain that the discretion will always be exercised in a way that would avoid an unconstitutional result. Nor can the constitutionality of a statutory provision rest on an expectation that the Crown will act properly. [95]

Besides, prosecutors could use the threat of an indictment, and the mandatory minimum that it entails, as a “trump card in plea negotiations.” [96]

Having disposed of some other questions that I skip here, the Chief Justice moves on to the question whether the infringement of s. 12 of the Charter can be justified under s. 1. After observing that

[i]t will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1, [111]

the Chief Justice nevertheless inquires into the existence of a rational connection between Parliament’s objectives and the imposition of a mandatory minimum sentence. Remarkably, she concludes, on the basis of “empirical evidence,” that “[t]he government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes.” [113] Nonetheless, “a rational connection exists between mandatory minimum terms of imprisonment and the goals of denunciation and retribution.” [115] However, the imposition of a mandatory minimum for a broad offence that is known to capture some conduct that is not especially blameworthy is not minimally impairing of the s. 12 right, and thus cannot be justified.

* * *

Justice Moldaver’s dissent denies the appropriateness of the “reasonably foreseeable cases” framework favoured by the majority for assessing the constitutionality of mandatory minimum sentences for “hybrid” offences that can be prosecuted either by indictment or summarily. While he agrees that imposing a harsh mandatory minimum sentence on a person whose offence is of the “licensing” variety would be grossly disproportionate, he concludes that “experience and common sense provide proof positive” that it is not reasonable to expect that this would ever happen. There have been no such cases so far, and prosecutors can be counted on to make sure that there will not be.

Justice Moldaver then makes what seems to be a digression on the topic of “respecting Parliament,” claiming that “[g]un crime is a matter of grave and growing public concern.” [131] He refers to what he describes as “compelling testimony from law enforcement about the devastating impact of gun violence across Canada,” [131] heard by Parliamentary committees, and says that “it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture.” [132] Parliament chose to impose substantial sentences for the possession of “inherently dangerous” unlicensed firearms, while leaving open the safety valve of summary proceedings in some cases where these sentences will prove manifestly unjust. It is entitled to have its way.

In any case, says Justice Moldaver, the better way of approaching cases such as this is not by speculating as to what is and what is not “reasonably foreseeable,” but by asking whether the possibility of summary proceedings is an adequate “safety valve” that can help avoid grossly disproportionate sentences in the unusual, least blameworthy cases. If, as here, it is, then, should the prosecution nonetheless proceed by indictment in such a case, the court can find that this decision amounts to an abuse of process, and impose a sentence below the mandatory minimum by of a remedy under s. 24(1) of the Charter. Because the prosecution’s reasons for proceeding by way of indictment are irrelevant to a finding of abuse of process, this approach provides adequate protection to the offenders for whom the mandatory minimum would be excessive. And as, as the power to find that the indictment was inappropriate and thus an abuse of process rests with the judge, this approach does not amount to a renunciation of judicial control over sentencing.

* * *

On the issue of the analytical framework to adopt in s. 12 challenges to hybrid offences, Justice Moldaver’s argument seems powerful. Why bother with imaginary cases ― whether or not they are “reasonably foreseeable” when there is a “safety valve”? I agree that, on Justice Moldaver’s approach, it is indeed the judge, and not the prosecutor who has the last word on the constitutionality of any sentence to be imposed. And the parallel he makes to the approach the Supreme Court took in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, where the Chief Justice, for a unanimous Court, preferred focusing on the constitutionality of an individualized decision made pursuant to a “safety valve” provision is quite compelling. The Chief Justice tries to distinguish Insite on the basis that it was an administrative decision, not one made in an adversarial, criminal-law context, but I am not convinced that the distinction matters very much. What is more questionable is just how well the Insite decision itself fits into the broader context of Canadian constitutional law. It’s an issue I (sort of) flagged just a few weeks ago, as it happens, although I hadn’t thought of its relevance to this case.

That said, not being an expert in criminal procedure, I find it difficult to come to a firm conclusion on the question whether the safeguards proposed by Justice Moldaver will be sufficient to ensure that no persons who do not deserve to be sentenced to the mandatory minimum will in fact be so sentenced. The advantage of the Chief Justice’s approach is, ultimately, that by eliminating the mandatory minimum altogether, it prevents some cases from slipping through the cracks. Not unlike a mandatory minimum itself, it may be a blunt instrument, but an appealing one for the institution who wields it.

Perhaps both the majority and the dissent are aware that their preferred methodologies will result in, respectively, some offenders benefiting from the elimination of the mandatory minimum despite it not being an unconstitutional sentence as applied to them, or some being subjected to it even though it is doubtful whether they should be. At least, this might help explain their excursions into empirical territory ― both of them in obiter and quite unnecessary. The Chief Justice, at least, backs up her claim that mandatory minimum sentences are ineffective. Justice Moldaver, by contrast, only refers to rhetorical claims about the dangers of gun crime, and not to any statistics.

This is, as I noted in my last post, not an uncommon problem in recent Supreme Court decisions, and it is striking just how easily these supported claims turn out to be wrong. An elementary Google search for “gun crime statistics Canada” turns up, as the very first result, a Statistics Canada report on the subject. This report shows that the number of “victims of firearm related violent crime” relative to population has been consistently declining from 2009 to 2012 (Chart 1), and that “firearm-related homicides” have been falling since the early 1990s, and even since the 1970s, occasional year-on-year spikes notwithstanding (Chart 3). In this context, Justice Moldaver’s professed alarm about gun crime is simply unfounded, and his calls for “respecting Parliament,” which allowed itself to be swayed by groundless alarmism ring hollow. (So does the Chief Justice’s assertion that “[g]un-related crime poses grave danger to Canadians,” [1] although it looks like an utterly insignificant throw-away.)

* * *

Ultimately, the respondents’ win on the constitutional issue does them no good. The majority finds that their own sentences are not actually disproportionate to their crimes, and upholds them. Parliament’s mandatory sentences turn out not to be very mandatory. Impressions about the prevalence of gun crime are unfounded. And legal victories sometimes offer no relief to the winners. As Sturgeon’s law has it, nothing is always absolutely so.

3 thoughts on “Nothing Is Always Absolutely So

  1. If I’m reading your assessment of the ruling correctly, I take it you do see the majority opinion as being on solid ground. Is that correct? I’m in a few discussion groups where posters are insisting that the Supreme Court is overreaching.

    • The way I see it, both the majority and the dissent are concerned about the injustice of applying the mandatory minimum to the “licensing-type” situations which the provision at issue can cover. They disagree about what mechanism is sufficient to prevent these injustices. As I say in the post, I am not confident enough to pronounce definitively on who is right on that, although in doubt I prefer an approach that is (possibly) over-protective to one that is (possibly) under-protective.

      Anyway, I’m not sure that the best reading of the disagreement here is as being about “restraint” or “overreaching,” despite the dissent’s invocation of “respecting Parliament.” Note, for example, that the dissent is not saying that we should abandon the “hypothetical” approach in the cases in which it was used so far, which involve straight indictable and not hybrid offences.

      If you can point me to some cogent argument to the effect that this is case is really about the role of the Court vis-à-vis Parliament, I’d be grateful. I’ve only seen John Ivison’s column, and found it not persuasive at all.

  2. Pingback: Their Eminences | Double Aspect

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