2017 QCCQ 7785, 2017 QCCQ 7785

Unofficial English Translation R. c. Vézina 2017 QCCQ 7785 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC CITY LOCALITY OF QUEBEC CITY “Criminal and Penal Division” No.: 200-01-181551-148 DATE: July 13, 2017 ______________________________________________________________________ PRESIDING: THE HONOURABLE HUBERT COUTURE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. JEAN VÉZINA Defendant ______________________________________________________________________ DECISION ON SENTENCING AND ON THE CONSTITUTIONALITY OF THE MINIMUM SENTENCE PROVIDED IN

SECTION 244.2(1)(a) (3)(

b) OF THE CRIMINAL CODE ______________________________________________________________________ [ 1 ] The accused was found guilty of the following charges: [ translation ] On or around February 16, 2014, in Quebec City, District of Quebec, intentionally discharged a firearm into or at a place, knowing that or being reckless as to whether another person was present in the place, thereby committing the offence under s. 244.2(1) (

a) and (3) (

b) of the Criminal Code . On or around February 16, 2014, in Quebec City, District of Quebec, stored firearms in violation of a regulation made pursuant to paragraph 117 (

h) of the Firearms Act , thereby committing an offence under s. 86(2) (3)(

a) of the Criminal Code . THE FACTS [ 2 ] At the time of the events, the accused was in a romantic relationship with Ms. Nathalie Beaudouin. It was a blended family, the accused having three children and Ms. Beaudouin, two of her own. The accused’s daughters then left home, which saddened him. He became more impatient. He had a drinking problem. He drank daily. [ 3 ] On the morning of Sunday, February 16, 2014, the couple ran some errands and when they returned home, the accused told his spouse that he was going out.

He telephoned later to tell her that he was coming to pick her up to go out for dinner at a restaurant. At around 7:30 p.m., they left the house. As they were getting into the car, Ms. Beaudouin asked him if he was all right to drive, without noticing anything however. [ 4 ] At dinner, she had only one glass of wine. The accused also drank, and when he brought up his daughters’ leaving, he became moody. Not wanting to make the situation worse, she left the restaurant and called her son William to come and get her to bring her home.

On the way, she called 911 and stated where the accused was and disclosed the fact that he would surely be driving his car while inebriated (P-6). [ 5 ] When she arrived home, some of William’s friends, Anne-Marie Bergeron and Bastien Jubinville, were there. [ 6 ] The accused returned home to 119 Armand Buteau in Beauport. He entered the house angry. Ms. Beaudouin was in the living room and the children were in the kitchen. He went down to the basement and turned off the main power switch of the house, plunging the residence into total darkness. Ms.

Beaudouin went down to the basement to turn the power switch back on. She crossed paths with

the accused, who told her that they had 60 minutes to leave the house. This utterance was confirmed by Mr. Jubinville. The accused went up to the bedroom. Ms. Beaudoin told the children to go down to their room and went upstairs to join the accused. When she entered the bedroom, she saw him searching his closet and noticed a box of ammunition. [ 7 ] The accused said he wanted to kill himself. She took the ammunition, but tripped and fell to the ground. The accused told her to leave it for him. He insulted her. She told him he was being lewd. [ 8 ] Ms.

Bergeron went down to the basement where William’s rooms were and then heard a noise that she thought sounded like a big board hitting wood, to use her expression. [ 9 ] According to William Harvey’s testimony, it appears that the noise that Ms. Bergeron heard was a gunshot. [ 10 ] There was a 911 call at 9:38 p.m. that was sent to Constable Chevary, who was on patrol with Constable Cormier. From the recording of this conversation (P-6), we learn that William said that his step-father was drunk, that he had a handgun, was aggressive and that a gunshot had been heard. [ 11 ] A recording made by Mr.

Jubinville in the home reveals the voice of a man who was highly inebriated and extremely rude to Ms. Beaudouin. We also hear Ms. Beaudouin say: [ translation ] “Why did you shoot like that?” [ 12 ] While in the master bedroom, the accused again asked that they leave and said that he didn’t want to hurt them and that he wanted to end it. [ 13 ] They exited through the closest door, that of the garage. As they were leaving, they saw the accused upstairs, at the bedroom door, holding a weapon and a beer. Ms.

Beaudoin recalls having heard shots as she was leaving the house, which was confirmed by her son William and by Ms. Bergeron. William said that while he was outside, he heard another shot. [ 14 ] The accused was seen in the window of his bedroom, holding a weapon. [ 15 ] A second 911 call was sent to constables Chevary and Cormier, who arrived at 119 Armand Buteau at 10:37 p.m. They noticed two women and two men exiting the residence and heading towards their patrol car. [ 16 ] Constable Pouliot, who has [ translation ] “use of force” training, went to the site to assist Sergeant Marcotte.

At 11:16 p.m., he tried, in vain, to contact the accused. [ 17 ] At 11:23 p.m., he was informed that the accused wanted to contact them with Ms. Beaudouin’s cell phone. The message shows that the accused was highly inebriated. [ 18 ] At 11:31 p.m., Constable Pouliot telephoned the accused. He identified himself and informed him that the residence was surrounded by police officers and asked him to give himself up. The accused answered that he wanted to shoot himself in the head and refused to exit.

He said that he had a real weapon and that he did not want to hurt anyone. [ 19 ] At 11:35 p.m., during another telephone conversation, the accused mentioned that he was finishing his beer and that he wanted to shoot himself. He ended the call. [ 20 ] At 11:40 p.m., 11:41 p.m. and 11:42 p.m., three shots were heard. [ 21 ] At 12:02 a.m., the accused contacted Constable Pouliot. He wanted to speak to Ms. Beaudouin. He was informed that they could not comply with his request. He confirmed that he had fired his weapon, but that he didn’t want to shoot anyone.

He spoke of suicide and hung up. [ 22 ] Between 22:39 p.m. and 12:33 a.m., 15 shots were heard. [ 23 ] Since he did not want to give himself up, a [ translation ] “dragnet” operation involving a tactical group was launched. [ 24 ] From some admissions, it appears that the negotiating officers tried several times to contact the accused by telephone, but to no avail, and that at around 5:54 a.m. the accused contacted them and told them he had fallen asleep. He then exited the residence at 5:58 a.m. [ 25 ] After his arrest, the accused was taken to Enfant-Jésus hospital at 6:39 a.m.

In an isolation room, at the emergency, before meeting the doctor, he was in the company of Sergeant-Detective Lessard. He said: • I was calm all evening. I was sleeping. • I don’t want to hit anyone. • Women are always scared. • I have five children, I’ve never mistreated anyone. • Christ, I’m not a terrorist, I work at the Justice Department. The police officer stated that the accused smelled of alcohol. [ 26 ] The next day, February 17, at 8:30 a.m., Constable Marchand, a crime scene technician, went to the accused’s residence.

He noticed eight gunshot markings on the floor, one on a wall, two on the ceiling and one on a piece of furniture that was up against an

exterior wall. POSITION OF THE PARTIES ON THE SENTENCE [27] The defence submits that the appropriate sentence in the circumstances is that provided in s. 731(1)(

a) Cr.

C., that is, to suspendthe passing of sentence and direct that the accused comply with the conditions prescribed in a probation order of two years. [28] In support of this position, the defence argues that: [29] The accused does not have a criminal record. [30] Prior to the events for which the accused was found guilty, he had a serious drinking problem. • He underwent in-patient therapy for his drinking problem. • He successfully completed his therapy. • He has complied with his conditions of release for three years. • He underwent psychiatric assessments and follow-up care. • He has been sober for three years. • He goes to the CRDQ (a substance abuse rehabilitation centre) weekly. • He returned to his full-time job at the Justice Department in December 2015. • He sincerely regrets his behaviour and recognizes its objective gravity. [31] The Crown argues that the accused did not discharge his burden of proving that the sentence is, as applied to him, grosslydisproportionate. [32] It points out that Parliament chose to severely punish offences involving the use of firearms out of concern for societalcondemnation.

This is not a [TRANSLATION] “very rare case”, to use its expression, which could lead the Court to find the sentencedisproportionate. [33] The Crown argues that the accused’s awareness of the acts he committed is limited only to how they relate to himself, with noconcern for the impact they may have had on the persons present. He sees the events through a selfish prism.

ANALYSIS Protection against cruel and unusual punishment: general principles [34] The legal right under s. 12 of the Canadian Charter reads: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [35] Recently the Supreme Court clarified the analytical framework allowing a judge to examine whether or not a sentenceconstitutes cruel and unusual punishment within the meaning of s. 12 of the Charter.

These guidelines do not allow for the inconsiderateinvalidation of sentences crafted by legislators since “the means and purposes of legislative bodies are not to be easily upset in achallenge under s. 12”.[1] As the Supreme Court recently observed: [39] This Court has set a high bar for what constitutes “cruel and unusual ... punishment” under s. 12 of the Charter. A sentence attackedon this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and thecircumstances of the offender: R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1073.

Lamer J. (as he then was) explainedat p. 1072 that the test of gross disproportionality “is aimed at punishments that are more than merely excessive”. He added, “[w]eshould be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation”.

A prescribedsentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionateimpact on others, rendering the law unconstitutional.[2] [36] Subsequently, in Lloyd,[3] the Supreme Court wrote: Parliament has the power to make policy choices with respect to the imposition of punishment for criminal activities and the crafting ofsentences that it deems appropriate to balance the objectives of deterrence, denunciation, rehabilitation and protection of society.

Courtsowe Parliament deference in a s. 12 analysis. [37] Over the years, the Supreme Court of Canada has been called upon to define this expression. A sentence that is simplyexcessive will not justify judicial intervention. It must be a sentence that is: • Grossly disproportionate (R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at paras. 53–54; R. v. Goltz, (SCC), [1991] 3 S.C.R. 485, at para. 37; R. v. Lloyd, 2016 SCC 13 , 2016 CSC13, at para. 43); • So excessive as to outrage standards of decency (R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, at para. 54); • Grossly disproportionate such that Canadians would find the punishment abhorrent or intolerable (R. v. Morrisey, 2000 SCC 39

, [2000] 2 S.C.R. 90, at para. 26; Ferguson v. R., 2008 SCC 6 , [2008] 1 S.C.R. 96, at para. 14). [38] It is a strict and demanding test that aims among other things to not fetter legislative discretion.[4] [39] To determine the legality of a provision establishing a minimum sentence based on s. 12, the Supreme Court calls for a two-stage analysis.

This procedure, set out in Goltz and recently reiterated by the Supreme Court in Nur and in Lloyd,[5] was summarized bythe Court of Appeal of Quebec in Caron-Barette: [TRANSLATION] For a better understanding of the remarks that follow, the Court points out that to determine whether a sentence violates s. 12 of theCharter, a two-step test must be applied. First, the court must perform a detailed analysis of the accused’s situation to determinewhat constitutes a fit and appropriate sentence, without considering the minimum sentence.

Once the fit and appropriatesentence is determined, the court must ask whether the mandatory minimum sentence is grossly disproportionate to the fitsentence. At the end of this exercise, if the court finds that the sentence is grossly disproportionate as applied to the accused, the analysisends there, since the minimum sentence violates s. 12 of the Charter.

Otherwise, the court must move on to the second step of the testand examine reasonably foreseeable applications to ensure that the mandatory minimum sentence does not inflict grosslydisproportionate punishment on other persons.[6] (Emphasis added.) [40] In short, the effect of the law must not be examined solely in relation to the offender before the Court, but also in relation to allpersons to whom the law could foreseeably apply.

Step 1- Proportionate sentence [41] First, the Court must determine what constitutes a sentence that is fit and proportionate to the gravity of the offence and the degree of responsibility of the offender.[7] The judge then applies the sentencing objectives and principles provided in s. 718 andfollowing of the Criminal Code.

The judge need not give the sentence or sentencing range specific numbers, but he should consider,even implicitly, the rough scale of the appropriate sentence. [42] To determine if the sentence is grossly disproportionate in the case of the offender, the Supreme Court has stated that thefollowing factors may be relevant: 1. The gravity of the offence committed; 2. The personal characteristics of the offender; 3. The particular circumstances of the case; 4. The actual effect of the treatment or punishment on the individual; 5. Relevant penological objectives and sentencing principles; 6.

The existence of valid alternatives to the treatment or punishment imposed; 7. A comparison of punishments imposed for other crimes in the same jurisdiction.[8] [43] None of these factors is individually determinant.[9] 1. The gravity of the offence committed [44] The s. 244.2(3)(

b) Cr. C. offence of intentionally discharging a firearm being reckless as to whether another person is present isliable to imprisonment for a term not exceeding 14 years and a minimum sentence of four years. [45] In Nur,[10] the Supreme Court clearly established the dangers of gun-related offences: “[1] Gun-related crime poses grave danger to Canadians. Parliament has therefore chosen to prohibit some weapons outright, whilerestricting the possession of others. The Criminal Code, R.S.C. 1985, c. C-46, imposes severe penalties for violations of these laws. … [6] Firearm-related offences are serious crimes.

Parliament has sought to protect the public from firearm-related injuries and to detercrimes 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”).[11] [46] In Oud, the Court of Appeal for British Columbia noted the importance placed by Parliament on offences involving firearms: [32] With the assistance of the recent decision in Lloyd, which the judge did not have (nor did he have the appellate decision inMcMillan), I have come to a different conclusion. In my view s. 244.2 fits within the first path to Charter compliance identified by theSupreme Court of Canada.

The impugned provision is sufficiently specific in its application, and does not cast an overly broad net.Unlike the hypothetical offenders contemplated in Nur and Lloyd respectively, s. 244.2 does not apply to near-regulatory offences orcapture, in the words of Lloyd at para. 28, “a large number of situations, varying greatly in an offender’s blameworthiness”. Myconclusion is rooted in the specific language of s. 244.2 which is directed with particularity to certain narrow actions, and the gravity of

that conduct. [33] Considerable legislative attention has been directed to offences involving firearms. This attention was a response to instances ofmisuse of guns, some resulting in great harm. This legislative scrutiny has resulted in various prohibitions on the use of firearms, as wellas a highly regulated system in which some firearms are prohibited, some are restricted, and some, such as the ones involved in this case,are subject to a less strict regulatory regime. This categorization and regulatory scheme is at the centre of s. 95 discussed in Nur.

On theother hand s. 244.2 addresses use of firearms, which I take to be qualitatively different, and of elevated concern to the public andParliament.

It addresses the physical employment of a firearm with a double mens rea requirement − intentional discharge of the firearmand knowledge or recklessness as to the presence of a person in the place fired upon.[12] [47] Lastly, although none of the factors to consider dominates, the Court of Appeal for Manitoba, in MacMillan,[13] suggests thatthe gravity of offences involving firearms is such that the focus should be on general deterrence and denunciation of this type of offencerather than on the personal characteristics of the offender: [12] The jurisprudence clearly establishes that firearm-related offences are serious crimes (see R v Nur, 2015 SCC 15 at para6, [2015] 1 SCR 773) and that for these type of offences, denunciation and general deterrence are the most important sentencingconsiderations (see R v Morrisey, 2000 SCC 39 at para 54, [2000] 2 SCR 90; and R v Kennedy, 2016 MBCA 5 atpara 60).

When denunciation and general deterrence are the paramount sentencing objectives, the focus is more on an offender’sconduct than any circumstances particular to that offender. Put another way, while factors personal to the accused remain relevant, theynecessarily take on a lesser role (see R v Nur (H), 2013 ONCA 677 at para 107, 311 OAC 244). 2. The personal characteristics of the offender [48] The accused does not have a criminal record. He had a serious drinking problem prior to and at the time of the events. Heunderwent and successfully completed in-patient therapy to overcome his drinking problem.

He goes to the CRDQ weekly. [49] For the past three years, he has been sober and has complied with the conditions of his release. [50] In December 2015, he returned to his full-time job at the Justice Department. [51] His spouse, who was present at the time of the events, testified that the accused has since been completely sober and thatharmony has been restored in the family.

According to the evidence, the persons present at the time of the event say that his behaviourhas completely changed and they support him unreservedly. [52] The accused recognizes the gravity of what he did and sincerely regrets having committed these acts. It was an isolated incidentthat is completely inconsistent with the accused’s life pattern. [53] According to the pre-sentence report, the risk of re-offending is reduced and the accused does not represent a danger to himselfor to others.

The accused recognizes the objective gravity of the offences he is charged with and expresses what appears to be sincereregret. [54] The officer notes that the accused is able to look critically at his situation and that he feels a deep sense of shame with which hehad difficulty coming to terms. [55] On page 7 of the pre-sentence report, the officer wrote: [TRANSLATION] We are in the presence of a 55-year-old individual who is before the courts for the first time for offences whose objective gravity issignificant.

Nevertheless, we are of the opinion that the criminal conduct is circumstantial and closely related to his drinking problemand to an accumulation of negative emotions. In the months following his arrest, Mr. Vézina took different steps to overcome hisaddiction to alcohol, but also to work on certain problems such as managing his emotions and expressing himself. In light of our analysis and the information made available to us, we believe the risk of re-offending has been lowered.

We consideredhis now three-year abstinence from alcohol, his recognition of the negative impacts of his addiction, and his taking various steps toovercome his difficulties. We should also mention as additional protection factors that he returned to work and that he can count on thepresence of social respondents in his immediate environment.

Lastly, we should add that despite the objective gravity of the offences andthe connotation of violence that is associated with these acts, we share the opinion of the psychiatrist Pierre Gagné, who assessed Mr.Vézina (February 2014), that [TRANSLATION] “[he] does not represent a risk either to himself or to others”.

Considering that he has worked on the main factors that contributed to his actions, that he has abstained from alcohol for close to threeyears and that he is still an asset to society, we do not have a specific recommendation to make in terms of therapy and socialreintegration; nevertheless, we believe he should be encouraged to maintain his sobriety. In light of the progress Mr. Vézina has madesince the events and the determination he shows to consolidate the gains he has made, we believe he is able and willing to comply withthe conditions that will be set by the Court. 3.

The particular circumstances of the case [56] When the accused discharged his weapon, there were many persons in the house. Several shots were fired since a dozengunshot marks were found inside and outside the house following the events. The arrest of the accused required a considerabledeployment of law enforcement. [57] Nevertheless, the acts committed by the accused were not tied to organized crime and the accused does not have a criminalrecord.

4. The actual effect of the treatment or punishment on the individual [58] A sentence of four years’ imprisonment would have the immediate effect of causing the accused to lose his job at the JusticeDepartment. The accused, who is now 55 years old, will have difficulty re-entering the workforce after having served a four-yearsentence, due to, among other things, his age. He will undoubtedly have no opportunity to find another job.

This sentence would have adevastating effect both on the accused and on his family and is in no way consistent with the principles of individualization in sentencingand proportionality. 5.

Relevant penological objectives and sentencing principles [59] Normally, for offences involving firearms, the objectives of general and individual deterrence take precedence. [60] The circumstances surrounding this case, however, instead favour a sentence whose objective is rehabilitation, because theaccused does not have a criminal record and because he was depressed and heavily under the influence of alcohol when he committed theoffence. The accused is not known to be a violent man. His stated intention was to commit suicide by gunshot and not to injure anyone. 6.

The existence of valid alternatives to the treatment or punishment imposed [61] Imposing a sentence of 90 days’ imprisonment to be served intermittently would be an appropriate sentence which would servethe objective of individual deterrence by constraining the accused’s freedom, and the objective of rehabilitation by enabling him to keephis job. In addition, probation would allow for supervision of the accused and suitable follow-up to ensure that he stays sober. 7.

A comparison of punishments imposed for other offences in the same jurisdiction [62] In Oud,[14] Baird, J. performed a rather exhaustive review of the sentences that have been imposed since the coming into forceof this offence in 2009 and for similar crimes. [63] Lacasse,[15] however, had the following to say with regard to the comparison of sentences imposed: Although sentencing ranges are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing.Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in anygiven case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages”,let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise theirdiscretion in each case. There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself adesirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Everything depends on the gravity of the offence, the offender’s degree of responsibility and the specificcircumstances of each case.

Thus, the fact that a judge deviates from a sentencing range established by the courts does not in itself justifyappellate intervention. [64] Considering all the particular circumstances of this case and taking into account the different sentencing objectives and thefundamental principle of proportionality, the Court finds that the mandatory minimum sentence of four years’ imprisonment is not onlyexcessive, but constitutes, as applied to the accused, a totally disproportionate sentence and violates his right not to be subjected to anycruel and unusual treatment or punishment as provided in s. 12 of the Charter.

Step 2- Reasonable hypothetical circumstances [65] Unless the offender argues reasonable hypotheticals, the Court need not decide this issue and must limit itself to the first aspectof the analysis only. In Perry,[16] the Court of Appeal wrote: [TRANSLATION] [94] In the case at bar, the respondent (like each of the other accused) did not make, and still does not make, the argument based onreasonable hypotheticals. He limits himself to the first aspect of the analysis, that is, the assessment of the disputed sentence from theperspective of his personal situation, having regard to all the circumstances.

The Court will therefore analyze the question from thisperspective only.

Justification under s. 1 of the Charter [66] Having found that the minimum sentence of four years’ imprisonment for the offence of recklessly discharging a firearmconstitutes cruel and unusual punishment which violates s. 12 of the Charter, an analysis must be performed to determine whether thissentence can be justified in a free and democratic society. [67] In Nur,[17] the Supreme Court applied the Oakes test to a minimum sentence: [111] In order to justify the infringement of the respondents’ s. 12 rights under s. 1 of the Charter, the Attorney General of Ontariomust show that the law has a pressing and substantial objective and that the means chosen are proportional to that objective.

A law isproportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question;and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes, (SCC), [1986] 1S.C.R. 103. It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12

is proportionate as between the deleterious and salutary effects of the law under s. 1.[18] [68] Applying this test to the minimum sentence provided in s. 95(2) Cr. C., the Supreme Court did not find that the violation ofs. 12 of the Charter was justified under s. 1 of the Charter since the impairment is not minimal and the deleterious effect cause by thisminimum sentence is not proportional to its salutary effects. What of the minimum sentence provided in s. 244.1 Cr. C.?

(1) The rational connection [69] It is up to the Crown to show that a mandatory minimum term of imprisonment that is deemed contrary to s. 12 of the Charterhas a rational connection to the objectives of deterrence, denunciation and punishment. In Nur[19] the Supreme Court wrote: [113] The government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes.Doubts concerning the effectiveness of incarceration as a deterrent have been longstanding.

Sentencing Reform: A Canadian Approach— Report of The Canadian Sentencing Commission (1987), concludes as follows: [114] Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes: see, e.g., A. N. Doob and C. M.Webster, “Sentence Severity and Crime: Accepting the Null Hypothesis” (2003), 30 Crime & Just. 143; M. Tonry, “The MostlyUnintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings” (2009), 38 Crime & Just. 65. The empirical evidence“is clear: mandatory minimum sentences do not deter more than less harsh, proportionate, sentences” (A. N. Doob and C.

Cesaroni, “ThePolitical Attractiveness of Mandatory Minimum Sentences” (2001), 39 Osgoode Hall L.J. 287, at p. 291).

(2) Minimal impairment [70] The Court must determine whether the limit on the right is reasonably tailored to the objective. The Court must ask whether“there are less harmful means of achieving the legislative goal” (Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC 37 ,[2009] 2 S.C.R. 567, at para. 53). [71] The comment in Nur[20] on minimal impairment also applies to the offence here: [117] Parliament could have achieved its objective by drafting an offence with a close correspondence between conduct attractingsignificant moral blameworthiness — such as those engaged in criminal activity or conduct that poses a danger to others — and themandatory minimum, rather than a sweeping law that includes in its ambit conduct attracting less blameworthiness for which themandatory minimum sentence would be grossly disproportionate.

The government has not discharged its burden on this branch of theOakes test. There are less harmful means of achieving the legislative goal.[21]

(3) Proportionality [72] Although Parliament’s objective is important, we cannot conclude from the evidence that it justifies imposing totallydisproportionate sentences on some persons. The limit that the provision places on the right guaranteed by s.12 of the Charter is notreasonable. The impairment of the right provided in s. 12 is therefore not justified under the first

section of the Charter. FOR THESE REASONS, THE COURT: DECLARES that the mandatory minimum sentence of four years’ imprisonment provided in s. 244.2(3)(

b) Cr.

C. is unconstitutionaland of no force or effect in respect of the accused and, therefore, sentences him, on the two charges, to 90 days’ imprisonment, to beserved concurrently, to be followed by three years’ probation, with the following compulsory conditions and specific conditions: • The accused is prohibited from drinking. • He is prohibited from frequenting bars and any other place where drinks are served, except restaurants to dine. • He must present himself at the probation department of the Quebec City courthouse within 48 hours and, subsequently, as oftenas required for a 24-month probation period. • He must follow all the therapies recommended by his probation officer. • He may serve his period of incarceration intermittently from 9:00 a.m. on Saturday, July 22, at 9:00 a.m. to Sunday, July 23, at4:00 p.m. and for all other weekends totalling his sentence of 90 days’ imprisonment. • He will not be subject to any contact prohibition.

On the first charge, ORDERS the accused to comply with the mandatory prohibition order provided in s. 109 Cr. C. ORDERS the confiscation and destruction of the seized weapons and ammunition. ORDERS the accused to comply with the provisions of s. 487.051 Cr. C., at the time and at the place provided in the order, as the firstcharge concerns a super-primary designated offence. ORDERS the payment of the victim surcharge within 45 days.

__________________________________ HUBERT COUTURE Me Geneviève Bédard For the Crown Me Jean-Francoix Paré For the Attorney General of Quebec Me Alain Dumas For the defendant Date of hearing: March 20, 2015