Ontario Criminal

Charter of Rights

Mandatory sentence could rise to level of gross disproportionality

Accused pleading guilty to s. 95(1) of Criminal Code and other firearms offences. Police entering residence occupied by accused and seizing semi-automatic handgun and ammunition from accused’s residence. Section 95(2)(a)(ii) providing for five year mandatory minimum sentence where accused had been convicted and sentenced of second or subsequent offence enumerated in s. 84(5)(a). Accused having been convicted and sentenced of s. 85(4)(a) offences on two prior occasions. Accused having been previously convicted of firearms offences in relation to serious robbery of employment agency using imitating firearm. Accused having been convicted of breaching s. 117.01(1) prohibition order by possessing ammunition. Crown having proceeded by indictment for current and prior offences thus triggering five year mandatory minimum. Sentencing judge dismissing accused’s ss. 7, 9 and 12 Charter claims that five years was grossly disproportionate with reference to gravity of accused’s offences. Sentencing judge arriving at global sentence of seven years. Accused appealing sentence and reasserting Charter claims that mandatory sentence at issue violated ss. 7 and 12 of Charter. Appeal dismissed and s. 95(2)(a)(ii) declared of no force and effect for violating s. 12 of Charter in manner not saved by s. 1. Mandatory sentence of five years did not amount to cruel and unusual punishment in accused’s circumstances given gravity of offences. Mandatory sentence could rise to level of gross disproportionality applying reasonable hypothetical circumstance. Hypothetical circumstance would involve offender where s. 95(1) offence best characterized as regulatory breach with no unlawful or criminal purpose. Previously held that mandatory three year sentence for first s. 95(1) offence breached s. 12 in hypothetical case of “regulatory” offender with low moral blameworthiness. “Regulatory” breach would entail offender who lawfully possessed firearm but stored or placed it in unauthorized manner but with no unlawful or criminal purpose. Thus five year mandatory sentence also breached s. 12 in modified hypothetical where offender had dated prior offence.

R. v. Charles (Nov. 12, 2013, Ont. C.A., Doherty J.A., S.T. Goudge J.A., E.A. Cronk J.A., R.A. Blair J.A., and M. Tulloch J.A., File No. CA C54111) Decision at 102 W.C.B. (2d) 441 was affirmed.  110 W.C.B. (2d) 264.

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