In R. v. Nur, 2013 ONCA 677, the mandatory minimum penalty under Criminal Code section 95 was found to offend section 12 of the Charter which protects against cruel and unusual punishment.

The law as drafted forced taxpayers to finance 3 years of incarceration for people who literally pose no threat to anyone: the section would have applied to law-abiding gun owners who happen to step briefly outside the terms of their license in the same way it would to a maniac taking a loaded gun to a daycare center.

The Court’s analysis of course was not concerned with the economic calamity such laws create.

In R. v. Nur the result flowed from analysis of a reasonable hypothetical fact pattern, such as the otherwise law-abiding gun owner who would be equally caught by the law. Mr. Nur the appellant, a first offender, was found to deserve a significant jail term against which the mandatory minimum was not found to be cruel and unusual or “grossly disproportionate”.

The Court noted that “[u]ntil relatively recently, mandatory minimum jail terms were a rarity in Canadian criminal law”. Equally though, “Simply because mandatory minimums restrict judicial discretion, long the centrepiece of the sentencing process in Canada, does not mean that they offend the constitutional norm in s. 12.”

Such findings of unconstitutionality are rare. Neither the Court of Appeal nor the Supreme Court had made such a finding since 1987 when the mandatory minimum sentence of seven years for importing narcotics was struck down. (In that case, R. v. Smith, a person bringing a joint of marijuana into Canada faced the same 7 year minimum as a professional cocaine mule carrying several pounds of product.)

The R. v. Nur case does not signal judicial disagreement with the so-called ‘tough on crime’ agenda. It simply identifies that this particular law was so ‘tough’ on people who pose no risk of harm to anybody that it cannot be justified or permitted under the Charter of Rights. Again, the insanity of forcing taxpayers to finance 3 years of incarceration for people who literally pose no threat to anyone had nothing to do with the Court’s decision.

The Court was appropriately disinterested in the politics or economics of the law noting that section 12 “is not intended to constitutionalize any particular penological policy or theory, or to prohibit any legislation that the court may see as unreasonable or falling short of a best practices standard.  Properly restrained judicial constitutional review accepts the primary law-making responsibility of legislatures by acknowledging the wide ambit of legislative choices available to elected officials”.  … “Different punishments can be justified using various theories of punishment.  … [no] theory enjoys a constitutional status.”

Writing for five members of the Court of Appeal for Ontario, Mr. Justice David Doherty concluded his pure and unassailable legal analysis by finding that “the cavernous disconnect between the severity of the offence as described in my reasonable hypothetical and a three-year penitentiary sentence is determinative of the s. 12 analysis.  The severity of the s. 95 minimum when compared to the range of sentences available for similar offences serves to confirm my conclusion.”

The Court also rejected the trial Judge’s finding that the law was sound because the mandatory minimum sentence only applied where the Crown elected to proceed by indictment and that the “reasonable exercise of Crown discretion would result in summary proceedings”. The Court’s rejection of Crown discretion as a safeguard is also heartening. As the USA experience has shown, that virtually unfettered power of the Crown, leveraged with mandatory minimum sentences, in many situations renders both the right to a trial and the role of the judiciary in sentencing proceedings largely irrelevant.

But this decision is limited to section 95 which cast a very broad net. It will not necessarily be easily applied to many of the other recently created mandatory minimum sentencing provisions. It does little if anything to alter Canada’s present trajectory towards the heart of the failed experiment in the USA which even so-called ‘tough on crime’ politicians in the ‘land of the free’ now recognise as having caused immeasurable social and fiscal harm .