Ontario Criminal

Charter of Rights

Minimum sentence grossly disproportionate in hypothetical circumstance of responsible gun owner

Accused pleaded guilty to possessing loaded semi-automatic handgun contrary to s. 95. Police recovered handgun thrown on ground by accused while investigating threatening situation at community centre. Trial judge not finding accused was involved in threats, and only that he came into possession at some point before discarding it. Trial judge holding accused was youthful first offender with potential and community support. Crown proceeding by indictment and accused challenging mandatory minimum three-year sentence for violating ss. 7, 12, and 15 of Charter. Trial judge dismissing Charter claims, holding upper reformatory sentence appropriate even absent mandatory minimum. Accused appealing 40 month sentence imposed. Sentence affirmed but three year mandatory minimum held to be of no force and effect for violating s. 12. Section 95 criminalized broad range of conduct from “true crime” to “regulatory” offences amounting to knowing breach of term of licence by otherwise responsible gun owner. Three year minimum not cruel and unusual for true crime offences given scourge of gun related violence prompting legislative reform. Minimum sentence not grossly disproportionate in case of accused who would have received close to three year sentence absent mandatory penalty. Minimum sentence grossly disproportionate in reasonable hypothetical circumstance of responsible gun owner who knowingly safely stored firearm in place not permitted by licence. Section one could not be applied to save breach found to amount to intolerable, grossly disproportionate sentence.

R. v. Nur (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 C54701) 110 W.C.B. (2d) 479.

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