2014 QCCQ 11283, 2014 QCCQ 11283

Unofficial English Translation R. c. Kaluza 2014 QCCQ 11283 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL "Criminal and Penal Division" No.: 500-01-010709-076 DATE: November 20, 2014 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE ROBERT MARCHI, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Complainant – Respondent v.

LELAND KALUZA Accused – Applicant and ATTORNEY GENERAL OF QUEBEC Intervener ______________________________________________________________________ Decision on a motion seeking a declaration of constitutional invalidity of the minimum sentence set out in paragraph 95(2)(

A) of the Criminal Code (as provided on August 21, 2007) AND SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] In this case, the applicant Leland Kaluza ("Kaluza" or "the applicant") challenges the constitutional validity of the minimum sentence of one year of imprisonment for the offence of possession of a loaded prohibited weapon, as provided at the time of the commission of the offences in August of 2007. CONTEXT OF THE MOTION [ 2 ] On September 26, 2013, the Court convicted the applicant [1] of having, on August 21, 2007, had in his possession a loaded prohibited weapon, contrary to paragraph 95(2) (

a) of the Criminal Code ( Cr. C .), and of possession of marijuana for the purpose of trafficking, contrary to subsections 5(2) and (4) of the Controlled Drugs and Substances Act ( C.D.S.A ). [ 3 ] In 2007, when the alleged offences were committed, paragraph 95(2) (

a) provided a minimum sentence of one year for offences prosecuted by way of indictment. [ 4 ] In 2007,

section 95 Cr. C . read as follows: [2] 95.

(1) Subject to subsection (3) and

section 98, 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. Punishment

(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 ten years and to a minimum punishment of imprisonment for a term of one year; or

(

b) is guilty of an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding one year. [ 5 ] Faced with this minimum prison sentence, the applicant gave notice of his intention to challenge its constitutional validity. He argues that it is contrary to sections 7 , 9 , 11(

d) and 12 of the Canadian Charter of Rights and Freedoms (the " Charter ").

The applicant's arguments and THE RESPONSE OF THE AGQ AND THE DPCP [ 6 ] In his pleadings, the applicant argues that the minimum sentence violates some of his Charter rights, for the following reasons: • it deprives the judge of the discretion to impose a lesser sentence than the minimum sentence, thereby contravening the principle of judicial independence and rendering the sentence arbitrary; • it prevents the judge from complying with the principle of fundamental justice of proportionality in sentencing, again rendering the sentence arbitrary; • it renders the trial unfair, as it is supposed to conclude with the sentencing after the judge has considered all of the applicable principles and thereby meet the sentencing objectives; • finally, the applicant argues that the specific facts of the case do not fall within the objective sought by Parliament when it chose to enact a minimum sentence. [ 7 ] He also argues that, pursuant to R. v.

Nasogaluak , [3] the Court may consider the specific social problem targeted by the measure and determine whether the particular facts of the case allow it to set aside the minimum sentence in his specific case, while upholding the constitutional validity of the measure. [ 8 ] Finally, still relying on Nasogaluak , the applicant argues that the Court could avoid imposing the minimum sentence as a remedy to address egregious misconduct by state agents, such as: • the fact that the state failed to take the necessary measures to prevent an excessively and unacceptably long period of time from passing before he stood trial, in particular by failing to fill empty judge's positions; • the fact that he was detained for over 60 days to undergo a psychiatric assessment ordered by a judge, contrary to subsection 672.14(3) Cr.

C .; • the fact that he was detained for the entire duration of the psychiatric assessment without a hearing to determine a measure that would be less restrictive to his liberty, contrary to

section 672.16 Cr. C .; • finally, he blames the prosecutors from the Directeur des poursuites criminelles et pénales (DPCP), who, through their conduct, prevented the applicant from being tried more quickly by arguing his incapacity to stand trial, whereas the applicant himself was challenging the DPCP's position on this point and wished to stand trial. [ 9 ] The Attorney General of Quebec (AGQ) intervened to defend the constitutional validity of the impugned provision.

The Attorney General of Canada, for its part, was duly notified but chose not to intervene. [ 10 ] Not surprisingly, the respondent and the intervener argue that the minimum sentence does not breach any Charter rights, and in particular not those protected under

section 12 . [ 11 ] As for the two offences of which the applicant was convicted, the prosecutor for the Directeur des poursuites criminelles et pénales (DPCP) seeks an overall sentence of twenty months. According to the prosecution, since the applicant was kept in preventive detention for three months, the Court should deduct six months from the twenty-month sentence and therefore sentence the applicant to fourteen months' imprisonment.

The factual background and the judgment ON CONVICTION [ 12 ] The facts leading to the applicant's conviction are set out in the judgment, and the Court has no intention of repeating them all here. Certain passages, however, are worth quoting here to better understand the specific context of the case: [ translation ] [3] Late in the evening of August 21, 2007, the accused was observed by a police officer of the Service de police de la Ville de Montréal (SPVM) walking alone down a street in Montreal. ...

What drew the police officer's attention was the fact that the accused had in his possession an approximately eight-foot-long pole with a road sign at the end of it. [4] At the request of this police officer, other officers stopped the accused and arrested him. At the request of these police officers, the accused placed the pole on the ground along with his backpack [which he was wearing]. [5] The police officers then proceeded to search the accused and his backpack. ... [10] In the front

section of the bag, the officers found a black bandana containing a small firearm. The seizing officer ... testified that the firearm was wrapped in the bandana and that he had to touch the bandana to become aware the presence of the firearm. He therefore had to open the bandana to see the weapon. ...

[13] This is essentially the Crown's evidence, which was supplemented by documentary evidence establishing that it was indeed a weapon... . It should be noted that there were no fingerprints or DNA evidence found to establish that the accused had handled the weapon found in his possession. [14] ... I am satisfied that the Crown evidence has established that the weapon found in the accused's possession is the weapon described in this expert evidence. [15] The accused testified in his own defence.

He described himself as an artist. ... [17] According to the accused, on the day of the events, he was working at a studio that he shares with other artists and that many people visit. [18] A friend, an artist whom he did not wish to identify, brought a weapon there. According to the accused, this friend, whom he described as unstable, had the weapon in his possession because a mutual friend of theirs had allegedly been shot in the back of the head by the police officers.

He [the accused] therefore perceived the situation as dangerous to the friend in question and to the other people. [19] The friend in question left the studio but left the gun there, wrapped in a black bandanna. He [the accused] did not know what to do with it. The accused then decided not to leave it at the studio and took possession of it. He thought about getting rid of it by throwing it in the garbage, but he preferred to remove it from there.

Therefore, around 9:00 p.m., he placed it in his bag, and around 9:30 p.m., he left the studio. [20] The accused claims that he did not see the firearm but, as he says, "he felt part of it" when he picked up the bandanna. He therefore knew it was a weapon, but nothing more. In addition, he claims that when the police officers seized the weapon, he had completely forgotten that he had it in his bag. He does, however, remember telling his friend about it during the evening. ...

He remembered the marijuana but had forgotten that the gun was in his bag. [21] He left the studio with his backpack. ... [26] The accused has no criminal record. [27] In cross-examination, ... [28] When he took possession of the gun, he did not second-guess himself or ask for anyone's opinion. ... [31] In closing, he claims that corrupt SPVM police officers have stolen from him on several occasions. He has also witnessed it. He added that the weapon was apparently sold to the young man by corrupt SPVM police officers or by persons working with the police to stir up trouble.

In fact, according to the accused, the police officers provide free weapons and drugs to the population for the purposes of stirring up trouble. Another statement of the accused's that I do not believe. [ 13 ] Upon analyzing the evidence, the Court came to the following conclusions regarding the possession of a prohibited weapon. [ translation ] Possession of a prohibited weapon [37] The charge of possession of a loaded prohibited weapon remains to be determined.

At the outset, the prosecution proved beyond any reasonable doubt that the weapon the accused had in his possession was a prohibited weapon within the meaning of section 84(1) Cr. C. and that it was loaded. [38] I also have evidence that the accused knew that it was a firearm.

In his testimony, the accused explained the circumstances in which he took possession of the weapon: when he took possession of the weapon, it was covered by the bandana, it was in fact wrapped in the bandana, and when he took possession of the bandana, he [ translation ] "felt" the bandana and its contents and noted at that moment that it was indeed a handgun. [39] The accused was sufficiently aware of the fact that it was a handgun that, as he himself admits, he decided to take possession of it immediately to prevent anything serious from happening. [40] On the evidence adduced, I find that the accused was not aware of the characteristics of the handgun that he had in his possession, particularly the "technical" characteristics that render this handgun a prohibited firearm or, in the alternative, a restricted firearm within the meaning of section 84(1) Cr.

C. [41] The charge against the accused is specific, however, and is of having a prohibited firearm in his possession. [42] Given the sentence faced by the accused, this type of charge requires proof of mens rea. That being the case, what is the required mens rea for a conviction on the charge brought? [ 14 ] After citing R. v. Williams , [4] a judgment of the Court of Appeal for Ontario, the Court decided that the evidence proved beyond any reasonable doubt that the applicant had the mens rea required to be convicted of the charge as brought.

[ 15 ] Regarding whether the applicant knew that the weapon was loaded, the judgment reads as follows: [ translation ] [50] The prosecution must also prove beyond any reasonable doubt that the accused was aware – that he had the knowledge – that the weapon found in his possession was loaded. [51] It is rare for the prosecution to have direct evidence of the knowledge of the accused, save where he or she has made an admission.

As a general rule, proof of knowledge is made by circumstantial evidence from which the trier of fact may infer the accused's knowledge and therefore, possibly, his or her guilt. ... [54] For proof of knowledge, the prosecution may also rely on the doctrine of wilful blindness to attribute the required knowledge to the accused. [55] Under this doctrine, where knowledge is an element of the mens rea , an accused's "actual" knowledge is replaced by wilful blindness, which is used to attribute such knowledge to him or her. [56] The doctrine of wilful blindness attributes knowledge to an accused who has sufficient doubt to wish to seek out further information but who deliberately chooses not to do so..... ... [58] ... the evidence must prove that, subjectively, the accused (not a reasonable person placed in the same circumstances, but the accused himself or herself) had doubts but deliberately chose not to seek out further information.

At that point, the doctrine of wilful blindness makes it possible to deem that the accused had the knowledge. [59] I find that, in this case, the circumstantial evidence filed by the prosecution has established beyond any reasonable doubt that the accused knew that the weapon was loaded and that this was why he decided to take immediate possession of it for the purpose of, by his own admission, preventing anything serious from happening. [60] In the alternative, if I am mistaken and the circumstantial evidence adduced by the prosecution does not establish beyond any reasonable doubt that the accused knew that the weapon was loaded, I nevertheless find, by way of the doctrine of wilful blindness, that it is at least possible to deem that the accused knew that the weapon was loaded. [61] It appears clearly from the testimony of the accused, taken as is, that he suspected that the weapon might be loaded.

Had he not suspected it, he would not have immediately taken it into his possession. Why would it have been so important to him to take immediate possession of the weapon to prevent something serious from happening, to put it in his bag and to [ translation ] "get it out" of the music studio, if he did not believe that it was loaded? Why did the accused testify that he perceived the situation as a danger to his friend, whom he also described as unstable, or to the other people? Why indeed, unless he suspected that the weapon might be loaded?

In the circumstances, given all the doubts he had, he should have [ translation ] "investigated further", which he did not do because he knew or strongly suspected that if he looked, he would find the knowledge. [62] Consequently, in the alternative, the doctrine of wilful blindness makes it possible for me to deem that the accused had knowledge of the fact that the weapon was loaded. [ 16 ] Finally, the Court rejected the applicant's submissions based on the short duration of his possession as well as the defence of forgotten knowledge. [ 17 ] In

summary, the Court accepted the applicant's version of the circumstances in which he physically took possession of the weapon and concluded from the evidence that he knew that it was a weapon and that he knew that it was loaded. THE APPLICANT [ 18 ] He lives with his spouse, Alessia Williams, who, in May of 2014, was pregnant. The accused has no criminal record. [ 19 ] He has been working five days a week for Square 1 Marketing, a charitable organization, since 2013. [ 20 ] He also states that he is a singer.

One night a week, he sings at a bar on St-Laurent Blvd., and on Wednesday evenings, he hosts an event at another bar. [ 21 ] He was placed in preventive detention for approximately three months. The Charter and the minimum sentence UNDER paragraph 95(2)(

a) Cr. C. THE DECISIONS OF THE COURT OF APPEAL FOR ONTARIO [ 22 ] Since the enactment of the Charter , many attempts to invalidate minimum sentences have been made, but very few have succeeded. The most well-known case is without a doubt R. v. Smith (Edward Dewey) , [5] in which the Supreme Court invalidated the minimum seven-year prison sentence under

section 5 of the Narcotic Control Act. [ 23 ] It should be pointed out that minimum sentences were quite rare until recently but that this is no longer necessarily the case, as they have become increasingly common for all types of offences.

[ 24 ] That said, in various decisions rendered on November 12, 2013, [6] a panel of five judges of the Court of Appeal for Ontario (O.C.A.) ruled on the constitutional validity of various minimum sentences for firearms offences, including the three-year mandatory minimum currently in force under paragraph 95(2)(

a) Cr. C . [ 25 ] Among these decisions, the one rendered in Nur , which concerned the constitutional validity of the three-year minimum sentence now set out in paragraph 95(2)( a ), provides a remarkable review and an equally remarkable in-depth analysis of the principles that must guide the Court hearing a Charter challenge alleging the invalidity of a minimum sentence. [ 26 ] In Nur , the O.C.A. concluded its particularly persuasive decision that the three-year minimum sentence in paragraph 95(2)(

a) was contrary to

section 12 of the Charter and that it could not be saved by

section 1 . [ 27 ] Although in Nur , the principles, analysis and conclusion of the O.C.A. concerned a three-year minimum sentence, many of these principles and the O.C.A.'s analysis are relevant to the outcome of this case. That is why the Court is so strongly influenced by what Doherty J.A. wrote in Nur .

That said, it is of course important to remember that in Nur , the appeal concerned the constitutional validity of a three-year minimum sentence, not a one-year minimum sentence as in this case. [ 28 ] Nonetheless, whether the minimum sentence is three years as in Nur or one year as in the case before us, the legal principles applicable to a consideration of the constitutional validity of the provision remain the same. That having been said, the Court does not intend to quote Nur at length.

It is sufficient to reiterate that in Nur , Doherty J.A. delivered a remarkable statement and equally remarkable and persuasive analysis of the applicable principles, with which the Court completely agrees and adopts as its own. [ 29 ] Before going any further, the Court notes that two of the decisions of the O.C.A. –– Nur and Charles – have gone to appeal before the Supreme Court, that these appeals were argued just two weeks ago, on November 7, 2014, and that the Supreme Court has taken them under advisement.

It would normally be preferable to wait for the Supreme Court's decision before rendering judgment, but in the circumstances, given the delays already incurred by the applicant, the fact that the charges date back to 2007, and the fact that the trial began on April 2, 2013, it is the Court’s view that the applicant is entitled to know the Court's decision and the sentence that will be imposed. In the circumstances, therefore, the Court has decided to render its decision despite the deliberations currently underway at the Supreme Court.

This judgment should in no way be seen as an indication of a lack of respect for the Supreme Court. The decision of the O.C.A. in Nur [ 30 ] In Nur , the O.C.A. concluded that the three-year minimum sentence in paragraph 95(2)(

a) breached

section 12 of the Charter and that it could not be saved by

section 1 . [ 31 ] Doherty J.A. began with a consideration of the notion of proportionality in sentencing.

He noted that the concept cannot be assessed in a vacuum, but rather by taking into account the relationship between the length of the minimum sentence on the one hand and the legislative purpose, the nature of the prohibited conduct, and the characteristics of the accused on the other. [7] [ 32 ] First, Doherty J.A. recognized the legitimacy of Parliament's objective when it chose to criminalize possession simpliciter of a potentially dangerous firearm: in so doing, it can intercede before the weapon is used in criminal activity. [8] He notes, however, that the legitimacy of the purpose does not guarantee the constitutionality of the provision, which must be determined on the basis of

section 12 of the Charter . [9] [ 33 ] He then goes on to consider the wording of

section 95, concluding that it contemplates a broad range of situations and conduct. As he says, "Section 95 casts a wide net". [10] [ 34 ] To do so, he analyzes the essential elements of the actus reus of the offence, [11] and concludes that

section 95 does not require proof of any harm or risk of harm to any other person. It also does not require proof of specific intent or any type of negligence on the part of the accused. [12] He also found that it is not necessary for the prosecution to establish that the possession of the weapon is related to unlawful activity or intended unlawful activity. [13] [ 35 ] According to Doherty J.A., the broad scope of

section 95 is well illustrated by the broad range of persons it targets. [14] At one end of the spectrum, it catches the "outlaw" carrying a loaded prohibited or restricted firearm in public places and clearly representing an immediate danger to the public. At the other end of the spectrum, the provision catches law-abiding citizens who have possession of an unloaded firearm in a private place, with ammunition easily accessible, and who possesses all of the required permits and authorizations save that which would allow possession at that specific location.

According to Doherty J.A., unlike the "outlaw", it is difficult to claim that the honest citizen poses any danger to public safety, immediate or not. In his view, this case is more in the nature of a regulatory offence. Because of the vast scope of

section 95, however, and because of the broad range of conduct that it catches, the honest citizen is also subject to the minimum three-year sentence. [ 36 ] This was a determinative element in the O.C.A.'s decision to invalidate the three-year minimum sentence. [ 37 ] Doherty J.A. then recalls the terms used by the Supreme Court to illustrate cruel and unusual punishment within the meaning of

section 12 of the Charter : [15] The sentence imposed must be so excessive as to outrage the standards of decency. It is not sufficient for a sentence to be excessive to be deemed grossly disproportionate. Rather, it must be so excessive as to outrage the standards of decency, and disproportionate to the point that Canadians would find the punishment abhorrent or intolerable. [ 38 ] He also notes that the mere fact that a minimum sentence limits judicial discretion does not mean that it breaches the Charter and that it is incumbent on the applicant to prove that it is in violation. [16] Essentially, this means that alongside the provisions of

Part XXIII of the Criminal Code , which deals with the purpose and principles of sentencing, the imposition of a minimum sentence in a specific case is a valid option for Parliament so long as the sentence does not breach

section 12 of the Charter . [17] [ 39 ] Doherty J.A. then notes the two aspects of an analysis of the invalidity of a provision under

section 12 of the Charter . [18]

[ 40 ] Pursuant to this analytical approach, the judge must first decide whether the minimum sentence is grossly disproportionate in the case of the particular accused given his or her characteristics and the circumstances of the case. [19] [ 41 ] If the minimum sentence survives this first stage of the analysis, the second involves deciding whether the minimum sentence is grossly disproportionate when applied to reasonable hypotheticals. [20] [ 42 ] He then lists the factors to be considered when determining whether a sentence is grossly disproportionate within the meaning of

section 12 : [21] • the gravity of the offence; . • the personal characteristics of the offender; • the particular circumstances of the case; • the actual effect of the punishment on the individual; • the penological goals and the existence of valid effective alternatives to the mandatory minimum • a comparison of punishments imposed for other similar crimes [ 43 ] According to Doherty J.A., given the three-year minimum, the gravity of the offence will probably be the most important factor among all the other factors in the analysis. [22] Unless the offence can be described as a serious criminal offence, the three-year minimum will have difficulty surviving a

section 12 challenge. [23] [ 44 ] Although he acknowledges that all indictable offences are serious, particularly those relating to firearms, Doherty J.A. is of the view that it is difficult to gauge the true gravity of the offence set out in

section 95, first because the

section catches such a wide variety of behaviours ("it casts a wide net") and second, because Parliament itself has tempered the objective gravity of the offence by allowing the prosecution to proceed by way of

summary conviction. [24] In fact, the broad scope of

section 95 led Doherty J.A. to compare the situation with that in Smith and to note that, in Smith : [25] The broad sweep of the conduct captured by the importation offence figured prominently in the court’s ultimate determination in Smith that the seven-year minimum period violated s. 12 of the Charter . [ 45 ] With regard to the actual effect of the sentence on the accused: because the analysis of gross disproportion cannot be carried out in the abstract, the actual effect of the sentence on the accused – the interim detention that will be credited, the conditions of detention, the location of detention, and the reality of parole – must be taken into account. [26] [ 46 ] The penological goals and sentencing objectives: this factor concerns the relationship between the minimum sentence and its justification in light of the "generally accepted" sentencing principles including, of course, proportionality. [27] [ 47 ] The analysis as applied to the accused: the minimum sentence must be compared with the sentence that would have been imposed had there been no minimum sentence. [28] [ 48 ] In the case of Nur as a "particular accused", Doherty J.A. found that the minimum three-year sentence could not be characterized as grossly disproportionate given that the "range" of sentences that could have been imposed included a three-year sentence. [29] The minimum sentence therefore survived the first aspect of this two-stage analysis. [ 49 ] Doherty J.A. then moved on to the second aspect of the analysis of invalidity under

section 12 , which involves a consideration based on the existence of reasonable hypothetical cases. [ 50 ] At this stage, the Court finds it necessary to make a few remarks, as this notion of the reasonable hypothetical and the way of conceiving what can in fact constitute a reasonable hypothetical will likely be determinative with respect to determining the constitutional validity of the one-year mandatory sentence. [ 51 ] Not everyone agrees on what constitutes a reasonable hypothetical.

Some claim that a reasonable hypothetical is a case that is either related to that of the accused before the Court or to a case that has already been judicially considered. [ 52 ] Others, like Doherty J.A., believe that this is not the case and that the notion of the reasonable hypothetical should be that put forward in Smith .

In Smith , the reasonable hypothetical accepted by the Supreme Court – the case of a young man importing a marijuana cigarette for his own consumption who runs the risk of incurring a seven-year sentence – had nothing to do with the accused Smith, who was ultimately sentenced to eight years in prison. [ 53 ] If Doherty J.A. is correct in his manner of conceiving of a reasonable hypothetical, the one-year mandatory minimum runs a strong risk of meeting the same fate as the three-year mandatory minimum in Nur . [ 54 ] According to Doherty J.A., as a general rule, the reasonable hypothetical is defined as follows: [30] [142] In my view, after Morrisey and Goltz , a reasonable hypothetical is one that operates at a general level to capture conduct that includes all the essential elements of the offence that trigger the mandatory minimum, but no more.

Characteristics of individual offenders, be they aggravating or mitigating, are not part of the reasonable hypothetical analysis. It flows from Morrisey that the broader the description of the offence in the provision creating the offence, the wider the range of reasonable hypotheticals. [ 55 ] In other words, in the opinion of Doherty J.A., for a hypothetical case to be reasonable, it is sufficient that it contain all the essential elements of the offence, but no more. In his view, it should not be compared with the factual situation of the accused before him

or any other judge. And the wider the net cast by the provision creating the offence, the more numerous the reasonable hypotheticals will be. [ 56 ] Based on his analysis of Goltz and Morissey, he then went on to describe a reasonable hypothetical arising from the wording of

section 95: [31] [150] … the accused is knowingly in possession of an unloaded restricted or prohibited firearm with useable ammunition stored nearby and readily accessible; the accused has an authorization to possess the firearm and has registered the firearm, but to his or her knowledge the authorization does not permit possession of the firearm at the place or in the manner in which the accused has possession; and the possession of the firearm is not connected to any unlawful purpose or activity and the offender is not engaged in any dangerous activity with the firearm. [ 57 ] Thus, Doherty J.A. returned to his example from the beginning, an offence that is nearly regulatory in nature.

As in Smith , he rejects the argument that this is not a reasonable hypothetical because it bears an insufficient resemblance to the facts of the case or any reported cases. [32] And, as in Smith , he rejects the argument based on the discretion that could be exercised by the Crown, which would thereby avoid the mandatory minimum sentence. [33] [ 58 ] In paragraphs 164 and following, he tests his reasonable hypothetical using the factors he had already described and, in paragraph 169, finds that in such a case, the three-year mandatory minimum sentence is well beyond a proportionate sentence: [34] [169] In my view, a three-year minimum penitentiary term for an offender in my reasonable hypothetical is well beyond any punishment that would be considered proportionate to the gravity of the offence committed in the reasonable hypothetical.

A three-year penitentiary sentence for what is essentially a violation of a term of a licence, albeit a knowing violation, is unheard of in Canada. Even accepting that the unique dangers posed by prohibited and restricted firearms could justify a mandatory jail sentence for what is in essence a licensing offence, a sentence of three years goes well beyond what could be justified for such an offence under any penal theory.

A three-year penitentiary sentence is grossly disproportionate to the severity of the offence described in my reasonable hypothetical. [ 59 ] According to Doherty J.A., it is not necessary to consider the other factors relevant to the analysis of gross disproportionality, because of the significant "disconnect" between his reasonable hypothetical and the three-year mandatory minimum. [35] [ 60 ] Finally, he finds that

section 1 cannot save a provision that violates

section 12 . [36] The Court agrees. Some other decisions of the O.C.A. [ 61 ] In Charles , [37] for essentially the same reasons as in Nur , the O.C.A. invalidated the five-year mandatory minimum in subparagraph 95(2)( a )(ii) Cr. C . when the prosecution elects to proceed by indictment in a case involving a second or subsequent offence. [ 62 ] In Meszaros , [38] the O.C.A. upheld the constitutional validity of the one-year mandatory minimum set out in paragraph 85(1) (

a) for the use of a firearm while committing an indictable offence. According to Blair J.A., writing for the Court, it is impossible to conceive of a reasonable hypothetical involving the use of a firearm while committing an indictable offence where a mandatory one-year sentence of imprisonment would be grossly disproportionate. He thus draws a clear distinction between the situation in Nur (possession simpliciter of a weapon) and his situation, which necessarily involves the use of a firearm in the commission of an indictable offence.

THE COURT'S analysis The principle of judicial deference [ 63 ] Among the arguments invoked by the AGQ, the first refers to the principle of judicial restraint in constitutional matters.

Under this principle, a court may consider a constitutional issue only if it is necessary to do so to resolve a dispute, and courts must avoid ruling on constitutional issues if the matter may be decided on another basis. [ 64 ] According to the AGQ, because the sentences usually imposed in cases of possession of a prohibited weapon are lengthier than the one-year mandatory minimum, and because the applicant should receive at least that sentence, it is not necessary in the circumstances to rule on the constitutional validity of the one-year mandatory minimum. [ 65 ] The Court agrees with the PGQ's statement of the general principle of judicial deference.

This principle is clearly set out in the authorities and the case law cited in its written arguments, although there is a risk, in the case of a challenge to a minimum sentence, of the principle being significantly diluted because it seems to run counter to two-stage analysis proposed by the Supreme Court. [ 66 ] The Court also agrees with the AGQ when it states that the sentences usually imposed for an offence of possession of a prohibited loaded firearm in public are much lengthier than one year of imprisonment. [ 67 ] Given the specific circumstances of this case, however, and in particular the fact that the Court accepts the applicant's version of the circumstances in which he took possession of the weapon and his primary motivation for doing so, which clearly must have an effect on the blameworthiness of his state of mind and the sentence he should receive, the Court is not persuaded that the applicant clearly would have been sentenced to one year of imprisonment or more even if there were no one-year mandatory minimum sentence. [ 68 ] The Court can therefore not adopt what the judges of the Court of Quebec wrote in R. v.

Czajkowsk i [39] and R. v. Lévis

Mercier , [40] in which sentences far greater than the minimum sentence were going to be imposed on the accused. The two-stage analysis under

section 12 of the Charter The first stage of the analysis [ 69 ] Under the first part of the two-stage analysis, the Court must consider the particular case of the applicant himself. At this stage, it is appropriate to consider all the relevant contextual factors, as stated above. [ 70 ] Regarding the gravity of the offence at issue: As Doherty J.A. stated in Nur , the very broad scope and therefore the different types of conduct caught by

section 95 make it difficult to gauge its actual gravity, unlike other firearm offences. [ 71 ] The situation is closer to that in Smith , where the offence concerned both the importation of a very small quantity of marijuana for personal consumption and the importation of large quantities of cocaine for reselling. This element was determinative in the Supreme Court's decision to invalidate the seven-year minimum sentence. [ 72 ] The actual effect of the sentence: In the present case, despite the one-year minimum set out in

section 95, the respondent will be given double credit for any interim detention served and will be eligible for parole, reducing the actual length of his imprisonment. [ 73 ] Penological objectives and sentencing principles: The analysis here must consider the reason for the minimum sentence and its justification in terms of the sentencing objectives.

The Court is in agreement with Doherty J.A. when he writes that the assessment of the mandatory minimum in light of sentencing objectives and principles, including proportionality, inevitably leads back to a consideration of the gravity of the offence in relation to the duration of the minimum sentence. [ 74 ] The personal characteristics of the accused: This involves comparing the sentence that the accused would have received in the absence of a mandatory minimum.

This comparison is difficult. [ 75 ] Indeed, it is difficult to compare sentences imposed in circumstances similar to those in this case because of the very specific facts that the Court accepted, which differ from usual cases of possession of a loaded weapon in a public place.

Based on the facts accepted by the Court, it is difficult to find that the applicant represents the usual case of the "outlaw" walking around in public with a loaded weapon with the intention of using it as needed. [ 76 ] Without wishing to trivialize the gravity of the offence committed by the applicant, and without comparing the applicant's situation to that of the law-abiding citizen to which Doherty J.A. refers, it must be acknowledged that the facts accepted in the judgment convicting the applicant indicate that this is not the most serious way in which the offence of possession of a weapon under

section 95 may be committed. [ 77 ] Indeed, while the Court has effectively decided that the applicant was indeed in possession of the weapon in question, the Court accepted his testimony relating to his initial motivation, his initial motive, which was to ensure that the weapon would not be used to commit other offences, which decreases his moral culpability. [ 78 ] Once again, although this is not the hypothetical accepted by Doherty J.A. in Nur , this situation is far removed from that of an individual walking in public with a loaded weapon, ready to use it, thereby putting the public’s security at risk. [ 79 ] The applicant has no criminal record.

He lives in a conjugal relationship with his spouse who, last May, was expecting a child. He has regular employment. He was placed in interim detention for approximately three months, for which he will be given double credit (six months), which was the usual practice at the time of the commission of the offence more than seven years ago.

Finally, the offences took place in August of 2007, more than seven years ago. [ 80 ] Considering the very specific circumstances surrounding the applicant's possession of the firearm and his initial motivation for seizing the weapon, considering his lack of criminal record, and considering the fact that the offences took place over seven years ago, the Court is of the opinion that, under the first stage of the two-stage analysis, the one-year minimum sentence of imprisonment does indeed constitute a cruel and unusual punishment contrary to

section 12 of the Charter . [ 81 ] Moreover, if the Court is mistaken on this first aspect of the test, it is of the view that, under the second stage of the test, Doherty J.A.'s analysis in Nur and his conclusion invalidating the three-year minimum sentence are both persuasive and applicable to the one-year minimum as it existed in 2007, so long, of course, that his understanding of the reasonable hypothetical is correct. In such a case, a one-year minimum sentence is also beyond what is necessary in the hypothetical posited by Doherty J. and is inconsistent with the proportionality principle. [ 82 ] Once again, the scope of the offence under

section 95 is equally broad (it is identical), which makes it difficult to assess its actual objective gravity (as in Smith ), and allows it to catch many different types of conduct, from that of the "outlaw" to that of the more "regulatory" offender referred to by Doherty J. [ 83 ] In the circumstances, if the Court had needed to apply the second stage of the test to the one-year minimum sentence, it would have found that the sentence was constitutionally invalid because it violates

section 12 of the Charter . [ 84 ] The Court therefore declares that paragraph 95(2)(

a) Cr. C . as in force on August 21, 2007, is constitutionally invalid insofar as it provides for a minimum sentence of one year of imprisonment where the prosecution elects to proceed by indictment. [ 85 ] It remains to be determined whether the violation of

section 12 of the Charter in the present case constitutes a reasonable infringement on the applicant's right that can be demonstrably justified in a free and democratic society. [ 86 ] In Nur , [41] the Court found that a sentence violating

section 12 of the Charter cannot be justified under

section 1 because of the

extremely stringent test for gross disproportionality. The Court is in agreement with the O.C.A. that a sentence that is so excessive as to outrage the standards of decency cannot be saved by

section 1. The applicant's other arguments [ 87 ] In light of this conclusion, it is not necessary to consider the applicant's other arguments.

The appropriate sentence ־ Considering the very specific circumstances surrounding the applicant's possession of the firearm that were accepted by the Court in its judgment convicting the appellant and the applicant's initial motivation to seize the weapon, which the Court also accepted; ־ Considering his lack of criminal record; ־ Considering the fact that the applicant was placed in interim detention for approximately three months, a period for which he normally should have been given double credit (six months). He therefore has six months' credit.

That said, the Court is not at all certain that it would have sentenced the applicant to six months. I cannot, however, make the three months of interim detention disappear retroactively.

In other words, even in the absence of interim detention, my decision would have been the same; ־ Considering that the offences took place in August of 2007, more than seven years ago; ־ Considering the nature and amount of drugs found in the applicant's possession; ־ Considering the fact that the applicant lives with his spouse who was expecting a child last May and that he has regular employment: The Court suspends the passing of the sentence for two years, on the condition of keeping the peace and being of good behaviour and appearing in Court when required; ISSUES the order provided for in

article 109 C. Cr ., prohibiting the applicant from having the items enumerated therein in his possession for a period of ten years; ORDERS the confiscation and destruction of the drugs seized; ORDERS the confiscation and destruction of the firearm seized. __________________________________ ROBERT MARCHI, J.C.Q. M tre Katerine Brabant Counsel for the prosecutrix Mtre Gaétan Bourassa Counsel for the applicant Mtre Julien Bernard Counsel for the intervener Date of hearing of the motion: May 16, 2014