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Digest of the Week — Mandatory Minimums

2013 CarswellOnt 15470 |
R. v. Charles |
Ontario Court of Appeal


Criminal law | Offences | Firearms and other weapons | Possession offences | Possession of prohibited or restricted firearm with ammunition | Sentencing


Accused was convicted of possession of loaded, prohibited firearm, contrary to s. 95(1) of Criminal Code, together with series of other firearms-related offences | Under s. 95(2)(a), when Crown elects to proceed by way of indictment, person convicted of s. 95(1) firearms offence would be subjected to mandatory minimum sentence of three years’ “imprisonment for first offence and five years” for “second or subsequent offence” | At time of conviction, accused had two prior convictions that qualified as earlier offences under s. 84(5)(a) of Code thus triggering five-year mandatory minimum penalty | Sentence judge dismissed accused’s Canadian Charter of Rights and Freedoms claims and sentenced accused to total of seven years’ imprisonment, less five years’ credit for pre-sentence custody | Accused brought appeal from sentence | Appeal dismissed | Sentence imposed by sentencing judge was affirmed because accused did not challenge his sentence on non-constitutional grounds, and without regard to any mandatory minimum his sentence was entirely fit in all circumstances | Section 95(2) mandatory minimum sentence of five years’ imprisonment did not survive s. 12 Charter scrutiny when tested against s. 95(2)(a)(ii) modified reasonable hypothetical and could not be salvaged by s. 1 of Charter.


Criminal law | Charter of Rights and Freedoms | Life, liberty and security of person [s. 7] | Principles of fundamental justice | Procedural fairness


Accused was convicted of possession of loaded, prohibited firearm, contrary to s. 95(1) of Criminal Code, together with series of other firearms-related offences | Under s. 95(2)(a), when Crown elects to proceed by way of indictment, person convicted of s. 95(1) firearms offence would be subjected to mandatory minimum sentence of three years’ “imprisonment for first offence and five years” for “second or subsequent offence” | At time of conviction, accused had two prior convictions that qualified as earlier offences under s. 84(5)(a) of Code, thus triggering five-year mandatory minimum penalty | Sentence judge dismissed accused’s Canadian Charter of Rights and Freedoms claims and sentenced accused to total of seven years’ imprisonment, less five years’ credit for pre-sentence custody | Accused brought appeal from sentence | Appeal dismissed | Section 95(2)(a)(ii) of Code was of no force and effect to extent that it imposes mandatory minimum sentence of five years’ imprisonment for second or subsequent offence when Crown proceeds by indictment; however, no effect was given to s. 7 Charter challenge | Having concluded that s. 95(2) five-year mandatory minimum penalty constituted cruel and unusual punishment contrary to s. 12 of Charter and that this constitutional violation could not be justified under s. 1, it was unnecessary to address s. 7 claim.


Criminal law | Charter of Rights and Freedoms | Life, liberty and security of person [s. 7] | Principles of fundamental justice | Overbreadth


Accused was convicted of possession of loaded, prohibited firearm, contrary to s. 95(1) of Criminal Code, together with series of other firearms-related offences | Under s. 95(2)(a), when Crown elects to proceed by way of indictment, person convicted of s. 95(1) firearms offence would be subjected to mandatory minimum sentence of three years’ “imprisonment for first offence and five years” for “second or subsequent offence” | At time of conviction, accused had two prior convictions that qualified as earlier offences under s. 84(5)(a) of Code, thus triggering five-year mandatory minimum penalty | Sentence judge dismissed accused’s Canadian Charter of Rights and Freedoms claims and sentenced accused to total of seven years’ imprisonment, less five years’ credit for pre-sentence custody | Accused brought appeal from sentence | Appeal dismissed | Section 95(2)(a)(ii) of Code was of no force and effect to extent that it imposed mandatory minimum sentence of five years’ imprisonment for second or subsequent offence when Crown proceeded by indictment; however, no effect was given to s. 7 Charter challenge | Having concluded that s. 95(2) five-year mandatory minimum penalty constituted cruel and unusual punishment contrary to s. 12 of Charter and that this constitutional violation could not be justified under s. 1, it was unnecessary to address s. 7 claim | Accused failed to demonstrate any constitutionally impermissible overreach in s. 84(5)(a) arising from inclusion in that section of offences under ss. 85(2) and 117.01(1) for stated purposes of determining under s. 95(2) whether s. 95(1) offender had committed second or subsequent offence.


Criminal law | Charter of Rights and Freedoms | Cruel and unusual punishment [s. 12]


Accused was convicted of possession of loaded, prohibited firearm, contrary to s. 95(1) of Criminal Code, together with series of other firearms-related offences | Under s. 95(2)(a), when Crown elects to proceed by way of indictment, person convicted of s. 95(1) firearms offence would be subjected to mandatory minimum sentence of three years’ “imprisonment for first offence and five years” for “second or subsequent offence” | At time of conviction, accused had two prior convictions that qualified as earlier offences under s. 84(5)(a), thus triggering five-year mandatory minimum penalty | Sentence judge dismissed accused’s Canadian Charter of Rights and Freedoms claims and sentenced accused to total of seven years’ imprisonment, less five years’ credit for pre-sentence custody | Accused brought appeal from sentence | Appeal dismissed | Section 95(2) mandatory minimum sentence of five years’ imprisonment did not survive s. 12 Charter scrutiny when tested against s. 95(2)(a)(ii) modified reasonable hypothetical and could not be salvaged by s. 1 of Charter | Appeal was heard together with five other appeals and as such, reasoning in Nur was essentially dispositive of accused’s s. 12 Charter claim | However, without regard to any mandatory minimum, accused’s sentence was entirely fit in all circumstances.



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