Her Majesty the Queen v. Nur, 2013 ONCA 677

Her Majesty the Queen v. Nur

[Indexed as: R. v. Nur]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

November 12, 2013

117 O.R. (3d) 401 | 2013 ONCA 677

Case Summary

Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Mandatory minimum sentence — Possession of loaded restricted or prohibited firearm or unloaded restricted or prohibited firearm with accessible ammunition — Three-year mandatory minimum sentence for offence under s. 95 of Criminal Code unjustifiably violating s. 12 of Charter — Mandatory minimum sentence grossly disproportionate when measured against reasonable hypothetical at regulatory end of s. 95 spectrum — Canadian Charter of Rights and Freedoms, ss. 1, 12 — Criminal Code, R.S.C. 1985, c. C-46, s. 95.

Charter of Rights and Freedoms — Equality before the law — Mandatory minimum sentence — Three-year mandatory minimum sentence under s. 95 of Criminal Code not violating s. 15 of Charter — Canadian Charter of Rights and Freedoms, s. 15 — Criminal Code, R.S.C. 1985, c. C-46, s. 95.

Charter of Rights and Freedoms — Fundamental justice — Mandatory minimum sentence — Two-year gap between maximum one-year sentence for offence under s. 95 of Criminal Code when Crown proceeds summarily and mandatory minimum three-year sentence when Crown proceeds by indictment not making s. 95 arbitrary — Section 95 not violating s. 7 of Charter — Canadian Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C-46, s. 95.

Criminal law — Sentencing — Exemplary sentences for "true crime" end of s. 95 spectrum emphasizing deterrence and denunciation being appropriate — Accused 19-year-old first offender found with loaded semi-automatic prohibited firearm with extended magazine outside community centre — Accused attending school and having good pro-social supports — Appropriate range of sentence absent minimum mandatory sentence of three years being two years less one day to three years.

The accused, a first offender who was 19 years old at the time of the offence and 21 at the time of sentencing, pleaded guilty to possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code. The accused was attending high school and enjoyed the support of a close pro-social family. He was in possession of a loaded 22-calibre semi-automatic handgun outside a community centre. As the Crown proceeded by indictment, the mandatory minimum sentence was three years' imprisonment. The accused challenged the constitutionality of the mandatory minimum penalty. The trial judge found no violation of s. 12 or s. 15 of the Canadian Charter of Rights and Freedoms. He found that the scheme in s. 95, creating a two-year gap between the one-year maximum sentence where the Crown proceeds summarily and the mandatory minimum three-year sentence where the Crown proceeds by indictment, infringed s. 7 of the Charter, but that the accused had no standing to advance the s. 7 claim as there was no reasonable possibility that the Crown would have elected to proceed summarily against him. The accused was given a two-for-one [page402] credit for 20 months of pre-trial custody and was sentenced to an additional one day in jail. The accused appealed.

Held, the appeal should be dismissed; s. 95(2) (a)(i) declared of no force or effect.

The mandatory minimum sentence was not grossly disproportionate as applied to the accused. The appropriate sentence in the absence of the mandatory minimum would have been between two years less a day and three years.

Section 95 encompasses a wide range of conduct and moral blameworthiness. Most prosecutions under s. 95 involve true crime in which the accused is a criminal carrying an illegal weapon as a tool of his trade and there is a real risk of harm. However, the section could also encompass facts more resembling a regulatory or licence infraction. The determination of whether s. 95 violates s. 12 turns on whether it is grossly disproportionate when measured against a reasonable hypothetical. The reasonable hypothetical need not be based on a typical case brought under s. 95; it is sufficient so long as it postulates conduct that includes all of the essential elements of the offence that trigger the mandatory minimum, but no more.

The reasonable hypothetical to be used in the analysis under s. 12 of the Charter has the following characteristics: the accused is knowingly in possession of an unloaded restricted or prohibited firearm with readily accessible ammunition; 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. That reasonable hypothetical involves no harm to anyone or anything and very little, if any, risk of harm to anyone or anything. 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. There is a cavernous disconnect between a reasonable sentence for the offender in the reasonable hypothetical and the three-year mandatory minimum imposed by s. 95 and it is well beyond any punishment that would be considered proportionate to the gravity of the offence. The mandatory minimum sentence violates s. 12 of the Charter. A sentence that amounts to cruel and unusual punishment cannot be justified under s. 1 of the Charter. Section 95(2)(a)(i) is of no force or effect to the extent that it imposes a mandatory three-year minimum sentence when the Crown proceeds by indictment. As the trial judge effectively imposed a sentence of time served, there was no reason to alter that disposition.

The mandatory minimum sentence does not violate s. 15 of the Charter.

The sentencing scheme in s. 95 does not violate s. 7 of the Charter. The two-year gap between the maximum one-year sentence when the Crown proceeds summarily and the mandatory minimum three-year sentence when the Crown proceeds by indictment does not make s. 95 arbitrary. By providing for a maximum of one year if the Crown proceeds summarily, Parliament has severely restricted the flexibility of hybrid procedures. However, that restriction is not arbitrary in the constitutional sense, but is instead consistent with the deterrence and denunciation objectives of s. 95. The more narrow the summary proceeding option, the stronger the deterrence/denunciation message.

R. v. Brown, 1994 29 (SCC), [1994] 3 S.C.R. 749, [1994] S.C.J. No. 95, 173 N.R. 317, 97 Man. R. (2d) 169, 93 C.C.C. (3d) 97, 34 C.R. (4th) 24, 25 W.C.B. (2d) 151, revg 1993 14666 (MB CA), [1993] M.J. No. 46, 83 Man. R. (2d) 216, 80 C.C.C. (3d) 275, 19 C.R. (4th) 140, 18 W.C.B. (2d) 474 (C.A.); [page403] R. v. Goltz, 1991 51 (SCC), [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90, 131 N.R. 1, J.E. 91-1764, 5 B.C.A.C. 161, 61 B.C.L.R. (2d) 145, 67 C.C.C. (3d) 481, 8 C.R. (4th) 82, 7 C.R.R. (2d) 1, 31 M.V.R. (2d) 137, 14 W.C.B. (2d) 206, revg 1990 833 (BC CA), [1990] B.C.J. No. 11, 43 B.C.L.R. (2d) 161, 52 C.C.C. (3d) 527, 74 C.R. (3d) 78, 47 C.R.R. 247, 19 M.V.R. (2d) 89, 9 W.C.B. (2d) 50 (C.A.), affg 1988 7054 (BC SC), [1988] B.C.J. No. 1873, 44 C.C.C. (3d) 166, 66 C.R. (3d) 236, 11 M.V.R. (2d) 120, 6 W.C.B. (2d) 5 (Co. Ct.); R. v. Morrisey, [2000] 2 S.C.R. 90, [2000] S.C.J. No. 39, 2000 SCC 39, 191 D.L.R. (4th) 86, 259 N.R. 95, J.E. 2000-1844, 187 N.S.R. (2d) 1, 148 C.C.C. (3d) 1, 36 C.R. (5th) 85, 77 C.R.R. (2d) 259, 47 W.C.B. (2d) 231; R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, 40 D.L.R. (4th) 435, 75 N.R. 321, [1987] 5 W.W.R. 1, J.E. 87-810, 15 B.C.L.R. (2d) 273, 34 C.C.C. (3d) 97, 58 C.R. (3d) 193, 31 C.R.R. 193, 2 W.C.B. (2d) 303, consd

Other cases referred to

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Statutes referred to

Abolition of Early Parole Act, S.C. 2011, c. 11

Cal. Penal Code 17(b)

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8-14, 12, 15, 24(1)

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52

Controlled Drugs and Substances Act, S.C. 1996, c. 19 [as am.]

Criminal Code, R.S.C. 1985, c. C-46 [as am.], ss. 2 [as am.], Part III [as am.], ss. 84, (3) [as am.], 85 [as am.], 90 [as am.], 91 [as am.], 92 [as am.], 93 [as am.], 94 [as am.], 95 [as am.], (1) [as am.], (2) [as am.], (a) [as am.], (i), (b), (3), 96 [as am.], 100 [as am.], 102 [as am.], 109 [as am.], 113 [as am.], 117.11, 220(a), 236(a), 244(2) [as am.], 279 [as am.], 333.1, Part XXIII [as am.], 719(3), (3.1), 726 [as am.]

Firearms Act, S.C. 1995, c. 39 [as am.], ss. 7(2) [as am.], 12 [as am.], 12.1-16, 17 [as am.], 20 [as am.], 22-28 [as am.], 139

Immigration and Refugee Protection Act, S.C. 2001, c. 27 [as am.]

Motor Vehicle Act, R.S.B.C. 1979, c. 288, ss. 86(1) (a)(ii), 88, (1)

Safe Streets and Communities Act, S.C. 2012, c. 1

Statutes Repeal Act, S.C. 2008, c. 6, s. 8

Authorities referred to

Berger, Benjamin L., "A More Lasting Comfort? The Politics of Minimum Sentences, The Rule of Law and R. v. Ferguson" (2009), 47 S.C.L.R. (2d) 101

Crutcher, Nicole, "Mandatory Minimum Penalties of Imprisonment: An Historical Analysis" (2001), 44 Crim. L.Q. 279

Dufraimont, Lisa, "R. v. Ferguson and the Search for a Coherent Approach to Mandatory Minimum Sentences Under Section 12" (2008), 42 S.C.L.R. (2d) 459

Fish, Morris J., "An Eye for an Eye: Proportionality as a Moral Principle of Punishment" (2008), 28 Oxford J. Legal Stud. 57

Hogg, Peter W., Constitutional Law of Canada, looseleaf, 5th ed. (Toronto: Thomson Carswell, 2007), Rel. 1

Manson, Allan, "Arbitrary Disproportionality: A New Charter Standard for Measuring the Constitutionality of Mandatory Minimum Sentences" (2012), 57 S.C.L.R. (2d) 173

Public Safety Canada, Corrections and Conditional Release Statistical Overview (2012 Annual Report) (Ottawa: Public Works and Government Services Canada, 2012), online: <http:// .publicsafety.gc.ca/cnt/rsrcs/pblctns/2012-ccrs/2012-ccrs-eng.pdf>

Roach, Kent, "Searching for Smith: The Constitutionality of Mandatory Sentences" (2001), 39 Osgoode Hall L.J. 367

Roberts, Julian V., "Mandatory Minimum Sentences of Imprisonment: Exploring the Consequences for the Sentencing Process" (2001), 39 Osgoode Hall L.J. 305

APPEAL by the accused from the sentence imposed by Code J., [2011] O.J. No. 3878, 2011 ONSC 4874, 275 C.C.C. (3d) 330 (S.C.J.). [page406]

Dirk Derstine and Janani Shanmuganathan, for appellant.

Riun Shandler and Andreea Baiasu, for respondent.

Moiz Rahman and Nancy Dennison, for intervenor the Attorney General of Canada.

Paul F. Monahan and Kimberly Potter, for intervenor the Canadian Civil Liberties Association.

Bruce F. Simpson, for intervenor the John Howard Society of Canada.

Virginia Nelder and Faisal Mirza, for intervenor the African Canadian Legal Clinic.

Scott Hutchison and Danielle Robitaille, for intervenor the Advocates' Society.

The judgment of the court was delivered by

DOHERTY J.A.: —

I

Overview

1The court heard this appeal and five others together. The appeals raised constitutional challenges to various provisions of the Criminal Code, R.S.C. 1985, c. C-46 imposing or related to the imposition of mandatory minimum terms of imprisonment for various firearm-related offences. In addition to the common constitutional questions, there are also issues specific to each appeal.

2In these reasons, I will address three issues:

Does the three-year minimum sentence upon conviction for the offence under s. 95 of the Criminal Code (possession of a loaded restricted or prohibited weapon) violate s. 12 of the Canadian Charter of Rights and Freedoms and, if so, can the infringement be justified by s. 1?

Does the three-year minimum sentence violate s. 15 of the Charter and, if so, can the infringement be justified by s. 1?

Is s. 95 rendered arbitrary and, therefore, contrary to s. 7 of the Charter by virtue of the two-year gap that exists between the maximum sentence available when the Crown proceeds summarily (one year) and the mandatory minimum sentence when the Crown proceeds by indictment (three years) and, if so, can the infringement be justified by s. 1? [page407]

3The trial judge found no violation of either ss. 12 or 15 of the Charter. He did find that the scheme in s. 95, creating a two-year gap between the minimum penalty if the Crown proceeded by indictment and the maximum penalty if the Crown proceeded summarily, infringed s. 7 of the Charter. The trial judge held, however, that the appellant had no standing to advance the s. 7 claim as, on the facts, there was no reasonable possibility that the Crown would have elected to proceed summarily against him.

4I would hold that the three-year minimum sentence does infringe s. 12 of the Charter and cannot be saved by s. 1. I would declare the minimum three-year sentence required by s. 95(2)(a) [of the Criminal Code] of no force or effect.

5Although unnecessary to do so, I will address ss. 15 and 7 in deference to the trial judge's thoughtful reasons and counsel's helpful submissions. I agree with the trial judge's s. 15 analysis. I do not, however, agree with his s. 7 analysis. In my view, the two-year gap between the maximum penalty available when the Crown proceeds summarily and the minimum penalty available when the Crown proceeds by indictment does not make s. 95 arbitrary as that word is used in the s. 7 jurisprudence.

6Lastly, as to the fitness of the actual sentence imposed, the trial judge sentenced the appellant to one day in custody and gave him 40 months' credit for 20 months' pre-sentence custody. The Crown does not suggest that the appellant should be reincarcerated. I see no practical value in going through the exercise of determining what would be an appropriate sentence for the appellant in the absence of the mandatory minimum and had he not served the equivalent of a 40-month sentence. I observe only that, even absent the mandatory minimum, and having regard to the appellant's age and his first offender status, a significant jail term was still necessary in the circumstances of this case.

II

Trial Proceedings

A. Overview

7The appellant 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 the appellant elected to be tried by judge alone. The appellant eventually pleaded guilty to the charge. The appellant did not, however, admit any of the facts relevant to the allegation beyond those essential to maintaining the plea, but put the Crown to the strict proof of any facts that the Crown relied on as aggravating [page408] features on sentence. The appellant also challenged the constitutionality of the minimum three-year penalty imposed by s. 95(2)(a)(i).

8A lengthy sentencing hearing ensued in which the parties produced substantial evidence relevant to the constitutionality of the challenged provision, and the Crown led evidence relevant to the circumstances of the offence. The appellant did not testify at the proceedings but did make an unsworn statement from the prisoner's dock pursuant to s. 726 of the Criminal Code. In that statement, the appellant indicated that somebody told him to hold the gun and run if the police came. He was not prepared to give evidence under oath because he had concerns for his own and his family's safety if he had been obliged to identify any of the persons involved. The trial judge ultimately assigned no weight to the appellant's explanation for his possession of the gun.

9In his detailed and careful reasons, the trial judge held that the three-year minimum did not offend ss. 12 or 15 of the Charter. He also made findings of fact in respect of the circumstances surrounding the commission of the offence.

10The trial judge concluded that a sentence of 40 months was appropriate for the offence and the offender, having regard to the mandatory three-year minimum. The appellant had been denied bail and had been in custody for 26 months. The trial judge ultimately determined that the appellant should be given credit on this charge for 20 months of his pre-trial custody. The Crown and the defence agreed that the appellant should get two-for-one credit for those 20 months.¹ Applying that multiplier, the appellant had served the equivalent of 40 months, the same length as the sentence that the trial judge considered appropriate in the circumstances. The trial judge, therefore, imposed a sentence of one day in custody to be followed by two years' probation.

B. Facts relevant to the offence

11The events underlying the charge began at a community centre located in the Jane and Finch neighbourhood of Toronto. That area is described as a "priority" neighbourhood because of its very high levels of poverty, population density and crime. Gun violence is a serious and ongoing problem in that community. [page409]

12Early one winter evening, a young man entered the community centre and spoke to a staff member. He advised the staff member that he was afraid of someone who was waiting outside the community centre to "get him". The staff member saw a person lurking outside who looked very threatening. The staff member decided to put the community centre on lockdown and called the police.

13When the police arrived at the community centre, they saw four men standing at one of the entrances. The appellant was one of the four men. As one of the officers approached the group, all four men ran in different directions.

14The police officer chased the appellant. The appellant was holding his left hand against his body as he ran. He appeared to be concealing something. The officer was rapidly closing ground on the appellant when he saw the appellant throw something away. The officer continued his pursuit, catching and arresting the appellant moments later.

15After arresting the appellant, the officer returned to the area where he had seen the appellant throw something to the ground. The officer found a loaded handgun under a parked car. The gun was a fully operable 22-calibre semi-automatic, equipped with an oversized ammunition clip. There were 23 bullets in the clip and one in the chamber. The gun could fire all 24 rounds in 3.5 seconds. The gun is a prohibited firearm as defined in the Criminal Code.

16The trial judge was not satisfied beyond a reasonable doubt that the appellant had anything to do with the events that led to the police being called to the community centre. He also could make no specific finding as to when, how or why the appellant came into possession of the loaded handgun. The trial judge found, at para. 27:

At some point, Nur [the appellant] came into possession of the prohibited firearm and he hid it under his coat. There is no clear evidence as to how long he had been in possession of the gun or how he came to possess it.

C. Facts relating to the offender

17The appellant was 19 years old at the time of his arrest and 21 at the time of sentencing. He was born in Somalia. His family fled the armed conflict in that country, going first to the United States. When the appellant was five years old, his family crossed into Canada and claimed refugee status. Since then, the family has lived in Canada. The appellant has permanent resident status.

18The appellant is the sixth of nine siblings. All the children live with their parents in a home located in the same part of the [page410] city as the community centre. The appellant's father is the dominant person in the household. He is a firm but loving parent.

19The appellant's family is, by all accounts, a strong, close and loving one. All the children go to school, work or do both. None, other than the appellant, has had any trouble with the law. The family was shocked by the charges brought against the appellant. The appellant's older brother testified that, in the future, the entire family would be watching the appellant closely to ensure that he does not get into trouble again.

20At the time of his arrest, the appellant was attending high school. He was doing well academically and hoped to attend York University in the future.

21The appellant had worked various part-time jobs and also performed volunteer work in the community. Teachers and previous employers spoke highly of his performance and his potential. One employer referred to him as "Mr. Reliable".

22The trial judge summarized the evidence concerning the appellant in these terms, at para. 35:

It can be seen that Nur is a young man with considerable potential. He also has the good fortune to come from a strong pro-social family who remain very supportive. Finally, he is a first offender with no apparent criminal antecedents.

23As a permanent resident, the appellant is subject to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which provides for deportation on grounds of "serious criminality". Should immigration officials decide to deport the appellant to Somalia, a country he has not been in since he was a very young child, that decision could only be appealed to the appeal division of the Immigration and Refugee Board if the appellant received an effective sentence of less than two years. On the evidence before the trial judge, the possibility that the appellant would actually be deported to Somalia could not be quantified.

III

The Section 12 Challenge

A. Introduction

24Section 12 of the Charter reads:

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

25Clearly, the imposition of a jail sentence upon conviction is a "punishment" that engages s. 12. Section 12 will be infringed if the punishment is "grossly disproportionate". I will examine the [page411] concept of gross disproportionality as developed in the s. 12 case law in detail below.

26Before turning to the s. 12 jurisprudence, I will place s. 95 in its legislative context and outline the purpose of the section. I do so because punishment cannot be grossly disproportionate in its own right. Proportionality describes a relationship between two things. In the present case, it is the relationship between the length of the mandatory minimum penalty demanded by the statutory provision on the one hand, and the purpose of the statute, the nature of the prohibited conduct and the circumstances of the offender on the other hand. The prohibited conduct is described by the terms of the Criminal Code provision creating the offence.

B. Section 95

27Section 95(1) provides:

95(1) Subject to subsection (3),² 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.

28The offence created by s. 95 is a Crown election or hybrid offence. If the Crown proceeds by indictment, the offence is punishable by a maximum of ten years' and a minimum of three years' imprisonment. The minimum increases to five years for a second or subsequent offence. If the Crown proceeds summarily, there is no minimum and the maximum is one year: s. 95(2).³ [page412]

(i) Statutory context

29Canada has a long history of gun control legislation: see R. v. Schwartz, 1988 11 (SCC), [1988] 2 S.C.R. 443, [1988] S.C.J. No. 84, at p. 483 S.C.R. Currently, Parliament, using its criminal law power to further public safety and deter crime, has established a scheme that combines a strict licensing and registration component found principally in the Firearms Act, S.C. 1995, c. 39 with a number of supporting restrictions, investigative powers and criminal prohibitions found in Part III of the Criminal Code, "Firearms and Other Weapons": see Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, [2000] S.C.J. No. 31, 2000 SCC 31 ("Firearms Reference").

30Under the scheme, firearms, a defined term in s. 2 of the Criminal Code, fall into three categories: prohibited firearms, restricted firearms and all other firearms: see Firearms Reference, at para. 6. The terms "prohibited firearm" and "restricted firearm" are defined in s. 84 of the Criminal Code. Other guns that meet the definition of a firearm, but do not fall within the definition of a prohibited or restricted firearm, are classified as "firearms". Long rifles and shotguns are two examples of guns that are firearms but that are not prohibited or restricted firearms.⁴

31The definitions of a prohibited firearm and a restricted firearm are somewhat complex. For present purposes, a prohibited firearm includes short-barrelled handguns,⁵ sawed-off rifles and shotguns, and automatic firearms. A restricted firearm is defined to include any handgun that is not a prohibited firearm, some semi-automatic firearms and some firearms that are less than the specified length.

32Firearms that fall within the definition of either a prohibited or restricted firearm are commonly connected to criminal activity and seldom associated with any legitimate employment or activity. Firearms that do not fall within either definition, e.g., long rifles and shotguns, are associated with legitimate activities such as hunting and farming.

33The Firearms Act requires that anyone wishing to possess any firearm must obtain a licence. Licences authorizing the possession of prohibited and restricted firearms, including [page413] handguns, are available under the Firearms Act but only in very limited circumstances: see Firearms Act, ss. 7(2) and 12.

34In addition to requiring a licence to possess any firearm, the Firearms Act requires a person seeking a licence to also obtain a registration certificate for that firearm: Firearms Act, s. 12.1. A prohibited or restricted firearm must be registered by a person who holds a licence authorizing that person to possess that weapon. With one small exception, a registration certificate may be issued to only one person: Firearms Act, ss. 12.1-16.

35Even if a person obtains the necessary licence and registration certificate, the Firearms Act places significant restrictions on where that person can possess the firearm, especially if the firearm is a prohibited or restricted firearm. Section 17 provides that such firearms may be possessed only at the individual's dwelling as identified in the Canadian Firearms Registry, or at some other place authorized by the chief firearms officer.

36There are also provisions in the Firearms Act requiring that licensed persons obtain authorization to transport firearms from one designated place to another, and provisions imposing restrictions on the transfer and lending of firearms. Once again, prohibited and restricted firearms are singled out for especially strict restrictions: see Firearms Act, ss. 22-28. A good example of the very specific and restrictive nature of authorizations to possess and transport restricted or prohibited firearms is found in the facts of R. v. MacDonald, [2012] N.S.J. No. 252, 2012 NSCA 50, 283 C.C.C. (3d) 308, at para. 7 (S.C.C. appeal heard May 23, 2013).

37A person who has a licence to possess a handgun, by definition either a restricted or prohibited firearm, and who has registered that handgun may obtain authorization to carry that handgun. A "carry" permit, however, is available only in respect of a handgun that was subject to a licence or permit prior to December 1998: Firearms Act, s. 20. In addition to that requirement, the person seeking a "carry" permit must show that he or she needs the gun to protect his or her life or the lives of others, or that he or she needs the gun in connection with a lawful profession or occupation. Apart from recognized exceptions, most notably the police, very few people in Canada are authorized to carry a handgun.

38The licensing and registration requirements in the Firearms Act are supported by a series of Criminal Code provisions criminalizing the possession of firearms where that possession contravenes the terms and conditions of the scheme established under the Firearms Act. I will briefly review those provisions. [page414]

39Section 90 [of the Criminal Code] prohibits the carrying of a concealed weapon.⁶ The prohibition does not apply if the person is authorized to carry the weapon under the Firearms Act. The offence created by s. 90 is a hybrid offence punishable by a maximum of five years if the Crown proceeds by indictment. There is no minimum.

40Sections 91 and 92 are similar; however, s. 92 contains an added mens rea component which requires that the accused know that he or she is not the holder of the required licence and registration certificate: R. v. Meer, [2011] A.J. No. 16, 2011 ABQB 8; and R. v. Egonu, 2007 CarswellOnt 1985 (S.C.J.). Both sections prohibit the possession of any firearm by a person who does not have the required licence and, if the firearm is a prohibited or restricted firearm, the required registration certificate. Section 91 is a hybrid offence punishable by a maximum of five years if the Crown proceeds by indictment. There is no minimum. Section 92 is an indictable offence punishable by a maximum of ten years. It carries no minimum penalty for a first offence, but does carry a minimum penalty of one year for a second offence and two years less a day for a third or subsequent offence.

41Section 93 prohibits the possession of a firearm by a person who is a holder of a licence and, in the case of a prohibited or restricted firearm, a registration certificate, at a place other than the place identified in the licence or authorization. Section 93 is a hybrid offence which carries a maximum penalty of five years if the Crown proceeds by indictment. There is no minimum penalty.

42Section 94 criminalizes being in a motor vehicle in which the person knows there is a firearm, unless an occupant of the motor vehicle is the holder of a licence (and, in the case of a prohibited or restricted firearm, a registration certificate), or unless the person charged has reasonable grounds to believe that an occupant of the vehicle is a holder of the licence and registration certificate. The offence created by s. 94 is a hybrid offence and carries a maximum penalty of ten years if the Crown proceeds by indictment. There is no minimum penalty.

43Section 95, the section in issue, came into force in December 1998: [Firearms Act,] S.C. 1995, c. 39, s. 139. It prohibits the [page415] 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". The offence applies to anyone 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 in issue and a registration certificate for the firearm.

44Section 95 is a hybrid offence punishable by a maximum of ten years if the Crown proceeds by indictment. Initially, 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, the minimum sentence was increased to three years for a first offence and five years for a subsequent offence if the Crown proceeded by indictment: [Statutes Repeal Act,] S.C. 2008, c. 6, s. 8. The one-year maximum if the Crown proceeded summarily was not changed.

45Section 95 carries a more serious penalty than do any other possession simpliciter offences. The penalty reflects two aggravating factors found in the provision. Section 95 applies to prohibited and restricted firearms, and not to other firearms, and it applies only if the firearm is loaded or if ammunition for the firearm is readily available.

(ii) The elements of the section 95 offence

46Criminal offences are typically analyzed in terms of their conduct component (the actus reus) and their fault component (the mens rea): R. v. H. (A.D.), [2013] S.C.J. No. 28, 2013 SCC 28, 295 C.C.C. (3d) 376, at para. 1. The actus reus of the s. 95 offence can be described as follows:

possession of a firearm that falls within the definition of either a prohibited or restricted firearm;

the firearm must be loaded or, if unloaded, useable ammunition must be readily accessible. "Readily accessible" ammunition has been interpreted as meaning ammunition that can be accessed quickly and without difficulty: see R. v. Khan, 2007 462 (ON SC), [2007] O.J. No. 137, 217 C.C.C. (3d) 209 (S.C.J.), at para. 17; and

the accused must not be the holder of either a licence or authorization permitting possession at the place where the offence allegedly occurred, or a registration certificate for the firearm. [page416]

47The Crown must prove each element of the actus reus beyond a reasonable doubt, including the requirement that the accused did not have the required licence or authorization, and registration certificate: see R. v. Cairns, [2007] B.C.J. No. 2513, 2007 BCCA 572, 227 C.C.C. (3d) 149.

48The mens rea of a s. 95 offence, as with most possession-based offences, consists of knowledge or wilful blindness of the existence of the elements of the actus reus: see R. v. Briscoe, [2010] 1 S.C.R. 411, [2010] S.C.J. No. 13, 2010 SCC 13, 253 C.C.C. (3d) 140, at para. 21. The Crown must prove the following:

the accused knew or was wilfully blind that he or she was in possession of the firearm in issue: see R. v. Williams (2009), 95 O.R. (3d) 660, [2009] O.J. No. 1692, 2009 ONCA 342, 244 C.C.C. (3d) 138, at paras. 10 and 18; R. v. Chalk (2007), 88 O.R. (3d) 448, [2007] O.J. No. 4627, 2007 ONCA 815, 227 C.C.C. (3d) 141, at para. 18; and R. v. Snobelen, [2008] O.J. No. 6021 (C.J.), at paras. 34-35;

the accused knew or was wilfully blind that the firearm was loaded or, if unloaded, knew or was wilfully blind that useable ammunition was readily accessible; and

the accused knew or was wilfully blind that he or she did not have both the required licence or authorization to possess the firearm at the place alleged and the required registration certificate: MacDonald, at para. 84.⁷

49Section 95 casts a "wide net": MacDonald, at para. 47. Unlike some firearm offences that carry a substantial minimum penalty (e.g., manslaughter, at s. 236(a), and criminal negligence causing death, at s. 220(a)), s. 95 does not require proof of any harm, or even any risk of harm, to any other person as a result of the possession of the firearm. Nor, unlike other sections carrying a mandatory minimum (e.g., discharging a firearm at a person with intent to wound, at s. 244(2)), does s. 95 require proof of an intention to cause any harm, recklessness as to the potential [page417] for harm flowing from the possession, or even criminally negligent behaviour relating to the firearm. It is irrelevant to a charge under s. 95 that the accused took all necessary precautions to ensure the safety of others.

50Section 95 differs from other firearm possession offences that carry a minimum penalty in another respect. Unlike, for example, the offences created by ss. 85, 96, 100 and 279, there is no requirement in s. 95 that the Crown prove that the possession of the firearm was connected to some other unlawful activity or intended unlawful activity. Possession is criminal under s. 95 even if it is entirely untainted by any other unlawful activity.

51The scope of s. 95 is best understood by considering the range of potential offenders caught by that section. At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person's conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.

52There is no doubt that the vast majority of persons charged under s. 95 fall at the true crime end of the spectrum. Most guns that are the subject matter of a s. 95 charge exist entirely outside of the regulatory scheme established under the Firearms Act. Most people charged under s. 95 would never think of applying for a licence and, were they to apply, would never obtain a licence or a registration certificate. Furthermore, the vast majority of s. 95 charges arise in situations where the possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons.

53The reality that the vast majority of s. 95 offenders will be engaged in conduct that would be classified as dangerous and criminal under any definition does not alter the reach of the section as drawn by Parliament. Section 95 applies not only to offenders like the appellant, whose conduct poses an immediate and serious risk to the public, but also to persons whose conduct cannot be said to pose any real risk to the public. The potential application of the mandatory minimum to persons at what [page418] I have called the regulatory end of the s. 95 spectrum figures prominently in the s. 12 analysis.

(iii) The purpose of section 95

54The purpose of s. 95 is obvious and non-controversial. All firearms pose a danger, both to users and to others. The possession and use of firearms have been tightly regulated in Canada for many years. Experience teaches that certain kinds of firearms, e.g., handguns, sawed-off rifles and automatic firearms, are the weapons of choice of the criminal element. Those kinds of firearms pose an added danger to the public. They become even more dangerous when loaded or when useable ammunition is readily available to the person in possession of the firearm.

55Section 95 seeks to protect the public by criminalizing the possession of potentially dangerous firearms in circumstances that increase the danger posed to the public by the possession of those firearms. By criminalizing possession simpliciter, the criminal law can intercede before someone is actually harmed and before criminal activity, so often associated with the possession of these kinds of firearms, actually occurs or is attempted.

56Section 95 is, without question, a valid expression of the federal criminal law power: Firearms Reference, at para. 33. Nor, in my view, can it be successfully argued that the criminal prohibition created by s. 95, coupled with a mandatory minimum penalty, is not a rational legislative response to the very real public safety concerns associated with the possession of the kinds of firearms described in s. 95, either when loaded or readily capable of being loaded. In 1994-1995 and again in 2005-2006, Parliament had before it a wealth of information indicating that gun violence and related criminal activity were taking a massive human and economic toll, especially in communities in Canada's large cities where social and economic conditions provided fertile ground for gang-related activities. Young males in those communities were particularly likely to be caught up in gun violence, both as users and as victims. The evidence before Parliament in 2005-2006 indicated that earlier attempts to stem the increase in gun violence and related criminal activity had not been successful.

57Parliament reacted to these very real public safety concerns with a package of legislation, one part of which provided for a lengthy mandatory minimum jail sentence for those convicted under s. 95, if the Crown chose to proceed by indictment. The certainty that a significant jail term would follow upon conviction for a s. 95 offence reflected Parliament's determination that the community could best be protected by severe sentences [page419] that would denounce gun-related activity, deter those who might resort to such activity and incapacitate for significant periods those who chose to engage in such activity.

58A constitutionally valid legislative purpose and a means that is rationally connected to that purpose does not guarantee that the means chosen to achieve the purpose is constitutional: see R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36, at p. 1071 S.C.R. The constitutionality of the means chosen here -- the three-year minimum jail term -- falls to be determined under s. 12 of the Charter.

C. The gross disproportionality analysis

(i) Section 12 is a principle of fundamental justice

59For convenience, I repeat the terms of s. 12:

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

60Section 12 provides constitutional protection against state-inflicted punishment that is cruel and unusual. Section 12 claims can be based on the nature of the punishment, the conditions in which the punishment is served, the duration of the punishment or some combination of those factors: see Peter W. Hogg, Constitutional Law of Canada, looseleaf, 5th ed. (Toronto: Thomson Carswell, 2007), Rel. 1, at pp. 53-3 to 53-4. This appeal raises the most common kind of s. 12 claim. The appellant argues that the mandatory minimum penalty of three years is cruel and unusual primarily because of its length.

61A statutory provision which imposes a mandatory minimum jail term engages s. 7 of the Charter. A person who is subject to that penalty suffers a deprivation of his or her liberty. That deprivation is constitutional only if it is consistent with the principles of fundamental justice.

62Section 12, like the other legal rights protected in ss. 8 to 14 of the Charter, is illustrative of a principle of fundamental justice. Punishment that is cruel and unusual is an interference with liberty that is contrary to the principles of fundamental justice: Reference re Motor Vehicle Act (British Columbia) S 94(2), 1985 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, at pp. 501-502 S.C.R.

63A claim that a statutorily imposed sentence is so harsh as to constitute an infringement on liberty that is inconsistent with the principles of fundamental justice falls to be determined exclusively under the s. 12 prohibition against cruel and unusual punishment. Attempts to introduce some less stringent standard against which to measure the constitutionality of mandatory [page420] minimum sentences under the rubric of the principles of fundamental justice have been rejected: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 2003 SCC 74, at para. 160.⁸

(ii) What is "cruel and unusual" punishment?

64The words "cruel and unusual" have a long constitutional pedigree and are used together as "a compendious expression of a norm" to describe a punishment that is so beyond what would be proper or proportionate punishment as to be grossly disproportionate: R. v. Miller, 1976 12 (SCC), [1977] 2 S.C.R. 680, [1976] S.C.J. No. 91, at pp. 689-90 S.C.R., per Laskin C.J., concurring; and Smith, at p. 1072 S.C.R.

65A sentence may be excessive, even sufficiently excessive to warrant appellate intervention, despite the high deference owed to sentences imposed at trial, and still not reach the level of gross disproportionality: see Smith, at p. 1072 S.C.R.; R. v. Morrisey, [2000] 2 S.C.R. 90, [2000] S.C.J. No. 39, 2000 SCC 39, at para. 26; R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990 (C.A.), at p. 665 O.R.; and R. v. K. (R.), 2005 21092 (ON CA), [2005] O.J. No. 2434, 198 C.C.C. (3d) 232 (C.A.), at para. 66.

66The Supreme Court of Canada has consistently used strong language to describe the kind of sentence that will run afoul of s. 12. For example, Laskin C.J.C. in Miller, at p. 688 S.C.R., described a cruel and unusual sentence as one that is "so excessive as to outrage standards of decency". His language echoes throughout the Supreme Court of Canada's s. 12 jurisprudence. In R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, at para. 14, the present chief justice said:

As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable".

(Citation omitted)

67I see no value in characterizing the gross disproportionality inquiry as objective, subjective or a combination of the two. As with the application of any legal standard, the inquiry cannot turn simply on the individual judge's personal sense of the [page421] harshness of the sentence, or on the individual judge's perception of the public reaction to the sentence. Identifiable criteria drawn from legal sources generally looked to when fixing sentences will guide the gross disproportionality inquiry. In broad terms, that inquiry demands a comparison of the minimum penalty required by the challenged statute with what would be regarded as an appropriate range of sentence for the same offence committed by the same offender but for the challenged mandatory minimum.

68Again, in broad terms, the comparative exercise described above looks to a variety of factors, including the specifics of the offence and the offender, the gravity of the offence as reflected in the statutory provision creating the offence, the generally applicable principles of sentencing, the kinds of sentences imposed for similar or related offences, the social harm targeted by the mandatory minimum penalty and the purpose animating Parliament's decision to use a mandatory minimum sentence.

69Until relatively recently, mandatory minimum jail terms were a rarity in Canadian criminal law: see Nicole Crutcher, "Mandatory Minimum Penalties of Imprisonment: An Historical Analysis" (2001), 44 Crim. L.Q. 279; and Julian Roberts, "Mandatory Minimum Sentences of Imprisonment: Exploring the Consequences for the Sentencing Process" (2001), 39 Osgoode Hall L.J. 305. There is, however, no presumption that a mandatory minimum penalty is constitutionally suspect: see Smith, at p. 1077 S.C.R. Sentencing policy is first and foremost Parliament's responsibility. A mandatory minimum is a "forceful expression of government policy in the area of criminal law": R. v. Nasogaluak, [2010] 1 S.C.R. 206, [2010] S.C.J. No. 6, 2010 SCC 6, at para. 45; Ferguson, at para. 54; and R. v. Gill (2012), 112 O.R. (3d) 423, [2012] O.J. No. 4332, 2012 ONCA 607, at para. 45. Simply because mandatory minimums restrict judicial discretion, long the centrepiece of the sentencing process in Canada, does not mean that they offend the constitutional norm in s. 12. As with any other constitutional challenge, the onus of proof rests on the party alleging the Charter violation: see R. v. Goltz, 1991 51 (SCC), [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90, at pp. 518-20 S.C.R.

70The case law reflects the high bar set by the gross disproportionality standard. After Smith, no decision of the Supreme Court of Canada or this court has declared a mandatory minimum jail term unconstitutional under s. 12. As observed by Cory J. in Steele v. Mountain Institution, 1990 50 (SCC), [1990] 2 S.C.R. 1385, [1990] S.C.J. No. 111, at p. 1417 S.C.R.: [page422]

It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding.

71The stringent gross disproportionality standard is justified on two grounds. First, s. 12, like other constitutional protections, sets a minimum standard for legislation. Section 12 fixes the outer boundary of Parliament's authority over sentencing in criminal matters: see Smith, at pp. 1107-1108 S.C.R., per McIntyre J., dissenting. Section 12 is not intended to constitutionalize any particular penological policy or theory, or to prohibit any legislation that the court may see as unreasonable or falling short of a best practices standard. Properly restrained judicial constitutional review accepts the primary law-making responsibility of legislatures by acknowledging the wide ambit of legislative choices available to elected officials.

72Second, the stringency of the gross disproportionality standard is justified by the nature of sentencing in the criminal law. The fixing of an appropriate penalty, or more usually an appropriate range of penalties, is far from a science. Different punishments can be justified using various theories of punishment. Thus, a punishment regime that emphasizes utilitarian concerns will in many cases impose a very different sentence than would a regime emphasizing a "just desserts" model of sentencing. Neither theory enjoys a constitutional status: see Morris J. Fish, "An Eye for an Eye: Proportionality as a Moral Principle of Punishment" (2008), 28 Oxford J. Legal Stud. 57.

73Part XXIII of the Criminal Code describes the fundamental purpose of sentencing in Canadian criminal law and identifies the operative principles of sentencing. While both utilitarian and "just desserts" considerations are evident in the various sentencing principles identified in Part XXIII, the overall aim of Part XXIII is to impose a sentence that is tailored to both the offence and the offender. Individualized sentencing through the exercise of judicial discretion sounds the keynote of Part XXIII.

74Part XXIII does not, however, describe a constitutional standard. In the same way that Part XXIII reflects Parliament's authority over and responsibility for penal policy, specific statutory provisions that depart from the generally applicable approach to sentencing in Part XXIII reflect that same authority and responsibility. Mandatory minimums that limit judicial discretion on sentencing are as much a reflection of sentencing policy as are the statutory provisions that create broad sentencing discretion. The gross disproportionality standard recognizes that Parliament is free to set sentencing policy, even a policy [page423] that restricts the individualized approach to sentencing in Part XXIII, so long as the policy does not impose sentences that are so excessive as to be grossly disproportionate: Ferguson, at para. 54; and Goltz, at pp. 501-503 S.C.R.

(iii) The two-step inquiry into gross disproportionality

75A claim that a mandatory minimum sentence constitutes cruel and unusual punishment is tested in two ways. First, the court must decide whether the punishment is grossly disproportionate as applied to the accused before the court. This particularized inquiry asks whether the mandatory minimum is a grossly disproportionate punishment for the particular accused in the particular circumstances: Goltz, at p. 505 S.C.R.

76If the sentence survives the particularized inquiry, the court goes on to decide whether the sentence is grossly disproportionate when applied to reasonable hypotheticals: see Goltz, at pp. 505-506 S.C.R. The selection of an appropriate reasonable hypothetical is a matter of some controversy and is the key to the outcome of this constitutional challenge.

77If a minimum penalty fails either the particularized or reasonable hypothetical component of the gross disproportionality inquiry, the provision, assuming it cannot be "saved" by s. 1 of the Charter, will be found to violate s. 12. After some doubt, it is now established that if a mandatory minimum sentence violates s. 12, the remedy lies under s. 52 of the Constitution Act, 1982. The offending provision to the extent that it is inconsistent with s. 12 will be of "no force or effect" and will be struck down. A more narrow case-specific remedy in the form of a constitutional exemption applicable to the individual accused is not an available remedy: Ferguson, at paras. 34-74.

78A number of factors may inform the gross disproportionality analysis, both as it applies to the particular accused and to reasonable hypotheticals: see Smith, at p. 1073 S.C.R.; Goltz, at paras. 25-27; and Morrisey, at paras. 27-28. The factors identified in the case law are

-- 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 sentencing principles reflected in the challenged minimum; [page424]

the existence of valid effective alternatives to the mandatory minimum; and

-- a comparison of punishments imposed for other similar crimes.

79There is no formula to be applied in weighing and assessing the various factors in any given case: R. v. Latimer, [2001] 1 S.C.R. 3, [2001] S.C.J. No. 1, 2001 SCC 1, at para. 75. Several of the factors are self-explanatory; however, the gravity of the offence, the actual effect of the punishment on the individual, and the impact of penological goals and sentencing principles require further comment.

(a) The gravity of the offence

80If, as in this case, the challenged mandatory minimum penalty requires the imposition of a three-year penitentiary term, a significant period of incarceration by any measure, the gravity of the offence will probably be the most important single factor in assessing constitutionality under the gross disproportionality standard. Unless an offence that attracts a three-year minimum sentence can be described as a serious criminal offence, I do not see how a three-year minimum sentence could survive a s. 12 challenge.

81The gravity of the offence is measured by reference to the essential elements of the offence that the Crown must prove to establish guilt and not by the circumstances surrounding the commission of the offence in the particular case before the court. The particularized factors are separately addressed in the s. 12 analysis. For the purpose of measuring the gravity of the offence, a more generic approach to the offence is taken.

82It cannot be gainsaid that all crime is serious. In describing the gravity of a particular crime, however, one necessarily speaks in relative terms and by reference to the seriousness of other crimes, particularly related crimes. When speaking of firearm-related offences, the seriousness inquiry, while acknowledging the inherent danger of all firearms, must go beyond that level of generality to the specifics of the offence as described in the offence-creating provision.

83The seriousness of a crime is the product of the harm targeted by the elements of the crime and the moral culpability required to establish guilt for the crime. The greater the harm and the higher the moral culpability, the more serious the crime.

84I use the word "harm" in a broad sense to refer to a variety of consequences ranging from death, to injury to another, to [page425] damage to property, to interference with other legally protected interests, or to the risk of one or more of those consequences. Crimes that require proof of actual harm to others, especially death, are generally more serious than crimes that prohibit other forms of harm. Crimes that do not require proof of any harm or risk of harm of any kind are generally less serious than crimes that do require proof of some kind of harm or risk of harm.

85As explained above, while most s. 95 offences will involve conduct that at the very least poses a risk of harm to others, s. 95 as written does not require proof of any harm or proof of any realistic risk of harm flowing from the unauthorized possession of the restricted or prohibited firearm. Evidence that the firearm was safely stored and posed virtually no risk to anyone would not afford a defence to a s. 95 charge. In short, proof that the accused's conduct harmed or posed a risk of harm to others is not a prerequisite to the imposition of a three-year penitentiary sentence under s. 95.

86The moral culpability component of an offence, the second factor to be considered when assessing seriousness, usually refers to the mental state that must accompany the commission of the prohibited act. There are a variety of culpable mental states, including intention, recklessness and knowledge. An intention to bring about a prohibited consequence ranks at the top of the criminal law hierarchy of blameworthiness or moral culpability.

87Although moral culpability is generally reflected in a mens rea requirement, blameworthiness can lie in the nature of the conduct engaged in, as for example where proof of criminally negligent conduct will suffice to establish guilt. Blameworthiness based on the nature of the conduct as opposed to the offender's mental state will usually reduce the seriousness of the offence. Thus, criminal negligence causing death is significantly less serious than murder, even though the conduct and consequences required for the two crimes may be identical: see Morrisey, at para. 36.

88Section 95 is a mens rea offence. It requires proof of knowledge or wilful blindness of the elements of the actus reus of the offence. The requirement that the Crown establish knowledge increases the moral culpability or blameworthiness of an accused's conduct and, therefore, increases the seriousness of the offence: Goltz, at p. 507 S.C.R.

89The broad scope of the conduct captured by s. 95 makes it difficult to come to any definitive conclusion as to the relative gravity of the conduct proscribed by s. 95. Unlike other firearm [page426] provisions that carry a significant mandatory minimum sentence for a first offence, there is no common denominator in the conduct captured by s. 95 that allows one to say that, because of the harm involved, a s. 95 offence is a very serious criminal offence. Indeed, Parliament has recognized that s. 95 offences are not inherently serious crimes by providing that the Crown can proceed summarily, in which case there is no mandatory minimum and the full panoply of sentencing options, including discharges, are available to the sentencing judge.

90In attempting to gauge the seriousness of a s. 95 offence, it is helpful to compare that offence to the offence of criminal negligence causing death with a firearm. That offence attracts a four-year minimum under s. 220(a) and can be committed in an infinite variety of fact situations. However, all those fact situations require proof that the accused's conduct caused the death of another person. The most serious of all possible harms is, therefore, a common element of all offences punishable under s. 220(a). No such common feature can be found in the conduct component of s. 95. Indeed, the section is written to eliminate even the requirement that the firearm be loaded, the strongest harm-related component of the offence as defined in s. 95.

91The reach of the offence described in s. 95 is more akin to that of the offence of importing a narcotic into Canada considered in Smith. Like the importation offence, s. 95 requires proof of blameworthiness through a knowledge requirement. Also like s. 95, the conduct captured by the importation offence encompasses widely differing levels of harm ranging from the virtually non-existent (importation of a very small amount of marijuana) to the devastating (the importation for resale of large amounts of cocaine). 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.⁹

92In summary, while the offence under s. 95 will almost always involve some element of risk of harm, and must in all cases involve knowledge or wilful blindness of the existence of the elements of the offence, the harm associated with a s. 95 offence is significantly, if not entirely, attenuated in some fact situations that still fall squarely within the prohibition created [page427] by s. 95 and that attract the mandatory minimum if the Crown proceeds by indictment.

(b) The actual effect of the punishment on the individual

93The gross disproportionality analysis is not done in the abstract. The actual impact of the sentence on the offender must be considered. The conditions under which the offender will serve his or her sentence and any particular negative effects the sentence may have on an offender are relevant considerations. If an offender seeks to show some special negative impact flowing from the imposition of the mandatory minimum penalty, evidence to support that contention will be necessary. However, I think judges can take judicial notice that first offenders, especially young first offenders, will have a difficult time when placed in the federal penitentiary system.

94It is also understood that persons sentenced to a specific term of imprisonment in Canada will seldom serve the full term in custody. Credit for pre-sentence custody and the operation of the parole system will have a very real impact on the actual sentence to be served by an offender.

95If a convicted person is incarcerated prior to sentencing, the trial judge may deduct a credit for pre-sentence custody from the mandatory minimum: R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19, 2000 SCC 18; and McDonald. The calculation for pre-trial custody is now controlled by s. 719(3) and (3.1). Those provisions set the credit at one day for each day in pre-sentence custody, subject to an increase to one and one-half days for each day in pre-sentence custody "if the circumstances justify it": see R. v. Summers (2013), 114 O.R. (3d) 641, [2013] O.J. No. 1068, 2013 ONCA 147, leave to appeal to S.C.C. granted August 15, 2013: [2013] S.C.C.A. No. 191; and R. v. Bradbury, [2013] B.C.J. No. 1261, 2013 BCCA 280, 298 C.C.C. (3d) 31.

96Credit for pre-sentence custody does not mean that the offender receives a sentence which is less than the mandatory minimum. Particularly after the enactment of s. 719(3.1), credit for pre-sentence custody affects the impact of the mandatory minimum not by reducing the sentence below that minimum, but by avoiding the potential gross disproportionality that could occur were an accused required to serve the entirety of a mandatory minimum after already serving a significant period of time in pre-sentence custody: see McDonald, at p. 669 O.R.

97The potential impact of pre-sentence custody on the actual sentence to be served by an accused subject to a mandatory minimum is demonstrated on the facts of this case. The trial [page428] judge, as he was entitled to do at the time, gave the appellant two-for-one credit for his pre-sentence custody. Based on that calculation, he imposed a further period of incarceration of one day. Consequently, the mandatory minimum sentence had no practical impact on the time spent in custody by the appellant.

98Parole and other forms of post-sentence mitigation of time spent in custody must also be taken into account when considering whether the sentence imposed meets the gross disproportionality standard: R. v. Luxton, 1990 83 (SCC), [1990] 2 S.C.R. 711, [1990] S.C.J. No. 87, 58 C.C.C. (3d) 449, at p. 460 C.C.C.; Goltz, at p. 514 S.C.R.; and Morrisey, at para. 55. To assume for the purpose of constitutional analysis that a sentence of three years means that a person will serve three years in jail is to ignore the reality of the Canadian penal system. Parole will, in most cases, reduce, sometimes significantly, the actual time spent in custody by an individual offender. That, of course, is not to say that parole is a right or that offenders on parole do not have substantial restrictions on their liberty. However, parole undoubtedly mitigates the impact of a sentence on an offender.

99Evidence as to the likelihood of parole for a specific offender would clearly be admissible on a s. 12 challenge. Public Safety Canada data indicates that between 2001 and 2011, persons sentenced to penitentiary terms served about 32 per cent of their sentences before receiving day parole and about 38 per cent before receiving full parole. The same statistics for 2012 indicate that the average federal prisoner in 2012 served about 38 per cent of his or her sentence before receiving day parole and about 41.5 per cent before receiving full parole: Public Safety Canada, Corrections and Conditional Release Statistical Overview (2012 Annual Report) (Ottawa: Public Works and Government Services Canada, 2012), online: <http://www.publicsafety.gc.ca/cnt/ rsrcs/ pblctns/2012-ccrs/2012-ccrs-eng.pdf>, at pp. 83-84. These increases are apparently attributable to the Abolition of Early Parole Act, S.C. 2011, c. 11.¹⁰

100Averages do not predict the date of parole for any particular offender. It is, however, realistic to assume that the kind of offender for whom a three-year minimum jail term could most likely be described as grossly disproportionate is the very same [page429] offender who would be most likely to gain early release on day parole and then full parole.

(c) Penological goals and sentencing principles

101The gross disproportionality analysis must also examine the rationale for the minimum sentence and its justification under recognized sentencing principles. As explained in Morrisey, at paras. 43-48, the constitutionality of a minimum sentence cannot be determined by reference to any single sentencing principle. In considering the four-year minimum penalty for the offence of criminal negligence causing death with a firearm, Gonthier J. said, at para. 46:

I am convinced that this legislation survives constitutional scrutiny even if the sentence pursues sentencing principles of general deterrence, denunciation, and retributive justice more than the principles of rehabilitation and specific deterrence. In other words, the punishment is acceptable under s. 12 while having a strong and salutary effect of general deterrence.

102I understand Gonthier J. to mean that minimum sentences that stress denunciation and general deterrence over other sentencing goals are not thereby rendered unconstitutional. It is equally true, however, that sentences that are said to be justified by those same principles do not automatically pass constitutional review: Smith, at pp. 1073-74 S.C.R.

103A consideration of a mandatory minimum sentence in light of generally accepted theories of punishment and sentencing principles including proportionality inevitably drives one back to the gravity of the offence. Thus, in Morrisey, a strong emphasis on the principles of general deterrence, denunciation and retribution as reflected in a four-year minimum sentence was justified in light of the seriousness of the offence of criminal negligence causing death. A four-year mandatory minimum for an offence that did not involve the same level of harm or did not have a blameworthiness requirement, while no doubt reflecting the same principles of deterrence, denunciation and retribution, would likely not survive a s. 12 analysis.

(iv) The particularized inquiry as applied to the appellant

104The factors relevant to a determination of whether a minimum sentence is grossly disproportionate vis-à-vis the accused can be considered compendiously by comparing the mandatory minimum sentence to the sentence that would have been imposed under a sentencing scheme that was identical to [page430] the existing scheme save for the requirement of the mandatory minimum. The trial judge followed this approach.¹¹

105The trial judge reviewed the s. 95 sentencing jurisprudence as of 2008 before the three-year minimum sentence was introduced. As he pointed out, that jurisprudence developed under a sentencing scheme that carried a maximum penalty of ten years and a minimum penalty of one year when the Crown proceeded by indictment. The trial judge reasoned that as the one-year minimum had never been successfully challenged, he must accept it for the purpose of deciding what would have been an appropriate sentence but for the three-year minimum.

106I tend to agree with the trial judge. However, I do not think the mandatory one-year minimum has much effect on what would have been an appropriate sentence for the appellant but for the three-year minimum. Under the relevant principles of sentencing, and having regard to the case law, this appellant would have received a sentence well beyond one year regardless of whether the one-year minimum existed.

107As the many cases reviewed by the trial judge indicate, sentencing under s. 95 before 2008 stressed denunciation and deterrence. Mitigating factors personal to a particular accused necessarily took on a less significant role when fixing the appropriate penalty: e.g., see R. v. D. (Q.), 2005 30044 (ON CA), [2005] O.J. No. 3532, 199 C.C.C. (3d) 490 (C.A.), at paras. 77-78; and R. v. Nguyen, [2005] B.C.J. No. 407, 2005 BCCA 115, 209 B.C.A.C. 133, at para. 5.

108The trial judge, at para. 45, described the sentencing range for a s. 95 offence before the introduction of the three-year minimum as between two years less one day and three years. In his view, at para. 71, the appellant would have received a sentence of two and one-half years. He concluded that the three-year minimum was not grossly disproportionate as applied to the appellant.

109I am in substantial agreement with the trial judge's analysis of the sentencing case law. Had the trial judge been sentencing the appellant without the three-year minimum in place, the crucial question would have been whether a penitentiary term was necessary. I am satisfied that a trial judge, properly balancing all the factors, could have sentenced the appellant to a maximum reformatory term. I am equally satisfied that another trial judge, [page431] also properly balancing the various factors, could have imposed a penitentiary sentence of up to three years. As the range of appropriate sentences includes a three-year sentence, a mandatory minimum three-year sentence cannot be described as grossly disproportionate.

(v) The reasonable hypothetical

(a) The case law

110R. v. Big M Drug Mart, 1985 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17, at p. 314 S.C.R., established that, assuming standing,¹² a person may challenge the constitutionality of a law on the basis that it infringes a right protected by the Charter regardless of whether that law infringes the constitutional rights of the person advancing the challenge. As Dickson J. explained, where legislation is challenged as incompatible with the Charter under s. 52 of the Constitution Act, 1982, either in its purpose or effect, "[i]t is the nature of the law, not the status of the accused, that is in issue". The Supreme Court of Canada has repeatedly reaffirmed that a s. 52 challenge to a law does not depend on whether the challenged provision offends the rights of the claimant: see R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1; R. v. Wholesale Travel Group Inc. (1991), 1991 39 (SCC), 4 O.R. (3d) 799, [1991] 3 S.C.R. 154, [1991] S.C.J. No. 79; R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101; R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68; and Ferguson, at paras. 58-66.

111The nature of the inquiry required by a s. 52 challenge demands that the inquiry into the constitutionality of a mandatory minimum sentence embrace potential fact situations other than those presented in the individual case. The reasonable hypothetical provides the method by which that broader constitutional inquiry is made.

112The reasonable hypothetical methodology first appeared, albeit unnamed and unexplained, in the seminal case of Smith. In Smith, no one argued that the seven-year minimum penalty would constitute cruel and unusual punishment for the accused, who had a criminal record and had imported cocaine valued at over $100,000 into Canada. For the purposes of the constitutional [page432] challenge, the actual facts of the case quickly gave way to those of a hypothetical offender described, at p. 1053 S.C.R., as:

[A] young person who, while driving back into Canada from a winter break in the U.S.A., is caught with only one, indeed, let's postulate, his or her first "joint of grass".

113Justice Lamer, for the majority, at p. 1054 S.C.R., acknowledged that in his long experience in the criminal law, he was not aware of any person matching his description of his hypothetical offender ever being prosecuted for importing a narcotic into Canada. However, the possibility that this hypothetical offender could be charged "lurked" and were that person ever to be charged and convicted, a seven-year sentence would be a certainty because of the mandatory minimum.

114The essence of Lamer J.'s analysis appears at p. 1078 S.C.R.:

As indicated above, the offence of importing enacted by s. 5(1) of the Narcotic Control Act covers numerous substances of varying degrees of dangerousness and totally disregards the quantity of the drug imported. The purpose of a given importation, such as whether it is for personal consumption or for trafficking, and the existence or nonexistence of previous convictions for offences of a similar nature or gravity are disregarded as irrelevant. Thus, the law is such that it is inevitable that, in some cases, a verdict of guilt will lead to the imposition of a term of imprisonment which will be grossly disproportionate.

That is what offends s. 12, the certainty, not just the potential. . . . However, the effect of the minimum is to insert the certainty that, in some cases, as of conviction the violation [of s. 12] will occur. It is this aspect of certainty that makes the section itself a prima facie violation of s. 12, and the minimum must, subject to s. 1, be declared of no force or effect.

115Professor Hogg aptly describes the hypothetical used in Smith as "the most innocent possible offender principle": Constitutional Law of Canada, at p. 53-4. As described in Smith, the virtues of the hypothetical offender and the mitigating factors relevant to the commission of the offence seem limited only by the imaginations of counsel and judges.

116Unmodified, the hypothetical offender analysis described in Smith would have left very few, if any, mandatory minimum jail terms standing. However, that is not what happened. In two subsequent cases, Goltz and Morrisey, the Supreme Court narrowed the scope of the reasonable hypothetical as applied to s. 12 challenges to mandatory minimum sentences.¹³ Both cases require careful examination. [page433]

117In Goltz, the accused was charged under s. 88(1) of British Columbia's Motor Vehicle Act, R.S.B.C. 1979, c. 288 ("MVA"). That section made it an offence to drive while knowingly prohibited from driving under any of the provisions enumerated in s. 88 of the MVA. The offence was punishable by a minimum term of imprisonment of seven days and a $300 fine.

118The accused in Goltz was prohibited from driving under s. 86(1)(a)(ii) of the MVA, one of the provisions that is listed in s. 88(1). Section 88(1) (a)(ii) authorized the registrar to prohibit a person from driving based on that person's bad driving record. The MVA contained various procedural safeguards, including a mandatory pre-prohibition interview with the registrar designed to ensure that the registrar made a prohibition order only in those cases that fully warranted the order.

119The accused in Goltz did not contend that the seven-day mandatory minimum was unconstitutional as applied to him. He argued, however, that there would be cases where, having regard to the nature of the offences that could precipitate a s. 88(1) prohibition order and the circumstances in which the driving under prohibition might occur, a seven-day minimum sentence would be grossly disproportionate. The accused did not limit his challenge to prohibitions issued under s. 86(1)(a)(ii), but submitted that the court was required to consider all prohibitions that could possibly support a conviction under s. 88(1). The accused succeeded at trial and the mandatory minimum was declared unconstitutional: see 1988 7054 (BC SC), [1988] B.C.J. No. 1873, 44 C.C.C. (3d) 166 (Co. Ct.). The Crown appeal to the British Columbia Court of Appeal was dismissed: see 1990 833 (BC CA), [1990] B.C.J. No. 11, 52 C.C.C. (3d) 527 (C.A.).

120In reversing the decision of the British Columbia Court of Appeal and holding the section constitutional, Gonthier J., for the majority, at pp. 503-504 S.C.R., began by acknowledging that the constitutionality of a minimum penalty had to be tested not only on the facts of the particular case, but also by reference to a broader factual background. He observed that the need to [page434] examine the constitutionality of a mandatory minimum from a broader prospective than that afforded by the specific facts of the case presented a problem which "the jurisprudence to date exhibits significant confusion about". He proceeded to identify and describe the reasonable hypothetical methodology. His approach narrowed the approach taken in Smith in three important ways.

121First, the majority in Goltz took a more restricted view of the potential fact situations encompassed by reasonable hypotheticals. Although Gonthier J. did not expressly take issue with the hypothetical offender used in Smith to test the constitutionality of the mandatory minimum, his description of the reasonable hypothetical was quite different from that used in Smith. Justice Gonthier, at p. 504 S.C.R., referred to the hypothetical offender in Smith as "that imaginary small offender". He described his reasonable hypothetical in these terms, at pp. 515-16 S.C.R.:

A reasonable hypothetical example is one which is not far-fetched or only marginally imaginable as a live possibility. While the Court is unavoidably required to consider factual patterns other than that presented by the respondent's case, this is not a licence to invalidate statutes on the basis of remote or extreme examples. Laws typically aim to govern a particular field generally, so that they apply to a range of persons and circumstances. It is true that this Court has been vigilant, wherever possible, to ensure that a proper factual foundation exists before measuring legislation against the Charter. Yet it has been noted above that s. 12 jurisprudence does not contemplate a standard of review in which that kind of factual foundation is available in every instance. The applicable standard must focus on imaginable circumstances which could commonly arise in day-to-day life.

(Emphasis added; citation omitted)

122The reasonable hypothetical in Goltz describes those cases that fall within the broad mainstream of fact situations contemplated by the terms of the offence in issue. Fact situations that represent true outliers, the "remote or extreme examples", may, if and when they arise, give rise to an argument that the mandatory minimum is unconstitutional as applied to the specific accused and, therefore, of no force or effect. Those extreme examples cannot, however, be used as reasonable hypotheticals to strike down mandatory minimums in cases where the minimum as applied to the specific accused does not constitute cruel and unusual punishment. After Goltz, the reasonable hypothetical designed to capture every "lurking" possibility in Smith had been narrowed to capture those possibilities that "could commonly arise". The exact contours of the reasonable hypothetical remained unclear.

123The second of the three restrictions on the selection of an appropriate reasonable hypothetical found in Goltz flows from [page435] the majority's acceptance of the Crown's position that the court should limit its consideration of the constitutionality of the minimum penalty to cases where the driving prohibition was based on the same section of the MVA as was the prohibition in Goltz. The majority left for another day the constitutionality of prohibitions based on other sections identified in s. 88: see Goltz, at p. 496 S.C.R.

124By limiting its analysis to minimum penalties imposed on those who drove while prohibited from driving by a registrar's order, the majority eliminated a wide range of potential hypothetical offenders who were prohibited from driving under other sections and who had not had the benefit of the various procedural safeguards applicable to prohibition orders made by the registrar. By allowing the Crown to narrow the scope of the constitutional challenge, the court eliminated from the reasonable hypothetical analysis a variety of fact situations in which the seven-day minimum penalty would arguably have been much more amenable to constitutional challenge.¹⁴

125The significant impact on the reasonable hypothetical methodology produced by limiting the offence to the particularized version as it arose in the actual case is evident in R. v. Brown, 1994 29 (SCC), [1994] 3 S.C.R. 749, [1994] S.C.J. No. 95. In Brown, the accused was convicted of three robberies and three related counts of using a firearm while committing an indictable offence, contrary to s. 85 of the Criminal Code. He challenged the constitutionality of the statutory provisions providing for mandatory minimum consecutive sentences upon conviction on the charges of using a firearm in the commission of an indictable offence.

126The challenge succeeded in the Manitoba Court of Appeal: 1993 14666 (MB CA), [1993] M.J. No. 46, 80 C.C.C. (3d) 275 (C.A.). Justice Helper, for the court, considered reasonable hypotheticals that involved the use of a firearm in the commission of a property-related indictable offence (e.g., mischief). She said, at p. 285 C.C.C.:

The certainty remains that an offender who has a previous firearms conviction and commits a series of property offences using a firearm would be subject to an inordinately long period of incarceration upon conviction.

127The Supreme Court of Canada reversed in a unanimous and very brief judgment holding, at p. 751 S.C.R.: [page436]

Here, the Attorney General of Manitoba limited its defence of s. 85 to the case which concerns armed robbery as the underlying offence. As such, the hypothetical proposed by the respondent relating to mischief is not a reasonable hypothetical envisioned by Goltz. We agree with these submissions and would therefore find no violation of s. 12 of the Charter.

128After Goltz and Brown, it seems clear that if the offence to which the mandatory minimum attaches is predicated on the commission of some other offence (e.g., using a firearm in the commission of indictable offence), or on the breach of some statutory provision or order (e.g., driving while prohibited), the Crown can limit the constitutional challenge and, hence, the reasonable hypothetical analysis to the same predicate offence or the breach of the same statutory provision or order as occurred on the facts of the case giving rise to the constitutional challenge.¹⁵ I will examine the application of this line of authority to s. 95 when I examine the reasonable hypotheticals available under s. 95.

129The third and final restriction on reasonable hypotheticals advanced in Goltz arises from the connection drawn between the facts of the case before the court and the ambit of the reasonable hypothetical. On the majority's analysis, the facts of the case before the court afforded an excellent indicator of the scope of the appropriate reasonable hypotheticals. Two passages of the majority judgment, at pp. 516 and 519 S.C.R., make this point:

The particular facts of the instant appeal provide an important benchmark for what is a reasonable example in the context of s. 86(1)(a)(ii) of the Act. This is because they represent one real application of the challenged statutory provision. A finding of absence of Charter infringement on the sole basis of these particular facts therefore lends support to a conclusion that the challenged legislation is valid under s. 12. In this appeal, this indication is particularly significant because the administrative guidelines and internal review system which screen out genuinely bad drivers ensure that responsible drivers will not be prohibited, and because the facts of this appeal are highly representative of commonly imaginable instances of the offence.

Even if the respondent had submitted a relevant example, it is doubtful that it would have overcome the strong indication of validity arising from the first, particularized step of s. 12 analysis.

(Emphasis added) [page437]

130It is not clear to me why the facts of a given case are necessarily representative of available reasonable hypotheticals. On this approach, the two stages of the gross disproportionality inquiry begin to merge into one. However, after Goltz, the actual facts of the case have become an important "benchmark" in shaping reasonable hypotheticals.

131The reasonable hypothetical as reshaped in Goltz was further considered in Morrisey, the Supreme Court of Canada's most recent decision describing the use of reasonable hypotheticals to challenge the constitutionality of mandatory minimum penalties under s. 12 of the Charter.¹⁶ The accused in Morrisey, while drunk and carrying a loaded rifle, attempted to rouse a friend who was sleeping. The accused slipped, the gun went off and his friend was killed. At first, the accused attempted to hide the body, but later confessed to the police and pleaded guilty at trial to criminal negligence causing death. Because the homicide involved a firearm, it attracted a mandatory four-year minimum penalty.

132The Supreme Court unanimously upheld the constitutionality of the mandatory minimum.¹⁷ Justice Gonthier, once again speaking for the majority, referred back to Goltz in describing the reasonable hypothetical. He said, at para. 30:

The reasonableness of the hypothetical cannot be overstated, but this means that it must be reasonable in view of the crime in question.

133Justice Gonthier acknowledged that the facts of actual cases involving the offence provided a logical place to look for reasonable hypotheticals. However, at para. 33, he cautioned against treating each and every reported case as a free-standing reasonable hypothetical:

Again, it is to be remembered that the courts are to consider only those hypotheticals that could reasonably arise. Homicide is far from a common occurrence in Canada. Criminal negligence causing death with a firearm is [page438] even less common. It is thus appropriate to develop hypotheticals from the case law by distilling their common elements. Goltz requires that hypotheticals be "common" rather than "extreme" or "far-fetched". It is sufficient when dealing with a rare and uncommon crime that the hypotheticals be common examples of the crime rather than examples of common occurrences in day-to-day life. However, in constructing hypotheticals, courts can be guided by real life cases, but to the extent that these cases may not be exhaustively reported, they are not bound to limit the fashioning of hypotheticals to the cases that are made available to them. In fashioning hypotheticals for the purpose of a s. 12 analysis, reported cases can be used with caution as a starting point, and additional circumstances can be added to the scenario to construct an appropriate model against which to test the severity of the punishment.

(Emphasis added; underlining in original)

134Still later in his reasons, at para. 50, Gonthier J. explained why prior cases did not necessarily amount to reasonable hypotheticals:

The hypotheticals used by the trial judge were actual reported cases. As I explained above, these reported cases have inherent problems, based as they are on evidence adduced by way of agreed facts. Further, it is questionable whether all of the cases considered by the trial judge are common examples of cases that arise under s. 220(a). Finally, each of these reported cases turns on its own idiosyncrasies and involves considerations at a level of specificity never contemplated by Smith . . . Under all of these circumstances, I am reluctant to enter into a case-by-case analysis of the specific circumstances of each of the individuals who pleaded guilty to this offence. Instead, the proper approach is to develop imaginable circumstances which could commonly arise with a degree of generality appropriate to the particular offence.

(Emphasis added; citation omitted)

135Justice Gonthier, at paras. 51-52, identified only two reasonable hypotheticals involving the use of firearms to commit the offence of criminal negligence causing death. The first involved a person who took possession of the gun for the purpose of "playing around with a gun" and who, in the course doing so, shot and killed another person. The second involved a person engaged in a lawful activity (hunting) who used a firearm in a criminally negligent manner and caused another person's death. Both hypotheticals described conduct at a general level and neither hypothetical referred to any factors particular to the individual offender, such as long-standing abuse, extreme youth, ill health or intellectual impairment that might mitigate the penalty.

136The reasonable hypothetical used in Morrisey describes a much more generic offender than does the reasonable hypothetical in Smith. The reasonable hypothetical in Morrisey captures any offender who engages in the "common elements" of the offence that attract the mandatory minimum. All one knows [page439] about the offenders in the reasonable hypotheticals used in Morrisey is that both caused the death of another person by using a firearm in a manner that showed a wanton or reckless disregard for the safety of others. Individual characteristics of an offender that might mitigate or aggravate the penalty are virtually eliminated in the two reasonable hypotheticals used in Morrisey.

137The focus in the hypothetical on the nature of the act committed and the essential components of the offence as opposed to the individual characteristics of the hypothetical offender is, in my view, an important refinement on the reasonable hypothetical as used in Smith. It seems to me that if the hypothetical offender is to be endowed with individual characteristics that can mitigate the penalty, then, regardless of the offence, one could describe an offender for whom a mandatory minimum punishment would be grossly disproportionate.

138The reasonable hypothetical described in Morrisey seems a long way from the "most innocent possible offender" hypothetical used in Smith. In some ways it is. However, a careful reading of Morrisey suggests that, depending on the nature of the offence, there may not be a significant difference between the reasonable hypotheticals described in Morrisey and Smith.

139In Morrisey, at para. 30, the majority expressly approved of the hypothetical used by Lamer J. in Smith:

In Smith, the hypothetical used to invalidate the impugned punishment was a very realistic one. There, the legislation attached criminal liability to importers of illegal narcotics, irrespective of the quantity imported. The natural and probable consequence of the legislation would be to catch individuals who could only be described as "small offenders" . . . such as the individual importing a single joint.

(Emphasis added; citation omitted)

140Two things about the approving reference to Smith in Morrisey are noteworthy. First, in describing the hypothetical from Smith, Gonthier J., in Morrisey, does not refer to any of the personal characteristics of the hypothetical offender in Smith, such as age and motive, but refers only to factors relevant to the nature of the offence, namely, the nature and quantity of the drug imported.

141Second, in referring to the hypothetical used in Smith as "very realistic", Gonthier J. was not suggesting that it was realistic in the sense that it reflected the kind of case that routinely arose in the criminal courts. Rather, it was realistic in the sense that it reflected the scope of the prohibition as described in the legislation that defined the crime to which the seven-year minimum applied. [page440]

142In 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.

(b) Section 95 reasonable hypotheticals

143I begin my description of s. 95 reasonable hypotheticals by considering whether, in keeping with Goltz and Brown, the s. 95 reasonable hypothetical should be limited to cases which share the central features of the appellant's case, namely, possession of a loaded firearm and the absence of any kind of authorization or licence to possess that firearm anywhere at any time. Neither the Crown nor the Attorney General for Canada suggested at trial or in this court that the s. 95 reasonable hypothetical could be limited to cases that shared these aggravating features. Both defended the constitutionality of s. 95 in all its potential applications, although both argued that examples taken from the regulatory end of the spectrum were not sufficiently common to constitute reasonable hypotheticals.

144I was initially attracted to the idea of considering the constitutionality of the mandatory minimum as applied to cases where the gun was actually loaded and the offender had no authorization to have the gun under any circumstances in any place. Cases with those features fall more toward the true crime end of the spectrum. The mandatory minimum would more easily meet constitutional norms if those features existed.

145I have, however, concluded that the Crown and the Attorney General for Canada's approach of considering all potential applications of s. 95 is correct. Section 95 is a different kind of offence than the offences considered in Goltz and Brown. In those cases, the offence that carried the minimum penalty depended on the commission of a predicate offence or the breach of some other statutory provision or order. The seriousness of the offence attracting the minimum penalty depended to some degree on the nature of the predicate offence, or the nature of the conduct giving rise to the prior order.

146Section 95 does not depend on the commission of a predicate offence or the breach of any statutory or other order. Section 95, like the importing offence in Smith, prohibits a broad range of conduct. Upon reflection, I am satisfied that it would be no more appropriate to consider the constitutionality of s. 95 by [page441] reference only to the more egregious form of conduct captured by s. 95 than it would have been in Smith to consider the constitutionality of the mandatory minimum by reference only to the crime of importing the more harmful narcotics such as cocaine into Canada.

147The trial judge developed several reasonable hypotheticals, at para. 96. Distilled to their essentials, they involved

-- offenders of previous good character;

-- brief possession of the firearm;

-- no criminal purpose associated with the possession; and

the appellant's possession was in the nature of a failure to comply with the regulatory licensing scheme.

148Mr. Shandler, for the Crown, put forward a more restrictive reasonable hypothetical. In his helpful submissions, he argued that a reasonable hypothetical must involve a situation "of imminent and lethal danger inherent in the presence of a loaded handgun". According to Mr. Shandler, reasonable hypotheticals must be limited to cases in which the accused knowingly possesses a loaded restricted or prohibited firearm that has never been licensed or legitimately owned.

149This submission does not reflect the broad scope of the offence as defined in s. 95. There is no suggestion in s. 95 that the firearms are limited to those that have "never been licensed or legitimately owned". Nor does the case law reflect any such limitation: e.g., R. v. Laponsee, [2013] O.J. No. 2834, 2013 ONCJ 295; and MacDonald. Furthermore, the offence is not limited to loaded restricted or prohibited firearms, but instead extends to such firearms even when unloaded if ammunition is readily accessible. I do not think that liability based on an unloaded firearm with ammunition stored nearby can be excluded as a reasonable hypothetical given the language of s. 95 any more than possession of a small amount of marijuana could be excluded from the importation offence considered in Smith.

150Having regard to Goltz and Morrisey and, in particular, the emphasis in Morrisey on maintaining a level of generality commensurate with the description of the offence, I would describe the s. 95 reasonable hypothetical to be used in the s. 12 analysis as having three characteristics:

the accused is knowingly in possession of an unloaded restricted or prohibited firearm with useable ammunition stored nearby and readily accessible; [page442]

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.

151The Crown correctly points out that there are no reported cases that share the characteristics of the reasonable hypothetical I have described. Counsel also observes that my reasonable hypothetical is far removed from the facts of this appeal or any of the other appeals that were heard with this appeal. Counsel submits that reasonable hypotheticals that have no resemblance to any reported cases or the facts of the case before the court are illegitimate reasonable hypotheticals after Goltz and Morrisey.

152There is considerable force to counsel's submissions. However, the scheme of s. 95 compels me to reject that argument. Section 95 creates a hybrid offence. The Crown may proceed by indictment or summarily. If the Crown proceeds summarily, there is no minimum penalty and the accused may receive a non-custodial sentence or even an absolute discharge: e.g., see Snobelen. The essential elements of the offence are, of course, the same whether the Crown proceeds by indictment or summarily. By making s. 95 a hybrid offence, Parliament has acknowledged that the appropriate penal response for the criminal conduct prohibited by s. 95 runs the full gamut of sentencing options from an absolute discharge to ten years in the penitentiary. That sentencing range tells me that Parliament must have anticipated prosecutions under s. 95 at what I have referred to as the regulatory end of the spectrum. The reasonable hypothetical I have constructed is consistent with that view of the offence.

153My reference to the hybrid nature of a s. 95 offence as germane to the construction of a reasonable hypothetical leads logically to a consideration of the trial judge's reliance on the Crown election to prevent any breach of s. 12. The trial judge concluded that there were reasonable hypotheticals in which a three-year penitentiary sentence upon conviction on a charge under s. 95 would constitute cruel and unusual punishment. He was satisfied, however, at para. 115, that in those cases, the "reasonable exercise of Crown discretion would result in summary proceedings", thereby avoiding the three-year minimum and any constitutional infringement. [page443]

154In this court, counsel for the appellant argues that the Crown election at the outset of the proceedings cannot avoid a potential imposition of the mandatory minimum in reasonable hypotheticals where that minimum would violate s. 12. He relies on the analysis in R. v. Smickle (2012), 110 O.R. (3d) 25, [2012] O.J. No. 612, 2012 ONSC 602, 280 C.C.C. (3d) 365 (S.C.J.), at paras. 85-87. Counsel further submits that the appellant's constitutional right not to be subject to cruel and unusual punishment cannot depend on the Crown's exercise of its prosecutorial discretion, be it in respect of the charge to be laid or the mode of proceedings: see Smith, at pp. 1078-1079 S.C.R.

155Crown counsel accepts that the trial judge went too far in viewing the Crown's power to elect to proceed summarily as "the sine qua non of constitutionality under the s. 12 analysis". Crown counsel instead submits that the Crown's ability to proceed summarily provides "an additional safeguard" in those borderline reasonable hypothetical cases.

156With respect, I do not agree with the trial judge's analysis of the effect of the Crown election on the constitutionality of the mandatory minimum. Further, while the Crown's ability to elect may provide a safeguard in those cases where the facts are known from the outset and agreed upon by the parties, the Crown election provides no safeguard in the vast majority of cases where the facts are in dispute or unknown at the time of the election.

157The Crown elects to proceed by indictment or by way of summary proceedings at an early stage in the prosecution. The election is based on the information available to the Crown at that time. If the accused pleads not guilty and is convicted, he or she will be sentenced based on findings of fact made by the trial judge on sentencing. If the Crown chose to proceed by indictment, the constitutionality of the three-year minimum will be tested in the context of the facts as found for the purpose of sentencing and not the facts as understood by the Crown when the election was made.

158If an accused pleads not guilty and is convicted, it is not unusual that the facts for the purpose of sentencing will be quite different from the Crown's understanding of the case when the Crown made its election. There will inevitably be cases in which the Crown elected to proceed by indictment, but would have elected to proceed summarily had the election been based on the facts as found at the time of sentencing.

159A slight variation on the facts in Snobelen, a case much discussed as a potential reasonable hypothetical during oral argument, demonstrates that the Crown election cannot avoid [page444] an infringement of s. 12. In Snobelen, the accused owned a ranch in Oklahoma. He sold the ranch, and the personal property on the ranch was shipped to him in Ontario. Unbeknownst to the accused, that property shipped to him included a handgun that was a restricted firearm and ammunition for the handgun. The accused did not have a licence and the gun was not registered in Canada, although its possession in Oklahoma was apparently lawful. The accused did not become aware that the gun and ammunition were in his home until sometime after they were delivered with the rest of the property from the Oklahoma ranch. He intended to dispose of the gun and believed that his wife had done so. He was, however, aware that the gun was in his home for a period of time and that he did not have a licence to possess the gun. The accused and his wife were having marital problems, and she reported the existence of the gun to the police. The police executed a search warrant and found the gun in the home. The accused readily admitted he should have disposed of the weapon. There was no suggestion that he had used the gun in any way or that there was ever ammunition in the gun.

160On the facts outlined above, the accused was charged with possession of a restricted firearm and readily accessible ammunition. The Crown chose to proceed summarily, the accused pleaded guilty and the trial judge imposed an absolute discharge.

161If one assumes, however, that in addition to the facts outlined above, the Crown had a credible allegation from the spouse that the accused had used the presence of the handgun in the home to intimidate her and attempt to dissuade her from taking any legal steps she was entitled to take against him, the Crown could, acting reasonably, have decided to proceed by indictment.¹⁸ Assuming that the accused pleaded not guilty and the rest of the evidence was identical to the actual facts in Snobelen, and that the trial judge did not believe the spouse's evidence about the intimidation, the trial judge would have convicted the accused under s. 95. However, because the Crown, relying on an aggravating factor that was ultimately rejected by the trial judge, had elected to proceed by indictment, the trial judge would have been required to impose a three-year penitentiary term based on facts that were identical to those that would have led to an absolute discharge had the Crown proceeded [page445] summarily. In those circumstances, the three-year penitentiary term would surely be a grossly disproportionate sentence.¹⁹

162My holding that the Crown ability to elect to proceed summarily cannot avoid an infringement of s. 12 does not imply that the Crown cannot be relied on to exercise its discretion reasonably. Simply put, except perhaps when the accused pleads guilty, the Crown cannot know the facts on which the accused will be sentenced when the Crown makes its election. Consequently, the election cannot be expected to be responsive to those facts.

163The trial judge's analysis, at paras. 105-15, does not come to grips with the timing of the Crown election and the factual basis upon which that election is made in reaching the conclusion that the Crown power to elect to proceed summarily provided a "complete answer" to the appellant's s. 12 claim. I prefer the analysis of the trial judge in Smickle, who, albeit in the context of s. 1 of the Charter, observes, at para. 110:

The Crown discretion is exercised at an early stage when all of the facts, particularly those favourable to the defence, are often not known. Often the full facts will not be known until the trial judge delivers his or her reasons or the jury delivers a verdict.

164I come now to test my reasonable hypothetical using the factors described above, at para. 78. I will focus on the gravity of the offence as reflected in my reasonable hypothetical as, in my view, the gravity of the offence is the crucial, if not determinative, consideration in this case.

165The reasonable hypothetical I use involves no harm to anyone or anything and very little, if any, risk of harm to anyone or anything. The fact that the firearm in my hypothetical is unloaded, clearly a scenario contemplated by s. 95, significantly, in my view, decreases the risk of harm posed by the conduct described in my reasonable hypothetical. It is certainly arguable that a loaded gun always poses an immediate danger. The same [page446] cannot be said of an unloaded gun in the possession of a licensed gun owner who has ammunition stored nearby.

166The offender in my reasonable hypothetical is morally culpable in that he acts with the requisite knowledge of the elements of the offence. The offender knows that he or she is in possession of a restricted firearm and that the possession is not authorized at the place where he or she is in possession. Given the strict terms on which licences to possess restricted and prohibited firearms are given, a knowing breach of those terms is a morally blameworthy act.

167The level of moral blameworthiness, however, as with the blameworthiness that knowledge of the possession of a narcotic imputes, depends on a number of variables, all of which fall within the broad scope of the offence as defined in s. 95. Knowledge that one has an unloaded restricted firearm safely stored in one's cottage with useable ammunition readily accessible in the next room, coupled with the knowledge that under the terms of one's licence, the firearm should be kept in one's dwelling, attracts a very different level of moral blameworthiness than does the knowledge of the person standing on the street corner with a loaded gun in his back pocket for which he knows he has no kind of authorization and which he intends to use as he sees fit. Section 95 is written so broadly as to capture offenders with both levels of moral blameworthiness. My reasonable hypothetical focuses on the less blameworthy category of potential offender.

168I would also rank the moral culpability of the offender in my reasonable hypothetical below the moral culpability of persons who engage in activities with firearms that demonstrate a wanton or reckless disregard for the lives or safety of others. Offenders in the reasonable hypotheticals described in Morrisey are, in my view, more morally culpable than the reasonable hypothetical offender I describe.

169In 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 [page447] penitentiary sentence is grossly disproportionate to the severity of the offence described in my reasonable hypothetical.

170A comparison of the mandatory minimum required in s. 95 with the sentences available for related crimes, another factor identified as relevant in the gross disproportionality analysis, confirms my view that the three-year mandatory minimum is grossly disproportionate. I will consider ss. 92 and 93. Both provisions apply to all firearms, including prohibited and restricted firearms, and both provisions describe offences that are very similar to the offence set out in s. 95.

171Section 92 creates an offence that applies to anyone who is in possession of a prohibited or restricted firearm "knowing that the person is not a holder" of a licence or registration certificate. As I read the offence described in s. 92, it applies to offenders who, to their knowledge, have no licence or registration certificate referable to the firearm. Section 92 does not require that the firearm be loaded or that useable ammunition be readily available.

172Section 92 carries no minimum penalty for a first offence. There are minimum penalties for second (one year) and subsequent (two years less one day) offences.

173The offence described in s. 93 applies in circumstances that are very similar to the facts of my reasonable hypothetical. Section 93 applies to a person who has a licence for a restricted or prohibited firearm, but has possession of that weapon at a place not authorized under the licence. Section 93, unlike s. 95, does not require that the firearm be loaded or that ammunition be readily available.²⁰

174Section 93, like s. 95, is a hybrid offence. If the Crown proceeds by indictment, the maximum penalty is five years. There is no minimum penalty under s. 93 regardless of whether the Crown proceeds by indictment or summarily.

175The relatively minor distinctions between the conduct addressed in ss. 92 and 93, and the conduct in s. 95 does not explain the vast differences in the range of penalties available for the offences and, in particular, the three-year starting point for a s. 95 offence. I stress, again, that s. 95 does not require that the firearm be loaded or that the person in possession of the firearm have any intention of loading the firearm. The presence of useable ammunition stored in a nearby drawer strikes me as [page448] a totally inadequate basis upon which to move from an offence under ss. 92 or 93 carrying no minimum penalty to one demanding a three-year penitentiary term.

176I do not propose to address the other factors relevant to the gross disproportionality analysis. In my view, the cavernous disconnect between the severity of the offence as described in my reasonable hypothetical and a three-year penitentiary sentence is determinative of the s. 12 analysis. The severity of the s. 95 minimum when compared to the range of sentences available for similar offences serves to confirm my conclusion. Even taking into account factors such as parole that would mitigate the effect of the three-year sentence, I remain convinced that it is grossly disproportionate in the reasonable hypothetical I have drawn. The three-year mandatory minimum upon conviction for a s. 95(1) offence constitutes cruel and unusual punishment.

(vi) The application of section 1 to the section 12 breach

177All rights and freedoms guaranteed by the Charter are subject to the limitation in s. 1:

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.

178The format of the s. 1 analysis is well known: e.g., see Smickle (reasons of Molloy J.), at paras. 97-123. I do not propose to go through the steps of that analysis. Given the very high bar set for a finding that a sentence constitutes cruel and unusual punishment, I find it very difficult to imagine how a sentence that clears that high bar could ever qualify as a reasonable limit demonstrably justified in a free and democratic society.

179In essence, s. 1 permits what would otherwise be infringements of individual constitutional rights where the societal benefits flowing from the state action that infringes individual rights can "demonstrably" justify that infringement. In my view, the basic quid pro quo underlying s. 1 does not exist where the state imposes punishment that is "so excessive as to outrage standards of decency" and so disproportionate as to be "abhorrent or intolerable" to Canadians: Ferguson, at para. 14. What possible societal benefit could render such punishment "demonstrably justified in a free and democratic society?"

180No system of criminal justice that would resort to punishments that "outrage standards of decency" in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry. Similarly, no system of criminal justice that would make exposure to [page449] a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system.

181If an argument can be made that could justify sheltering a sentence that amounted to cruel and unusual punishment under s. 1, I have not heard it. The mandatory minimum penalty of three years imposed under s. 95(2)(a) cannot be saved by s. 1.

IV

The Section 15 Challenge

182I agree with the analysis and conclusion of the trial judge, at paras. 74-82. There is no breach of s. 15.

V

The Section 7 Challenge

183Unlike the ss. 12 and 15 challenges, the s. 7 challenge does not take issue directly with the mandatory minimum penalty. Rather, it challenges the gap in the sentencing provisions in s. 95(2). As outlined above, if the Crown proceeds by indictment, an accused is liable to a three-year minimum penalty (s. 95(2)(a)). If the Crown proceeds summarily, the accused is liable to a one-year maximum penalty (s. 95(2)(b)). Consequently, regardless of how the Crown proceeds, an accused cannot receive a jail sentence of between one year plus one day and three years less one day. The trial judge focused on this gap in his s. 7 analysis.

184Section 7 provides:

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.

A. The reasons of the trial judge

185At para. 123, the trial judge first considered and rejected the submission that a scheme which creates a mandatory minimum penalty dependent upon the Crown election violated s. 7 of the Charter. He then went on to hold that the two-year sentencing gap created by the provisions in s. 95(2) did contravene s. 7. He opined that the two-year gap rendered s. 95(2) an arbitrary limitation on the liberty of persons charged under s. 95. The trial judge said, at para. 131:

I am satisfied that the two year "gap" is inconsistent with the true legislative purposes that underlie s. 95. It severely restricts the flexibility of hybrid [page450] procedures, it will inevitably lead to unfit sentences in the low and mid- range of s. 95 cases, and it puts the three-year mandatory minimum sentence, when proceeding by indictment, at constitutional risk. These are all irrational purposes and effects. There is simply no clear connection between the legislative goals of the 2008 reforms and the two year "gap" in the sentencing scheme. It appears to have been a mere legislative oversight, which Parliament would quickly have corrected by raising the summary conviction maximum sentence to three years, had the oversight been pointed out.

186The trial judge identified s. 95(2)(b), the provision which limited the maximum penalty to one year where the Crown proceeded summarily, as the constitutionally offensive part of s. 95(2). In his view, however, the appellant had no standing to challenge s. 95(2)(b) as the Crown would not have proceeded summarily against the appellant regardless of the maximum penalty available on a summary conviction proceeding. As the appellant had no standing to raise the challenge, the trial judge dismissed the s. 7 claim.

187I do not understand the Crown to support the trial judge's standing analysis. As I am satisfied that the two-year gap referred to by the trial judge does not infringe s. 7, I propose to address the merits of the s. 7 argument and to assume that the appellant has the necessary standing to raise the argument.

B. The arguments on appeal

188There are two s. 7 arguments raised on appeal. One relies on the trial judge's analysis and focuses on the two-year gap in the sentencing options available, depending on whether the Crown proceeds summarily or by indictment. The other s. 7 argument contends that the s. 95 scheme is unconstitutional because it gives the Crown the power to decide that the s. 95 charge will proceed by indictment, thereby bringing into play a mandatory minimum penalty. This argument was most forcefully put forward by the Advocates' Society, one of the intervenors. I will address this argument first.

(i) Is a mandatory minimum triggered by the Crown's decision to proceed by indictment contrary to s. 7?

189Counsel for the Advocates' Society submits that legislation that combines the creation of a hybrid offence with a minimum penalty applicable if the Crown proceeds by indictment is contrary to s. 7 and must be "struck down" under s. 52. Counsel submits that the scheme created by s. 95 offends s. 7 of the Charter, first, because it does not require the Crown to explain or justify its election to proceed by indictment in a public and transparent manner and, second, because it allows the [page451] Crown, by electing to proceed by indictment, to "substantially determine", "dictate" and "choose" the sentence to be imposed.

190I would reject both submissions. The exercise of Crown discretion throughout the criminal process, including the choice of the mode of trial where Parliament provides that an offence is punishable by indictment or summarily, is a long-standing and essential component of the fair and efficient operation of the criminal justice system: see R. v. Beare; R. v. Higgins, 1988 126 (SCC), [1988] 2 S.C.R. 387, [1987] S.C.J. No. 92, at p. 411 S.C.R.; and R. v. Smythe, 1971 831 (SCC), [1971] S.C.R. 680, [1971] S.C.J. No. 62, at pp. 685-86 S.C.R.

191In exercising prosecutorial discretion in matters like the decision to proceed to trial, or the choice of mode of trial, the Crown must act independently, including independently of judicial influence and oversight. As explained in Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, [2002] S.C.J. No. 45, 2002 SCC 65, at para. 32:

The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict.

(Emphasis added)

192The submission that the Crown is constitutionally required to explain or justify its election as to the mode of trial to a judge implies some form of judicial oversight over the exercise of that discretion. Any such oversight could only blur the important and constitutionally fundamental distinction between the role of the prosecutor and the role of the judiciary and potentially undermine the independence of both: R. v. T. (V.), 1992 88 (SCC), [1992] 1 S.C.R. 749, [1992] S.C.J. No. 29, at p. 761 S.C.R.

193The argument that the Crown determines the sentence to be imposed when it elects to proceed by indictment in the face of a mandatory minimum misses the distinction between Crown decisions that affect the sentence ultimately imposed and Parliament's determination as to the range of sentences that will be available to a trial judge. Several decisions made by the Crown will influence the range of sentence available to the trial judge and the ultimate sentence imposed by the trial judge. For example, a prosecutor's determination as to which charge to prosecute, the mode of procedure to be followed and the aggravating factors to be proved on sentencing, may all have a significant influence on the ultimate sentence imposed by the trial judge. In exercising his or her prosecutorial discretion, however, the [page452] Crown does not "dictate" or "choose" the sentence to be imposed. Parliament determines the range of sentences available to the trial judge.

194This court addressed and rejected this very argument in Gill, at para. 49. In Gill, the appellant challenged a mandatory minimum sentence triggered by the Crown's decision on sentencing to prove a prior conviction for the same offence. It was argued that in exercising this discretion, the Crown effectively pre-empted the trial judge's sentencing discretion. This court said [at para. 49]:

The Crown is no more limiting the sentencing discretion of a trial judge when it chooses to prove the notice under s. 727 than it is when it chooses to prove the use of a firearm in the commission of certain offences; chooses to charge an offence that attracts a minimum penalty; or chooses to proceed by indictment when that procedure attracts a greater minimum penalty. In each instance, it can be said that the Crown's action limits the sentencing judge's discretion in the sense that, but for the Crown's actions, a minimum penalty would not apply. The exercise of the Crown's discretion, however, has the effect of limiting the judge's sentencing discretion because of the statutory provisions enacted by Parliament. It is those provisions that limit the trial judge's sentencing discretion. As the Supreme Court of Canada made clear in Ferguson and again in Nasogaluak, unless minimum penalties are unconstitutional, judges must accept them and impose sentences that fall within the range fixed by Parliament.

(Emphasis added; citations omitted)

195In holding that s. 95 does not contravene s. 7 because it combines a hybrid procedure with a mandatory minimum penalty if the Crown proceeds by indictment, I do not suggest that the Crown's election as to the mode of proceeding is beyond Charter review. The Crown's election to proceed by indictment in a given case will impact on the accused's liberty interest and can be challenged as a breach of s. 7. The accused may seek a case-specific remedy under [s. 24(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b