An Ontario court has struck down yet another mandatory minimum sentence for a firearms offence as unconstitutional using the hypothetical approach used by the Supreme Court of Canada in R. v. Nur.
“It is in a way an illustration of the sad state of affairs which exists in criminal law now because of the imposition on judges of mandatory minimum sentences,” says Toronto defence lawyer Aaron Harnett of the judge’s use of a reasonable hypothetical analysis in R. v. Shobway to find a mandatory minimum sentence unconstitutional despite his conclusions on the specific circumstances of the offender.
“It now is causing jurists to have to engage in some fairly esoteric exercises to undo the damage of mandatory minimum sentences.”
In considering the constitutional issue in Shobway on Aug. 18, Justice Grant Radley-Walters of the Ontario Court of Justice ruled that the minimum three-year prison sentence in the Criminal Code for transferring a firearm violates the Charter of Rights and Freedoms.
“I find that s. 99(2) like s. 95 (1) foreseeably catches licensing offences which involve little moral fault and little danger to the public,” he wrote, referencing both the offence considered in the case before him and the one at issue in Nur.
“I further agree that 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 as set out in s. 718 of the Criminal Code,” he added. “I conclude that s. 99(2)(a) breaches s. 12 of the Charter.”
The Criminal Code’s s. 99 (2) (a) spells out a minimum sentence of three years for anyone convicted of transferring a firearm. The ruling concerned a Charter application by Arnold Shobway, a Petawawa, Ont., man who had pleaded guilty in June 2014 to transferring two restricted firearms the previous year.
According to the decision, Shobway, a 26-year-old Ojibway man, had grown up on the Walpole Island Reservation “in an environment of alcohol, drug abuse and poverty” and had drunk alcohol regularly since the age of 16. He has also taken OxyContin, cocaine and other street drugs, selling his property to “feed his addiction,” wrote Radley-Walters.
Eventually, Shobway, who had joined the Canadian Forces in about 2009, sold two handguns, including his service gun, to his drug dealer for money he owed him.
Upon his arrest in November 2013 on criminal charges, police required Shobway to surrender his handguns, but he was unable to do so because he had already sold them. “He admitted this to the police and was co-operative,” wrote Radley-Walters. Police then found the handguns at the home of the drug dealer.
In his decision, Radley-Walters referred to Nur, a case in which Chief Justice Beverley McLachlin concluded that courts in s. 12 Charter cases should take into account how the minimum sentence affects not only the offender in the particular instance but also “reasonably foreseeable situations” involving “other persons who might reasonably be caught up by it.”
While the decision is from a lower court, criminal defence lawyer Janani Shanmuganathan of Derstine Penman in Toronto says it’s an important one nevertheless. Shobway, she says, “is a perfect illustration of the expansive scope of mandatory minimum sentences, particularly in the firearms regime. Such sentences . . . not only capture behaviour at the true-crime end of the spectrum but also behaviour that is tantamount to licensing infractions. The latter simply do not warrant long sentences and judges agree.”
When it comes to the sentence’s application to Shobway himself, wrote Radley-Walters, a number of factors brought forth by the defence argued for leniency, such as his background as the grandchild of residential school survivors and the fact that he had pleaded guilty and co-operated with police. On the other hand, when he sold the guns to a drug dealer, Shobway “knew or ought to have known that this was inherently dangerous to the community as those firearms would be used by the drug dealer to guard himself and his illegal drugs,” wrote Radley-Walters.
“I find that the Canadian society would not find a sentence of three years for this Applicant to be so excessive as to outrage their standards of decency and disproportionate to the extent that they would find the punishment abhorrent or intolerable,” the judge declared.
But it’s when the sentence applies to reasonably foreseeable situations that it violates the Charter, according to Radley-Walters. In the case of an army town like Petawawa, he noted, people could transfer guns in relatively innocent circumstances. “Soldiers . . . have returned with various firearms including handguns as souvenirs and trophies of war. When these soldiers die, their spouses and families may find themselves in possession of the soldier’s handgun and transfer them to other family members, thereby breaching the regulations and committing this same Criminal Code offence. . . . I find that s. 99 (2) . . . foreseeably catches licensing offences which involve little moral fault and little danger to the public. For these offences, three years imprisonment is grossly inappropriate to a fit and fair sentence.”
In 2008, the government increased the mandatory minimum sentence for firearm possession and trafficking to three years as part of its crime agenda. Shobway is the latest in a series of decisions on the constitutionality of the three-year sentence for firearms offences. In the 2012 Ontario Superior Court decision in R. v. Smickle, Justice Anne Molloy ruled that a three-year sentence for Leroy Smickle was unconstitutional. The Crown appealed, and the Ontario Court of Appeal heard that case along with several other firearms cases grouped together in 2013. It found the minimum three-year sentence unconstitutional. The Ontario and federal governments took the case of Hussein Nur and another convicted firearms offender, Sidney Charles, to the Supreme Court of Canada, which also found the sentence to be unconstitutional in April.
Whereas those cases dealt with the offence of firearms possession, Shobway may be the first time the court has found the sentence for firearms trafficking to be unconstitutional, says Shobway’s lawyer, Mark Huckabone of Huckabone O’Brien Instance Bradley Lyle in Pembroke, Ont. In preparing the case, he says, he could find precedents, such as Nur, that dealt with possession offences only.
In place of the minimum three-year sentence for Shobway, Radley-Walters gave a range of 12 to 18 months in his ruling. In a sentencing decision last week, he gave Shobway 15 months in prison, says Huckabone.
For her part, Shanmuganathan says the case shows the value of considering reasonably foreseeable situations. “In Nur, the Crown invited the Supreme Court to do away with the reasonable hypothetical inquiry. However, as is apparent in Shobway as was in Nur, it makes little sense to wait for the perfect offender to come before the court before striking down an unconstitutional law,” she says.
The issue, says Harnett, presents a challenge for the court. “The courts are trying to make sense of nonsense insofar as mandatory minimum sentences can cause great destruction to our principles of justice. The courts are stuck with those mandatory minimums and have a limited set of tools to try to undo the injustice that mandatory minimums can cause. This case is a good example of a court using those very complicated tools to arrive at a just verdict.”