Her Majesty The Queen Appellant v. Hussein Jama Nur, 2015 SCC 15

SUPREME COURT OF CANADA Citation: R. v.

Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 Date: 20150414 Docket: 35678, 35684 Between: Her Majesty The Queen Appellant and Hussein Jama Nur Respondent And Between: Attorney General of Canada Appellant and Hussein Jama Nur Respondent - and - Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Pivot Legal Society, John Howard Society of Canada, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Advocates’ Society, Canadian Bar Association, Canada’s National Firearms Association, Canadian Association for Community Living and African Canadian Legal Clinic Interveners And Between: Her Majesty The Queen Appellant and Sidney Charles Respondent And Between: Attorney General of Canada Appellant and Sidney Charles Respondent

- and - Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Pivot Legal Society, Canadian Civil Liberties Association, British Columbia Civil Liberties Association and Canadian Association for Community Living Interveners Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ. Reasons for Judgment: (paras. 1 to 120) Dissenting Reasons: (paras. 121 to 199) McLachlin C.J. (LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ. concurring) Moldaver J. (Rothstein and Wagner JJ. concurring) R. v.

Nur , 2015 SCC 15, [2015] 1 S.C.R. 773 Her Majesty The Queen Appellant v. Hussein Jama Nur Respondent - and - Attorney General of Canada Appellant v. Hussein Jama Nur Respondent and Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Pivot Legal Society, John Howard Society of Canada, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Advocates’ Society,

Canadian Bar Association, Canada’s National Firearms Association, Canadian Association for Community Living and African Canadian Legal Clinic Interveners - and - Her Majesty The Queen Appellant v. Sidney Charles Respondent - and - Attorney General of Canada Appellant v. Sidney Charles Respondent and Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Pivot Legal Society, Canadian Civil Liberties Association, British Columbia Civil Liberties Association and Canadian Association for Community Living Interveners Indexed as: R. v.

Nur 2015 SCC 15 File Nos.: 35678, 35684. 2014: November 7; 2015: April 14.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Cruel and unusual treatment or punishment — Sentencing — Mandatory minimum sentence — Firearms — Accused convicted of possessing loaded prohibited firearms — Accused sentenced to terms longer than mandatory minimum terms of imprisonment provided for in s. 95(2) of Criminal Code — Whether mandatory minimum imprisonment terms result in cruel and unusual punishment on accused — If not, whether s. 95(2) ’s reasonably foreseeable applications would impose cruel and unusual punishment on other offenders — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 12 — Criminal Code, R.S.C. 1985, c.

C-46, s. 95 . N and C were convicted of possessing loaded prohibited firearms contrary to s. 95(1) of the Criminal Code . They were sentenced under s. 95(2) ( a )(

i) and (ii) which provided for three and five year mandatory minimum imprisonment terms, to 40 months and 7 years imprisonment respectively. In N’s case, the trial judge held that the three-year minimum sentence imposed by s. 95(2) ( a )(

i) did not offend either s. 12 or s. 15 of the Charter . However, he concluded that the two-year gap between the one-year maximum sentence if the Crown proceeded summarily and the three-year minimum sentence if the Crown proceeded on indictment offended s. 7 because it was arbitrary and was not justified under s. 1 . Nevertheless, the trial judge held that N was not personally affected by the gap, and therefore dismissed the s. 7 claim. In C’s case, the judge also dismissed the s. 12 challenge.

She held that the five-year mandatory minimum sentence imposed by s. 95(2) ( a )(ii) was not grossly disproportionate for C, in light of the gravity of his crimes. She also held that C had failed to put forward any reasonable hypothetical cases in which the application of the five-year mandatory minimum sentence would be grossly disproportionate. The Court of Appeal held that the mandatory minimum terms of imprisonment in s. 95(2) (

a) resulted in grossly disproportionate sentences in reasonable hypothetical cases at the licensing end of the s. 95 spectrum, and therefore held that they violate s. 12 of the Charter . However, the Court of Appeal held that the sentences imposed on N and C were appropriate and should be upheld.

Held (Rothstein, Moldaver and Wagner JJ. dissenting): The appeals should be dismissed. Per McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ.: The mandatory minimum sentences imposed by s. 95(2) ( a )(

i) and (ii) of the Criminal Code violate s. 12 of the Charter and are null and void under s. 52 of the Constitution Act, 1982 . However, N and C’s sentences were appropriate and are upheld. In most cases, including those of N and C, the mandatory minimum sentences of three and five years do not constitute cruel and unusual punishment. But in some reasonably foreseeable cases, they may do so. When a mandatory minimum sentencing provision is challenged under s. 12, two questions arise.

The first is whether the provision imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications would impose cruel and unusual punishment on other offenders. This approach is consistent with the long and settled jurisprudence of this Court relating to Charter review generally and to s. 12 review in particular, is workable, and provides sufficient certainty.

There is no reason to overrule this jurisprudence, especially as the effect would be to diminish Charter protection. Where mandatory minimum sentencing laws are challenged under s. 12 on the basis of their reasonably foreseeable application to others, the question is what situations may reasonably arise, not whether such situations are likely to arise in the general day-to-day application of the law. Only situations that are remote or far-fetched are excluded. In this case, N and C do not argue that the mandatory minimum terms of imprisonment in s. 95(2) are grossly disproportionate as applied to them.

Rather, they argue that those mandatory minimum terms of imprisonment are grossly disproportionate as they apply to other offenders. Turning first to s. 95(2) ( a )(i), the question is whether the three-year minimum term of imprisonment would result in grossly disproportionate sentences in reasonably foreseeable cases. The answer to this question is yes. Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not.

At that far end stands, for example, the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. Given the minimal blameworthiness of this offender and the absence of any harm or real risk of harm flowing from the conduct, a three-year sentence would be disproportionate. Similar examples can be envisaged. The bottom line is that s. 95(1) foreseeably catches licensing offences that involve little or no moral fault and little or no danger to the public.

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 s. 718 of the Criminal Code and legitimate expectations in a free and democratic society.

As the Court of Appeal concluded, there exists a cavernous disconnect between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment. Consequently, s. 95(2) ( a )(

i) breaches s. 12 of the Charter . As for s. 95(2)( a )(ii), there is little doubt that in many cases those who commit second or subsequent offences should be sentenced to terms of imprisonment, and some for lengthy terms. The seven-year term of imprisonment imposed on C is an example. But the five-year mandatory minimum term of imprisonment would be grossly disproportionate for less serious offenders. For them, the five- year term goes far beyond what is necessary in order to protect the public, to express moral condemnation of the offenders, and to discourage others from engaging in such conduct.

Therefore, s. 95(2)( a )(ii) violates s. 12 of the Charter . These s. 12 Charter violations are not justified under s. 1 . Although the government has not established that mandatory minimum terms of imprisonment act as a deterrent, a rational connection exists between mandatory minimums and the goals of denunciation and retribution. However, the government has not met the minimal impairment requirement under s. 1 , as there are less harmful means of achieving its legislative goal.

In addition, given the conclusion that the mandatory minimum terms of imprisonment in s. 95(2) when the Crown proceeds by indictment are grossly disproportionate, the limits are not a proportionate justification under s. 1 . It follows that the mandatory minimum terms of imprisonment imposed by s. 95(2) are unconstitutional. This conclusion makes it unnecessary to consider N and C’s arguments that s. 95(2) violates s. 7 of the Charter . Per Rothstein, Moldaver and Wagner JJ. (dissenting): The reasonable hypothetical approach under s. 12 of the Charter does not justify striking down s. 95(2) of the Criminal Code .

The hypothetical licensing-type cases relied upon by the majority are not grounded in experience or common sense. First, experience shows that there is not a single licensing-type case over the entire history of s. 95(2) where the imposition of a mandatory minimum could be regarded as grossly disproportionate. Moreover, the parties cannot identify a single case where an offender who has committed a licensing-type offence has been prosecuted by indictment, thus attracting a mandatory minimum. In fact, in the only licensing-type case raised by the parties, the Crown proceeded summarily.

Second, an application of the reasonable hypothetical approach which assumes that the Crown will elect to proceed by indictment when the fair, just, and appropriate election would be to proceed summarily does not accord with common sense. The Crown election has been purposely integrated into the legislative scheme and is a clear expression of Parliament’s intent to confer on prosecutors the ability to divert the least serious licensing-type cases into

summary proceedings. It is a mistake to shunt this factor aside when crafting reasonable hypotheticals. Parliament’s choice to raise the mandatory minimums in s. 95 reflects valid and pressing objectives, and it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture. This Court has warned against the use of hypotheticals that are “far-fetched or only marginally imaginable”. The hypothetical scenario advanced by the majority stretches the bounds of credulity. It is not a sound basis on which to nullify Parliament’s considered response to a serious and complex issue.

The majority identifies an alternative scheme that, in its view, would accomplish Parliament’s goals without offending s. 12 of the Charter . Under this scheme, the impugned mandatory minimums could be enacted as part of a revised offence containing an additional element beyond the existing elements of s. 95(1). For example, the offence could be limited to “those engaged in criminal activity” or to “conduct that poses a danger to others”. The problem with this suggestion is two-fold. First, it is discordant with Parliament’s true objective in creating mandatory minimums for the unlawful possession of a loaded or readily loaded prohibited or restricted firearm.

Section 95 targets the simple possession of guns that are frequently used in gang-related or other criminal activity. Parliament has concentrated on simple possession for a reason: firearms — and particularly the firearms caught by s. 95 — are inherently dangerous. Outside of law enforcement, prohibited and restricted firearms are primarily found in the hands of criminals who use them to intimidate, wound, maim, and kill. Given the inherent danger associated with these guns, it was open to Parliament to conclude that their simple possession should attract a significant mandatory custodial sentence.

Second, adding new elements to the offence would render the mandatory minimums under-inclusive. Limiting the offence to “those engaged in criminal activity” could exclude cases where the imposition of a mandatory minimum is uncontroversial. Likewise, limiting the offence to “conduct that poses a danger to others” could exclude certain situations to which the mandatory minimums in s. 95 are intended to apply. In sum, the reasonable hypothetical approach does not justify striking down the impugned mandatory minimums. In any event, a different analytical framework is required here.

To date, this Court’s s. 12 jurisprudence has only considered the constitutionality of mandatory minimum sentences in the context of straight indictable offences. This is the first time it has examined their constitutionality in a hybrid scheme, which calls for a different analytical framework under s. 12. The proper analytical framework has two stages. First, the court must determine whether the hybrid scheme adequately protects against the imposition of grossly disproportionate sentences in general .

Second, the court must determine whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for a particular offender . This two-stage approach offers a more compelling framework than the use of reasonable hypotheticals to resolve a s. 12 constitutional challenge to a mandatory minimum sentence in a hybrid scheme. The first stage of the analysis has two parts. First, the court must determine the sentencing range for indictable convictions under the sentencing regime that existed prior to the enactment of the impugned mandatory minimum.

This is done with reference to actual sentences found in reported cases. The court must then isolate the low end of that sentencing range. This low end serves as an objective indicator of appropriate sentences for the least serious instances of the offence that would realistically be prosecuted by indictment. Second, the court must compare the impugned mandatory minimum with the low end of the prior range. If the mandatory minimum is grossly disproportionate to sentences at the low end, then the scheme does not adequately protect against the imposition of grossly disproportionate sentences in general .

On the contrary, it puts an identifiable set of offenders directly at risk of cruel and unusual punishment in violation of s. 12. The proper remedy here lies under s. 52(1) of the Constitution Act, 1982 , and the mandatory minimum must be struck down. If the scheme itself is upheld, the court must move on to the second stage and determine whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for the particular offender before the court.

In those rare cases where the Crown’s decision to proceed by indictment leads to a grossly disproportionate sentence, a remedy will lie under s. 24(1) of the Charter . The focus here is on the constitutionality of state action, and not the law itself. Specifically, the state action at issue is the Crown election, which is a matter of core prosecutorial discretion reviewable only for abuse of process. A decision to prosecute by indictment that would give rise to a grossly disproportionate sentence represents a per se abuse of process in violation of s. 12.

Imposing such a sentence would “undermine society’s expectations of fairness in the administration of justice”. Grossly disproportionate sentences are “so excessive as to outrage standards of decency” and are “abhorrent or intolerable” to society. They constitute a breach of an accused’s fundamental right to be free from cruel and unusual punishment, and are incompatible with the integrity of our justice system. An exercise of prosecutorial discretion — be it by design or effect — that leads to such an outcome must be regarded as a per se abuse of process.

The offender bears the burden of proof to show an abuse of process at the sentencing phase. If the offender discharges this burden of proof, he or she is entitled to a remedy under s. 24(1). In most cases, the appropriate and just remedy would be a sentence reduction below the mandatory minimum. The responsibility to ensure constitutional compliance under the proposed framework rests with judges, and not with prosecutors. The framework includes two checks to ensure compliance with s. 12, neither of which relies on prosecutorial discretion.

First, if the sentencing scheme itself is challenged, the judge may strike it down as unconstitutional. Second, if an offender argues that the mandatory minimum would be grossly disproportionate in his or her case, the judge may find a per se abuse of process and grant a sentence reduction under s. 24(1). In N’s case, Code J. found that, prior to the enactment of the three-year mandatory minimum, the sentencing range for a first offence under s. 95 was a term of imprisonment between two years less a day and three years. Thus, the low end of the range is around two years less a day.

The three-year mandatory minimum for a first offence under s. 95(2) is not grossly disproportionate to this low end. Therefore, at the first stage, the mandatory minimum does not violate s. 12. N’s concession that a three-year sentence is not grossly disproportionate in his case disposes of the second stage. In C’s case, Backhouse J. did not refer to the sentencing range for a second or subsequent offence prior to the enactment of the five-year mandatory minimum.

Code J., however, noted that while the sentencing range for a first offence was between two years less a day and three years, much longer sentences were imposed for recidivists. It is clear, then, that a second or subsequent offence would have attracted a sentence considerably longer than three years — at the very least, in the range of four or five years. The present five-year mandatory minimum is not grossly disproportionate to the previous low end of the range for second or subsequent offences

under s. 95. Like N, C concedes that the mandatory minimum is not grossly disproportionate in his case. In conclusion, neither the sentencing scheme itself, nor its application to N or C, offends s. 12 of the Charter. Moreover, s. 95 is neitherarbitrary nor overbroad, and therefore does not offend s. 7 of the Charter. Cases Cited By McLachlin C.J. Applied: R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v.Goltz, (SCC), [1991] 3 S.C.R. 485; referred to: Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783;R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486;R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R. v.Morgentaler, (SCC), [1988] 1 S.C.R. 30; R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R.154; R. v. Heywood, (SCC), [1994] 3 S.C.R. 761; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v.Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Brown, (SCC), [1994] 3 S.C.R. 749; Ontario (Attorney General) v.Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Canada v.

Craig, 2012 SCC 43, [2012] 2 S.C.R. 489; Canada (Attorney General) v. Bedford,2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37;R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44,[2011] 3 S.C.R. 134; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; R. v. Bain, (SCC), [1992] 1 S.C.R. 91; R. v. Smickle, 2012 ONSC 602, 110 O.R. (3d) 25; R. v. Oakes, (SCC), [1986] 1S.C.R. 103; RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; Alberta v. HutterianBrethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567. By Moldaver J. (dissenting) R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485; R. v.Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Snobelen, [2008] O.J. No. 6021 (QL); R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R.37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Felawka, (SCC), [1993] 4 S.C.R. 199; R. v. Elliston, 2010ONSC 6492, 225 C.R.R. (2d) 109; R. v. Chin, 2009 ABCA 226, 457 A.R. 233; Canada (Attorney General) v.

PHS Community ServicesSociety, 2011 SCC 44, [2011] 3 S.C.R. 134; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Nixon, 2011 SCC 34, [2011] 2S.C.R. 566; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v.Keyowski, (SCC), [1988] 1 S.C.R. 657; R. v. Jack (1996), (MB CA), 113 Man. R. (2d) 260; R. v.Jack, (SCC), [1997] 2 S.C.R. 334; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; R. v. Ferguson, 2008 SCC 6, [2008]1 S.C.R. 96; R. v. Bain, (SCC), [1992] 1 S.C.R. 91; R. v. Skolnick, (SCC), [1982] 2 S.C.R. 47.

Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 12, 24(1). Constitution Act, 1982, s. 52. Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1), 56. Criminal Code, R.S.C. 1985, c. C-46, ss. 84(1) “prohibited firearm”, “restricted firearm”, (5), (6), 85(2), 95, 108(1)(b), 109, 110, 111,113, 117.01(1), 515(4.1), 579, 718, 718.1, 718.2, 732.1, 742.3, 786(2), 810(3.1). Firearms Act, S.C. 1995, c. 39, ss. 5, 7(2), 12, 12.1, 17, 19. Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209, ss. 6, 7, 15.

Tackling Violent Crime Act, S.C. 2008, c. 6, s. 8. Authors Cited Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach — Report of The Canadian SentencingCommission. Ottawa: The Commission, 1987. Canada. House of Commons. House of Commons Debates, vol. 141, No. 33, 1st Sess., 39th Parl., June 5, 2006, pp. 1941 and 1943. Canada. House of Commons. Standing Committee on Justice and Human Rights. Evidence, No. 30, 1st Sess., 39th Parl., November 7,2006, p. 1. Canada. House of Commons. Standing Committee on Justice and Human Rights.

Evidence, No. 34, 1st Sess., 39th Parl., November 23,2006, pp. 1, 3-4 and 8. Doob, Anthony N., and Carla Cesaroni. “The Political Attractiveness of Mandatory Minimum Sentences” (2001), 39 Osgoode Hall L.J.287. Doob, Anthony N., and Cheryl Marie Webster. “Sentence Severity and Crime: Accepting the Null Hypothesis” (2003), 30 Crime & Just.143. Pomerance, Renee M. “The New Approach to Sentencing in Canada: Reflections of a Trial Judge” (2013), 17 Can. Crim. L.R. 305. Tonry, Michael. “The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings” (2009), 38 Crime &

Just. 65. APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.), 2013 ONCA 677 , 117 O.R. (3d) 401, 311 O.A.C. 244, 303 C.C.C. (3d) 474, 296 C.R.R. (2d) 21, 5 C.R. (7th) 292, [2013] O.J. No. 5120 (QL), 2013 CarswellOnt 15898 (WL Can.), affirming a sentencing decision of Code J., 2011 ONSC 4874 , 241 C.R.R. (2d) 306, 275 C.C.C. (3d) 330, [2011] O.J. No. 3878 (QL), 2011 CarswellOnt 8821 (WL Can.). Appeal dismissed, Rothstein, Moldaver and Wagner JJ. dissenting.

APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.), 2013 ONCA 681 , 117 O.R. (3d) 456, 311 O.A.C. 316, 303 C.C.C. (3d) 352, 296 C.R.R. (2d) 72, 5 C.R. (7th) 370, [2013] O.J. No. 5115 (QL), 2013 CarswellOnt 15470 (WL Can.), affirming a sentencing decision of Backhouse J., 2010 ONSC 5437 , 262 C.C.C. (3d) 120, [2010] O.J. No. 4209 (QL), 2010 CarswellOnt 7496 (WL Can.). Appeal dismissed, Rothstein, Moldaver and Wagner JJ. dissenting. Andreea Baiasu , for the appellant Her Majesty The Queen. Nancy L. Dennison and Richard A.

Kramer , for the appellant the Attorney General of Canada. Dirk Derstine and Janani Shanmuganathan , for the respondent Hussein Jama Nur. Carlos Rippell and Michael Dineen , for the respondent Sidney Charles. Julie Dassylva and Gilles Laporte , for the intervener the Attorney General of Quebec. Rodney G. Garson , for the intervener the Attorney General of British Columbia. Joshua B. Hawkes , Q.C. , for the intervener the Attorney General of Alberta. Written submissions only by Michael A. Feder , Julia K. Lockhart and Adrienne Smith , for the intervener the Pivot Legal Society. Bruce F.

Simpson , for the intervener the John Howard Society of Canada. Kimberly Potter , for the intervener the Canadian Civil Liberties Association. Nader R. Hasan and Gerald Chan , for the intervener the British Columbia Civil Liberties Association. Anil K. Kapoor and Lindsay E. Trevelyan , for the intervener the Advocates’ Society. Eric V. Gottardi and Nikos Harris , for the intervener the Canadian Bar Association. Solomon Friedman , for the intervener Canada’s National Firearms Association. Joanna L. Birenbaum , for the intervener the Canadian Association for Community Living. Faisal Mirza and Anthony N.

Morgan , for the intervener the African Canadian Legal Clinic. The judgment of McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Gascon JJ. was delivered by The Chief Justice — I. Overview [ 1 ] Gun-related crime poses grave danger to Canadians. Parliament has therefore chosen to prohibit some weapons outright, while restricting the possession of others. The Criminal Code , R.S.C. 1985, c. C-46, imposes severe penalties for violations of these laws. [ 2 ] Section 95(2)(

a) imposes mandatory minimum sentences for the offence of possessing prohibited or restricted firearms when the firearm is loaded or kept with readily accessible ammunition (s. 95(1)) — three years for a first offence and five years for a second or subsequent offence. [ 3 ] The respondents Hussein Jama Nur and Sidney Charles were convicted under s. 95(1) . They assert that the mandatory minimum sentences imposed by s. 95(2) (

a) are unconstitutional because they result in grossly disproportionate sentences in some cases, violating the guarantee in s. 12 of the Canadian Charter of Rights and Freedoms against cruel and unusual punishment. The Ontario Court of Appeal agreed, and held that the mandatory minimum sentences imposed by s. 95(2) (

a) were unconstitutional. [ 4 ] I agree with the Court of Appeal that the mandatory minimum sentences imposed by s. 95(2) (

a) of the Criminal Code violate s. 12 of the Charter . Accordingly, the mandatory minimum sentences in s. 95(2)(

a) of the Criminal Code are null and void under s. 52 of the Constitution Act, 1982 . In most cases, including those of Nur and Charles, the mandatory minimum sentences of three and five years respectively do not constitute cruel and unusual punishment. But in some reasonably foreseeable cases that are caught by s. 95(1) they may do so. This has not been shown to be justified under s. 1 of the Charter . It follows that s. 95(2) (

a) is unconstitutional as presently structured. This conclusion makes it unnecessary to consider the respondents’ arguments that s. 95(2) (

a) violates s. 7 of the Charter . [ 5 ] This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances. Nur and Charles fall into this category. Like the Court of Appeal, I would uphold the sentences imposed by the trial judges in their cases.

II. Legislative Background [ 6 ] Firearm-related offences are serious crimes. Parliament has sought to protect the public from firearm-related injuries and to deter crimes involving firearms through a combination of strict licensing and registration requirements under the Firearms Act , S.C. 1995, c. 39, and criminal prohibitions under

Part III of the Criminal Code : Reference re Firearms Act (Can.) , 2000 SCC 31 , [2000] 1 S.C.R. 783 (“ Firearms Reference ”). [ 7 ] The Criminal Code imposes severe restrictions and sanctions on two classes of firearms. A “prohibited firearm” includes short-barrelled handguns, sawed-off rifles and shotguns, and automatic firearms: Criminal Code , s. 84(1). It is unlawful to possess a prohibited firearm unless the individual possessed the firearm prior to the prohibition coming into force: Firearms Act , s. 12. This grandfathering also applies to next of kin.

A “restricted firearm” includes any handgun that is not a prohibited firearm, some semi- automatic firearms, and some firearms that are less than the specified length: Criminal Code , s. 84(1). These weapons are inherently dangerous and are commonly used in criminal activity. [ 8 ] Anyone who wishes to possess a firearm must obtain a licence under the Firearms Act . Although one can obtain licences that authorize the possession of prohibited or restricted firearms, stringent criteria must be met: Firearms Act , ss. 7(2) and 12 .

The Firearms Act imposes controls on places where a person who has a licence can possess the restricted or prohibited firearms: s. 17 . A Chief Firearms Officer may deny a person a licence in the interests of public safety: s. 5 . A licensed person must obtain authorization to transport firearms from one designated place to another: s. 19.

In addition, the Act requires that a person obtain a registration certificate for the firearm: s. 12.1. [ 9 ] Restricted or prohibited firearms must be stored unloaded, with a secure locking device and in a locked container or in a vault, safe or room that has been constructed or modified for the secure storage of firearms.

Ammunition may not be stored with the firearm unless both the ammunition and the unloaded locked firearm are stored in a securely locked room or container that cannot be readily broken open or into: Storage, Display, Transportation and Handling of Firearms by Individuals Regulations , SOR/98-209, ss. 6 and 7 .

The firearms may only be loaded in a place where they can be lawfully discharged: s. 15 . [ 10 ] These licensing and registration requirements under the Firearms Act are reinforced through a series of Criminal Code offences that criminalize the possession of firearms where the possession contravenes the terms and conditions of the Firearms Act . The provision at issue in this appeal is s. 95 of the Criminal Code . The relevant version came into force in December 1998: S.C. 1995, c. 39, s. 139.

It prohibits the possession of a loaded prohibited or restricted firearm, or the possession of an unloaded prohibited or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm: s. 95(1) . The offence applies to a person in possession of a prohibited or restricted firearm who does not have an authorization or a licence to possess the firearm at the specific place at issue and a registration certificate for the firearm. [ 11 ] The respondents challenge the constitutionality of the provisions in s. 95(2) ( a )(

i) and (ii) of the Criminal Code (as it read at the relevant time): 95.

(1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of (

a) an authorization or a licence under which the person may possess the firearm in that place; and (

b) the registration certificate for the firearm.

(2) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, three years, and (ii) in the case of a second or subsequent offence, five years; or (

b) is guilty of an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding one year. (3) Subsection (1) does not apply to a person who is using the firearm under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it.

[ 12 ]

Section 95 is a hybrid offence punishable by a maximum of 10 years’ imprisonment if the Crown proceeds by way of indictment. When the provision was first introduced by Parliament, the offence carried a one-year minimum sentence if the Crown proceeded by indictment, and a one-year maximum penalty if the Crown proceeded summarily. In May 2008, Parliament increased the minimum term of imprisonment to three years for a first offence and five years for a subsequent offence if the Crown proceeded by indictment: S.C. 2008, c. 6, s. 8 . But Parliament did not change the one-year maximum sentence if the Crown proceeded summarily. Therefore, there is a two-year gap between the maximum penalty on

summary conviction and the minimum penalty on indictment. Nur challenges this gap under s. 7 of the Charter . [ 13 ] A review of the firearms offences in the Criminal Code reveals that s. 95 carries a more serious penalty than any other simple possession offence. The mandatory minimum terms of imprisonment found in s. 95 reflect two aggravating factors. It applies to prohibited and restricted firearms, which present the most significant danger to public safety.

It only applies if the firearm is loaded or if ammunition for the firearm is readily available. [ 14 ] Section 95(2)( a )(ii) imposes a five-year mandatory minimum term of imprisonment for a second or subsequent offence. For the purpose of determining whether a person has committed a second or subsequent offence within the meaning of s. 95(2) ( a )(ii), one must have regard to s. 84(5) and (6):

(5) In determining, for the purpose of subsection 85(3), 95(2) , 99(2), 100(2) or 103(2), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (

a) an offence under

section 85, 95, 96, 98, 98.1, 99, 100, 102 or 103 or subsection 117.01(1); (

b) an offence under

section 244 or 244.2; or (

c) an offence under

section 220, 236, 239, 272 or 273, subsection 279(1) or

section 279.1, 344 or 346 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

(6) For the purposes of subsection (5), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction. [ 15 ] Charles challenges s. 84(5) and (6) as being overbroad and arbitrary, contrary to s. 7 of the Charter . [ 16 ] The relevant provisions of the Charter state: 1.

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. III. Facts and Judicial History A.

Nur [ 17 ] One evening in January 2009, a young man entered a community centre in the Jane and Finch neighbourhood of Toronto and told a staff member that he was afraid of someone who was waiting outside to get him. The staff member saw someone waiting outside who looked threatening. The neighbourhood had very high levels of crime. Gun violence was a serious problem. The supervisor put the community centre on lockdown and called the police. When the police arrived, they saw four men standing at one of the entrances of the community centre. Nur was among them.

As one of the police officers approached, the men scattered. [ 18 ] The police officer chased Nur. He held his left hand against his body and appeared to be concealing something. As the officer gained ground on Nur, he saw Nur throw something away. The officer caught and arrested Nur moments after. Returning to

the area where he had seen Nur throw something to the ground, the officer found a loaded handgun under a parked car. The gun was a working 22-calibre semi-automatic with an oversized ammunition clip. There were 23 bullets in the clip and one in the chamber. The gun is a prohibited firearm. When functioning properly, the gun can fire all 24 rounds in 3.5 seconds. [ 19 ] Nur was not found to be involved with the threatening behaviour, and it was not clear when, for how long, or how Nur came to possess the loaded handgun.

(1) Ontario Superior Court of Justice [ 20 ] Nur was charged with one count of possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code . The Crown proceeded by indictment and Nur elected to be tried by judge alone. He ultimately pleaded guilty to the charge, but he did not admit any facts relevant to the allegations beyond those essential to the plea. At his sentencing, Nur put the Crown to the proof of any facts that it relied on as aggravating factors for sentencing.

Nur also challenged the constitutionality of the three-year mandatory minimum sentence imposed by s. 95(2) ( a )(i). [ 21 ] Nur comes from a supportive, law-abiding family who came to Canada as refugees. At the time of the offence, he was 19 and attending high school. He was performing well and hoped to eventually attend university. He had worked a number of part- time jobs and volunteered in the community. Teachers and past employers praised his performance and his considerable potential.

One teacher described Nur as “an exceptional student and athlete who excelled in the classroom and on the basketball court . . . an incredible youth with unlimited academic and great leadership skills”: 2011 ONSC 4874 , 241 C.R.R. (2d) 306, at para. 34 . Nur had no prior criminal record. [ 22 ] The trial judge held that the three-year mandatory minimum sentence did not offend ss. 12 and 15 of the Charter .

However, he concluded that the two-year gap between the one-year maximum sentence if the Crown proceeded summarily and the three-year minimum sentence if the Crown proceeded on indictment offended s. 7 of the Charter because it was arbitrary and was not justified under s. 1 . Nevertheless, the trial judge held that Nur was not personally affected by the gap. In his view, the gap only posed a constitutional problem for a small class of accused, in those cases where the Crown would reasonably elect to proceed summarily but for the arbitrary two-year gap.

The trial judge held that the Crown would not have proceeded summarily against Nur regardless of the maximum penalty available on a

summary conviction proceeding. The trial judge therefore dismissed the s. 7 claim. [ 23 ] The trial judge held that a sentence of 40 months was appropriate for the offence and the offender, having regard to the “inflationary floor” of the mandatory minimum sentence. Nur had been denied bail and had been in custody for 26 months. Nur received two to one credit for 20 months of pre-trial custody at the time of sentencing. As a result, the trial judge imposed a sentence of one day in custody to be followed by two years of probation.

(2) Court of Appeal for Ontario, 2013 ONCA 677 , 117 O.R. (3d) 401 [ 24 ] Nur appealed to the Court of Appeal, which heard his appeal, and five others, concerning constitutional challenges to various provisions of the Criminal Code imposing or related to the imposition of mandatory minimum sentences for various firearm- related offences. [ 25 ] Doherty J.A., for the court, allowed the appeal. He held that the three-year mandatory minimum penalty imposed by s. 95(2) ( a )(

i) was contrary to s. 12 of the Charter based on a reasonable hypothetical on the licensing end of the s. 95 spectrum, and that it was not saved by s. 1. He held that the appropriate remedy was to hold s. 95(2)( a )(

i) of no force or effect to the extent that it imposes a three-year mandatory minimum term of imprisonment when the Crown proceeds by way of indictment. His declaration did not affect the 10-year maximum penalty in s. 95(2) ( a ).

However, he also concluded that his analysis did not prevent Parliament from retaining the three-year mandatory minimum for the “true crime end” of the s. 95 spectrum, that is “[i]ndividuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others”: para. 206.

These offenders, Doherty J.A. held, should continue to receive exemplary sentences that emphasize deterrence and denunciation. [ 26 ] The Court of Appeal held that, despite mitigating factors, the trial judge’s sentence was appropriate and should be upheld. B. Charles [ 27 ] In May 2008, Charles and another man were living in a Toronto rooming house. An incident at the rooming house was reported to the police. They attended and secured the scene. The Emergency Task Force arrived and searched the house, finding a loaded Ruger semi-automatic handgun and ammunition in Charles’ bedroom.

It was equipped with an over-capacity magazine, which is a prohibited device under the Criminal Code , containing 13 rounds of live 9-mm ammunition. A further round of ammunition was found on Charles’ bed near the gun. The serial number on the gun had been removed. Charles admitted to police that he did not have a licence to possess a firearm and did not hold a current registration certificate for the firearm. Charles was arrested and charged with various firearm-related offences.

(1) Ontario Superior Court of Justice [ 28 ] The Crown elected to proceed by way of indictment. Charles pleaded guilty to possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code .

He also pleaded guilty to possession of a firearm knowing that the serial number had been defaced, contrary to s. 108(1)( b ); possession of a firearm while subject to a firearms prohibition order, contrary to s. 117.01(1), and without being the holder of a licence, contrary to s. 91(1); and possession of ammunition while subject to a firearms prohibition order, contrary to s. 117.01(1). [ 29 ] Charles has a lengthy and serious criminal record.

At the time of sentencing, it included approximately 20 prior convictions, five of which involved crimes of violence and five other convictions for firearm-related offences. Two of Charles’s prior

convictions are relevant (under s. 84(5) and (6)) to the application of the mandatory minimum sentence in s. 95(2)(a)(ii). [30] The first notable conviction was in 2002, when Charles pleaded guilty to a charge of possession of ammunitionwhile subject to a firearms prohibition order, contrary to s. 117.01(1) of the Criminal Code. He was charged following a dispute with hisgrandmother regarding a gun. The police responded to the dispute and found a locked box containing a single .38 calibre bullet, as wellas identification documents belonging to Charles.

Returning later to arrest him, the police also found Charles in possession of a largequantity of crack cocaine, electronic scales, a cell phone, scissors and a screwdriver. He was charged with possession of ammunitioncontrary to a prohibition order and possession of cocaine for the purpose of trafficking.

It appears from the record that he was sentencedto two months’ imprisonment on each charge, to be served concurrently, plus 96 days’ credit for pre-sentence custody. [31] The second notable conviction was in 2004, when Charles pleaded guilty to robbing an employment agency withthree accomplices, while using an imitation firearm and having his face masked with the intent to commit an indictable offence, contraryto s. 85(2) of the Criminal Code.

He was sentenced to 18 and a half months’ imprisonment on each count, to be served concurrently,after credit of four and a half months of pre-sentence custody. [32] At sentencing for the present offence, Charles contested the Crown’s invocation of the five-year mandatoryminimum penalty. He challenged the combined effect of ss. 84(5)(

a) and 95(2)(a)(ii) as being contrary to ss. 7, 9 and 12 of the Charter,though he later conceded that the determination of the s. 12 claim was dispositive of the ss. 7 and 9 challenges. Charles argued that theinclusion in s. 84(5)(

a) of offences that did not involve the possession of firearms as earlier offences for the purpose of s. 95(2) violateds. 12. [33] The sentencing judge dismissed Charles’ s. 12 challenge. She held that the five-year mandatory minimum sentenceimposed by s. 95(2)(a)(ii) was not grossly disproportionate for Charles, in light of the gravity of these crimes.

She also held that Charleshad failed to put forward any reasonable hypothetical circumstances in which the application of the five-year mandatory minimumsentence on conviction for a s. 95(1) offence to an offender previously convicted of an offence under ss. 85(2) or 117.01(1), would begrossly disproportionate. She sentenced Charles to seven years’ imprisonment, less five years’ credit on a two to one basis for two years,six months of pre-sentence custody: 2010 ONSC 8035, 222 C.R.R. (2d) 118.

(2) Court of Appeal for Ontario, 2013 ONCA 681, 117 O.R. (3d) 456 [34] Charles appealed to the Court of Appeal, which heard his appeal with Nur and four others concerning constitutionalchallenges arising out of the imposition of mandatory minimum sentences for various firearm-related offences. [35] Cronk J.A., for the court, held that the five-year mandatory minimum sentence of imprisonment for a second offenceunder s. 95(2) is grossly disproportionate when measured against a reasonable hypothetical in the nature of a licensing offence, evenwhere the offender has previously been convicted of an offence listed under s. 84(5).

Consequently, she declared s. 95(2)(a)(ii) of noforce or effect to the extent that it imposes a mandatory minimum sentence of five years’ imprisonment for a second or subsequentoffence when the Crown proceeds by way of indictment.

However, Cronk J.A. dismissed Charles’ claims under s. 7 of the Charter,holding that the impugned provisions were neither arbitrary nor overbroad and, therefore, did not infringe s. 7. [36] Charles did not otherwise attack his overall sentence and conceded that a sentence of five years’ imprisonment forhis s. 95(1) offence alone was appropriate, even without the application of the five-year mandatory minimum. Consequently, Cronk J.A.affirmed the sentence imposed by the sentencing judge. IV. Issues [37] This appeal raises the following issues: (

a) Do the mandatory minimum terms of imprisonment in s. 95(2)(a)(

i) and (ii) of the Criminal Code infringe s. 12 of the Charter? (

b) Do the mandatory minimum terms of imprisonment in s. 95(2)(a)(

i) and (ii) of the Criminal Code infringe s. 7 of the Charter? (

c) If so, are they saved under s. 1 of the Charter? V. Discussion A. Do the Mandatory Minimum Terms of Imprisonment in Section 95(2)(a)(

i) and (ii) Infringe

Section 12 of the Charter?

(1) The Test for Infringement of

Section 12 [38]

Section 12 of the Charter states that everyone has the right not to be subjected to any cruel and unusual punishment. The question is whether the mandatory minimum sentences imposed by s. 95(2) violate this guarantee. The respondents say they do,because s. 95(2) catches conduct that falls far short of true criminal conduct — for example licensing offences. The Attorney Generalfor Ontario responds that these examples are inadmissible hypotheticals and should not enter into the constitutional analysis, and that inany event, the Crown will choose to prosecute offences of lesser culpability by

summary conviction, avoiding the mandatory minimumprovisions. [39] This Court has set a high bar for what constitutes “cruel and unusual . . . punishment” under s. 12 of the Charter. Asentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature ofthe offence and the circumstances of the offender: R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as hethen was) explained at p. 1072 that the test of gross disproportionality “is aimed at punishments that are more than merely excessive”.

He added, “[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation”. Aprescribed sentence may be grossly disproportionate as applied to the offender before the court or because it would have a grosslydisproportionate impact on others, rendering the law unconstitutional.

[40] In determining an appropriate sentence for purposes of the comparison demanded by this analysis, regard must behad to the sentencing objectives in s. 718 of the Criminal Code, which instructs the sentencing judge as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [41] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including thoselisted in s. 718.2(a)(

i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combinedsentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposingimprisonment (ss. 718.2(

d) and (e)). [42] In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code isthat “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [43] It is no surprise, in view of the constraints on sentencing, that imposing a proportionate sentence is a highlyindividualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R.v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 80. “Only if this is so can the public be satisfied that the offender‘deserved’ the punishment he received and feel a confidence in the fairness and rationality of the system”: Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 533, per Wilson J. As LeBel J. explained in R. v. Ipeelee, 2012 SCC 13, [2012] 1S.C.R. 433: Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. Thisis closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justice system. . . . Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [para. 37] [44] Mandatory minimum sentences, by their very nature, have the potential to depart from the principle ofproportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentencefor the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.

They function as a bluntinstrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, inextreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way thatviolates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factorsin order to reach a proportionate result.

They affect the outcome of the sentence by changing the normal judicial process of sentencing. [45] General deterrence — using sentencing to send a message to discourage others from offending — is relevant. But itcannot, without more, sanitize a sentence against gross disproportionality: “General deterrence can support a sentence which is moresevere while still within the range of punishments that are not cruel and unusual” (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, atpara. 45, per Gonthier J.).

Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a messageto discourage others from offending. [46] To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusualpunishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence forthe offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the

mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If theanswer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.

(2) Whose Situation Is Considered in the

Section 12 Analysis? [47] We have seen that a s. 12 challenge to a mandatory sentencing provision compares a fit and proportionate sentencefor the offence with the sentence imposed by the mandatory minimum. At this point, a question arises — a question that is at the heart ofthis case. In analyzing the constitutionality of a mandatory minimum sentencing provision, who does the court take as the offender?Does the court consider only the offender who brings the s. 12 challenge?

Or should it also, if necessary, consider how the provisionimpacts on other persons who might reasonably be caught by it? [48] Nur and Charles do not argue that the mandatory minimum terms of imprisonment in s. 95(2) are grosslydisproportionate as applied to them. Rather, they argue that these mandatory minimum terms of imprisonment violate s. 12 as they applyto other offenders.

Against this, the Attorney General of Ontario, supported by other Attorneys General, argues for a test that puts theprimary or exclusive focus on the offender before the court. (The Attorney General of Ontario says the analysis should ask whether themandatory minimum is grossly disproportionate having regard to the purpose and gravity of the offence as manifested in actual commoninstances of committing the offence, as well as the actual case before the court: A.F. (Nur), at para. 41.

The Attorney General of BritishColumbia goes further, asserting that only the circumstances of the offender should be considered.) [49] For the reasons that follow, I conclude that excluding consideration of reasonably foreseeable applications of amandatory minimum sentencing law would run counter to the settled authority of this Court and artificially constrain the inquiry into thelaw’s constitutionality. [50] To confine consideration to the offender’s situation runs counter to the long and settled jurisprudence of this Courtrelating to Charter review generally, and to s. 12 review in particular. [51] I turn first to the general jurisprudence of Charter review.

This Court has consistently held that a challenge to a lawunder s. 52 of the Constitution Act, 1982 does not require that the impugned provision contravene the rights of the claimant: R. v. Big MDrug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 314; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30;R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154; R. v. Heywood, (SCC), [1994] 3 S.C.R.761; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 58-66.

As Iwrote in Ferguson, “[a] claimant who otherwise has standing can generally seek a declaration of invalidity under s. 52 on the groundsthat a law has unconstitutional effects either in his own case or on third parties”: para. 59. This is because “[i]t is the nature of the law,not the status of the accused, that is in issue”: Big M, at p. 314, per Dickson J.

Section 52 of the Constitution Act, 1982 entrenches notonly the supremacy of the Constitution but also commands that “any law that is inconsistent with the provisions of the Constitution is, tothe extent of the inconsistency, of no force or effect”. If the only way to challenge an unconstitutional law were on the basis of theprecise facts before the court, bad laws might remain on the books indefinitely. This violates the rule of law. No one should be subjectedto an unconstitutional law: Big M, at p. 313.

This reflects the principle that the Constitution belongs to all citizens, who share a right tothe constitutional application of the laws of Canada. [52] The argument that the focus should be mainly or exclusively on the offender before the court is also inconsistentwith the jurisprudence of the Court on the review of mandatory minimum sentences under s. 12 of the Charter. The cases havesometimes referred to this review as proceeding on “reasonable hypotheticals”.

The Attorney General of Ontario concedes that the casesunder s. 12 support looking beyond the circumstances of the offender before the court, but asks us to overrule them. She says the caseson what constitutes a “reasonable hypothetical” are “irreconcilable”. A review of the cases does not, with respect, support thiscontention. [53] The first case to consider the question was Smith.

The majority of the Court, per Lamer J. (as he then was) struckdown a seven-year mandatory minimum sentence for importing narcotics on the basis that the law could catch a student driving home toCanada from the United States with her first joint of grass. The Court acknowledged that a long prison sentence was appropriate withfew exceptions for people who import drugs into the country, but held that because it could catch people for whom the seven-yearminimum sentence would be grossly disproportionate, it violated the s. 12 guarantee against cruel and unusual punishment. [54] A few years later in R. v.

Goltz, (SCC), [1991] 3 S.C.R. 485, the Court, per Gonthier J. for themajority, confirmed that a s. 12 review of mandatory minimum sentencing laws may look at cases other than that of the offender, andcommented on the scope of that review. Laws should not be struck down as unconstitutional on the basis of examples that were unlikelyever to arise. The focus must be on “reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases”:p. 506 (emphasis in original).

The Court upheld a minimum sentence of seven days’ imprisonment for driving while prohibited. [55] Once again, in Morrisey, the majority of the Court, per Gonthier J., stressed that the “reasonableness of thehypothetical cannot be overstated”: para. 30.

The Court upheld a four-year mandatory minimum sentence for criminal negligencecausing death by using a firearm. [56] These are the only three cases to directly address the question of what cases, or “hypotheticals”, the court shouldconsider on a s. 12 challenge to a mandatory minimum sentencing provision.[1] In my view, they do not establish that the jurisprudenceis “irreconcilable”. A single theme underlies Goltz and Morrisey — the only two cases to discuss the issue in detail — reasonableforeseeability.

When Gonthier J. in Goltz speaks of the “reasonable hypothetical” he is speaking of a situation that may reasonably beexpected to arise — not “marginally imaginable”, not “far-fetched”, but “reasonable”.

The early case of Smith is not inconsistent inwords or result with the theme developed in Goltz and Morrisey — in determining whether mandatory minimum sentencing laws violates. 12, it is appropriate to consider how the law may impact on third parties in reasonably foreseeable situations. [57] Unfortunately, the word “hypothetical” has overwhelmed the word “reasonable” in the intervening years, leading todebate on how general or particular a hypothetical must be, and to the unfortunate suggestion that if a trial judge fails to assign aparticular concatenation of characteristics to her hypothetical, the analysis is vitiated.

With respect, this overcomplicates the matter. The

question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples’ situations, resulting in a violation of s. 12. The terminology of “reasonable hypothetical” may be helpful in this regard, but the focus remains squarely on whether the sentence would be grossly disproportionate in reasonably foreseeable cases. At its core, the process is simply an application of well established principles of legal and constitutional

interpretation. [ 58 ] I conclude that the jurisprudence on general Charter review and on s. 12 review of mandatory minimum sentencing provisions supports the view that a court may look not only at the offender’s situation, but at other reasonably foreseeable situations where the impugned law may apply. I see no reason to overrule this settled principle. [ 59 ] I add this.

This Court does not and should not lightly overrule its prior decisions, particularly when they have been elaborated consistently over a number of years and when they represent the considered view of firm majorities: see, e.g., Ontario (Attorney General) v. Fraser , 2011 SCC 20 , [2011] 2 S.C.R. 3, at paras. 56-57 ; Canada v. Craig , 2012 SCC 43 , [2012] 2 S.C.R. 489, at para. 27 . Deciding whether to do so requires us to balance correctness against certainty: Craig , at para. 27 ; Canada (Attorney General) v. Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101, at para. 47 .

We must be especially careful before reversing a precedent where the effect is — as it would be here — to diminish Charter protection: R. v. Henry , 2005 SCC 76 , [2005] 3 S.C.R. 609, at para. 44 . [ 60 ] The Attorney General of Ontario raises a second argument for abandoning the s. 12 jurisprudence — that it is “unworkable” and leads to uncertainty. This contention rests on the debate about reasonable hypotheticals.

As just discussed, the term “reasonable hypothetical” simply means that the court must look at reasonably foreseeable applications of the mandatory minimum at issue, and ask whether these would be grossly disproportionate and thus impose cruel and unusual punishment. This is the sort of inquiry judges have consistently conducted in Charter review.

It is an inquiry into the range or scope of the law — into what Dickson J. in Big M referred to as the “nature of the law”. [ 61 ] To be sure, the language of “reasonable hypotheticals” in the context of mandatory minimum sentences and the exaggerated debate that has surrounded the term has led some to fear that the potential for finding a law inconsistent with the Charter is limited only by the bounds of a particular judge’s imagination. This fear is misplaced. Determining the reasonable reach of a law is essentially a question of statutory

interpretation. At bottom, the court is simply asking: What is the reach of the law? What kind of conduct may the law reasonably be expected to catch? What is the law’s reasonably foreseeable impact? Courts have always asked these questions in construing the scope of offences and in determining their constitutionality. [ 62 ] The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense.

The judge may wish to start with cases that have actually arisen (I will address the usefulness of reported cases later), and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable. Fanciful or remote situations must be excluded: Goltz , at p. 506. To repeat, the exercise must be grounded in experience and common sense. Laws should not be set aside on the basis of mere speculation. [ 63 ] Not only is looking at the law’s impact on persons whom it is reasonably foreseeable the law may catch workable — it is essential to effective constitutional review.

Refusing to consider reasonably foreseeable impacts of an impugned law would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order. The protection of individuals’ rights demands constitutional review that looks not only to the situation of the offender before the court, but beyond that to the reasonably foreseeable reach of the law.

Testing the law against reasonably foreseeable applications will prevent people from suffering cruel and unusual punishment in the interim until the mandatory minimum is found to be unconstitutional in a particular case. [ 64 ] Refusing to consider an impugned law’s impact on third parties would also undermine the prospect of bringing certainty to the constitutionality of legislation, condemning constitutional jurisprudence to a wilderness of single instances. Citizens, the police and government are entitled — and indeed obliged — to know what the criminal law is and whether it is constitutional.

Looking at whether the mandatory minimum has an unconstitutional impact on others avoids the chilling effect of unconstitutional laws remaining on the statute books. [ 65 ] I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations. The constant jurisprudence of this Court and effective constitutional review demand no less.

In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons. [ 66 ] I turn now to some of the ancillary debates surrounding how a court should proceed where mandatory minimum sentencing laws are challenged under s. 12 on the basis of their reasonably foreseeable application to others. [ 67 ] The first debate concerns the degree of “likelihood” required to satisfy the reasonable foreseeability test.

The Attorney General of Ontario argues that the s. 12 question is whether it is likely that the general application of the offence would result in the imposition of a grossly disproportionate sentence amounting to cruel and unusual punishment: A.F. (Nur), at para. 66. She says the Court of Appeal erred by failing to confine itself to common instances of conduct caught by the provision and basing its decision on unlikely scenarios: para. 68-73.

These instances create a presumption of constitutionality that can be defeated only by showing that the offender before the court would suffer cruel and unusual punishment: para. 68. [ 68 ] The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded: Goltz , at p. 515 .

Contrary to what the Attorney General of Ontario suggests there is a difference between what is foreseeable although “unlikely to arise” and what is “remote [and] far-fetched”: A.F. (Nur), at para. 66. Moreover, adoption of the likelihood standard would constitute a new and radically

narrower approach to constitutional review of legislation than that consistently adhered to since Big M . The Court has never asked itself whether a projected application of an impugned law is common or “likely” in deciding whether a law violates a provision of the Charter . To set the threshold for constitutional review at common or likely instances would be to allow bad laws to stay on the books. [ 69 ] The Attorney General of Ontario urges that the approach she proposes is necessary to prevent uncertainty in the law.

A presumption of constitutionality arising from the appropriateness of the mandatory minimum (having regard to the purpose and gravity of the offence) in common or likely cases, she asserts, will set a constant standard that can only exceptionally be rebutted by a finding that the mandatory minimum is grossly disproportionate as applied to a particular offender. This, she argues, will provide certainty. [ 70 ] I am not persuaded by this argument. In essence, it would make the sentencing range for common occurrences of the offence the constitutional norm. This is problematic for two reasons.

Appropriate sentencing ranges are themselves subject to debate and, more importantly, any gain in clarity would come at the price of appropriate constitutional review and unconstitutional applications of the law. The question is, certainty for whom? The Attorney General of Ontario’s test provides a degree of certainty for offenders in situations that commonly occur. But it provides no certainty for offenders outside that category. They — and their prosecutors and judges — are left to wonder whether the mandatory minimum will be unconstitutional in their situation.

Finally, as discussed below, the reasonably foreseeable test, applied in accordance with the principle of stare decisis , will provide sufficient certainty in the law. [ 71 ] This brings us to the second ancillary question — the effect of a ruling that a particular mandatory minimum provision does not violate s. 12. Two questions arise. First, can a particular offender argue in a future case that the provision violates s. 12 because it imposes cruel and unusual punishment on him or her? The answer, all agree, must be yes.

If the offender can establish new circumstances or evidence, including mitigating factors specific to the offender, it is open to a court to reconsider the constitutionality of the law. Second, can the offender in a future case argue that the provision as applied to others violates s. 12? The answer to this question is that it depends. Once a law is held not to violate s. 12, stare decisis prevents an offender in a later case from simply rearguing what constitutes a reasonably foreseeable range of the law.

But stare decisis does not prevent a court from looking at different circumstances and new evidence that was not considered in the preceding case. A court’s conclusion based on its review of the provision’s reasonably foreseeable applications does not foreclose consideration in future of different reasonable applications: Morrisey , at para. 89 , per Arbour J. That said, the threshold for revisiting the constitutionality of a mandatory minimum is high and requires a significant change in the reasonably foreseeable applications of the law.

In a nutshell, the normal rules of stare decisis answer the concern raised by the Attorney General of Ontario that “each subsequent trial court [will be asked] to duplicate the analysis”: A.F. (Nur), at para. 39. [ 72 ] A third ancillary question is whether reported cases should be considered in determining whether it is reasonably foreseeable that a mandatory minimum sentencing provision will result in cruel and unusual punishment, contrary to the s. 12 guarantee.

The majority in Morrisey said reported cases should be excluded if the court considers them “marginal”, and the minority, without qualification, said they may be considered. In my view, they can. Reported cases illustrate the range of real-life conduct captured by the offence. I see no principled reason to exclude them on the basis that they represent an uncommon application of the offence, provided that the relevant facts are sufficiently reported. Not only is the situation in a reported case reasonably foreseeable, it has happened. Reported cases allow us to know what conduct the offence captures in real life.

However, they do not prevent the judge from having regard to other scenarios that are reasonably foreseeable: see Morrisey , at para. 33 . [ 73 ] A fourth ancillary question concerns the personal characteristics of hypothetical offenders that should be considered. Some have suggested that the consideration must be generalized to the point where all personal characteristics are excluded, while others assert that any and all characteristics should be included. This debate is largely the result of the reification of the notion of the reasonable hypothetical discussed earlier.

It is answered by recognizing two aspects of the reasonably foreseeable application test. [ 74 ] First, what is reasonably foreseeable necessarily requires consideration of the sort of situations that may reasonably be expected to be caught by the mandatory minimum, based on experience and common sense. This means that personal characteristics cannot be entirely excluded.

For example, as we will see in applying the test to this case, it may be relevant to look at the fact that an offender at the licensing end of the spectrum caught by the mandatory minimum might come into innocent possession of the prohibited or restricted firearm, or be mistaken as to the scope of the prohibition. [ 75 ] Second, cutting the other way, is the admonition of Goltz that far-fetched or remotely imaginable examples should be excluded from consideration.

This excludes using personal features to construct the most innocent and sympathetic case imaginable — on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality. To repeat, the inquiry must be grounded in common sense and experience. [ 76 ] Thus, the inquiry into reasonably foreseeable situations the law may capture may take into account personal characteristics relevant to people who may be caught by the mandatory minimum, but must avoid characteristics that would produce remote or far-fetched examples. [ 77 ] In

summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications will impose grossly disproportionate sentences on others. This is consistent with the settled jurisprudence on constitutional review and rules of constitutional

interpretation, which seek to determine the potential reach of a law; is workable; and provides sufficient certainty.

(3) Application to Nur [ 78 ] Nur does not argue that the mandatory minimum in s. 95(2)( a )(

i) results in a grossly disproportionate sentence in his case. Rather, he argues it violates s. 12 in its reasonably foreseeable application to some other offenders. The question is whether the three-year minimum sentence imposed by s. 95(2)( a )(

i) will result in grossly disproportionate sentences in reasonably foreseeable cases. [ 79 ] I would answer this question in the affirmative. The Court of Appeal, using the language of “reasonable

hypotheticals”, described a situation at the licensing end of the spectrum of conduct caught by s. 95(1) for which a three-year sentence would be grossly disproportionate — where a person who has a valid licence for an unloaded restricted firearm at one residence, safely stores it with ammunition in another residence, e.g. at her cottage rather than her dwelling house. [ 80 ] The Attorney General of Ontario objects that this is a speculative scenario. On the contrary, occurrences such as this are reasonably foreseeable. In R. v.

MacDonald , 2014 SCC 3 , [2014] 1 S.C.R. 37, this Court was concerned with a charge against a gun owner who, unaware that his licence was confined to his Calgary residence, had it in his possession at his Halifax residence. The Court (contrary to what the Ontario Court of Appeal assumed in its example) took a broad view of the offence, holding that the Crown is not required to prove that the accused knew that possession in the place in question was unauthorized (para. 55), and upheld Mr. MacDonald’s conviction.

The Court commented that, “in ordinary circumstances, his mistake of law would be a mitigating factor to be considered in fashioning a sentence that is proportionate to his crime”: para. 61. [ 81 ] The Attorney General of Ontario argues that the scenarios posited by the Court of Appeal are uncommon, and that few s. 95 cases do not warrant at least a three-year sentence: A.F. (Nur), at para. 72. But as discussed above, the test is not whether prosecutions at the lower end of the spectrum are common. Rather, the question is whether the provision would reasonably be expected to capture the conduct.

The answer to this question is yes. [ 82 ] Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At

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