On April 14, 2015, the Supreme Court of Canada determined that some mandatory minimum sentences for firearms offences are unconstitutional in R. v. Nur, 2015 SCC 15. The Court found the minimum punishments violated s. 12 of the Charter of Rights and Freedoms which says:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The key portion of the Criminal Code at issue was section s. 95 which talks about prohibited and restricted firearms that are loaded or could be loaded because there is ammunition nearby.  To learn more about these different classes of firearms, read my earlier post Firearms in Canada - Basics:

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, without being 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.

In Manitoba, there were already two decisions from judges in the Court of Queen's Bench about minimum sentences for firearms offences and how they were unconstitutional. First, Justice Suche held the minimum sentence in section 95 violated sections 7, 12, and 15 of the Charter in R. v. Adamo, 2013 MBQB 225. An appeal has been filed by the Crown Attorney's office in this case and it was still pending at the time of this blog post but given the decision from the Supreme Court, I would think the appeal may be withdrawn.

Shortly after this, in October 2013, Justice Menzies concluded the section 12 was violated by a minimum sentence for a different firearm charge in the Criminal Code under section 244 of intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was in that place under section 244 in R. v. McMillan, 2013 MBQB 229. An appeal has been filed by the Crown Attorney's office in this case and it was still pending at the time of this blog post. But this is about a different section of the Criminal Code than what R. v. Nur decided.

At the end of the day, removing the minimum sentence allows the sentencing judge to have discretion to impose a fit and appropriate sentence. In some cases, a 3 year jail sentence or more may still be appropriate. But minimum sentences turn the process into a one-size-fits-all when we know that sentencing is incredibly unique to each case and each set of facts. In fact, sentencing an accused is often described as an art more than a science. Removing minimum sentences allows judges to exercise their discretion and show mercy in cases that warrant it.

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.