Court File and Parties
Court File No.: 13-1515
Ontario Court of Justice East Region
Her Majesty the Queen v. Arnold Shobway
Before: The Honourable Mr. Justice Grant Radley-Walters
Guilty Plea heard: June 23rd, 2014 Argument in the Charter Application heard: April 27th, 2015 Released: August 18th, 2015
Charge: Section 99(1)(a) of the Criminal Code
Appearances
Sam Humphrey – Counsel for the Crown
Mark Huckabone – Counsel for the Applicant, Arnold Shobway
Reasons for Judgment on the Charter Application
Introduction
[1] The accused pleaded guilty before me on June 23rd, 2014 with respect to a charge of transferring two restricted firearms knowing that he was not authorized to do so under the Firearms Act or any other Act of Parliament or regulation made under any Act of Parliament contrary to section 99 of the Criminal Code. This charge arose out of allegations between the 1st of January 2013 and the 3rd of October, 2013 in the Town of Petawawa.
[2] The Crown elected to proceed by indictment. The accused elected to proceed before the Ontario Court of Justice and after hearing the facts, I found the accused guilty of the charge.
[3] Pursuant to section 99(2)(a), Arnold Shobway now faces a mandatory minimum sentence of three years in custody.
[4] The Applicant, Arnold Shobway, alleges that section 99(2)(a) infringes section 12 of the Canadian Charter of Rights and Freedoms and should not be applied to his sentencing and that it should be declared unconstitutional.
Facts
[5] The Applicant is currently twenty-six years of age and he is an aboriginal person of Objibway descent. The Applicant grew up on the Walpole Island Reservation in an environment of alcohol, drug abuse and poverty. The Applicant enlisted in the Canadian Forces on or about 2009. He was married in 2010 and he is the father of two children, aged four and two.
[6] The Applicant's marriage dissolved in 2013 and the Applicant's spouse returned to Walpole Island with the two children.
[7] The Applicant has consumed alcohol regularly since he was sixteen years of age. He has also consumed cocaine, Oxycontin and street drugs. The Applicant sold personal property items to feed his addiction and ultimately he sold his service hand gun as well as another hand gun to his drug dealer to pay for his drug debts.
[8] On or about November 6th, 2013, the accused was arrested on some criminal charges and as a result of those charges he was required to surrender his hand guns. He could not produce those hand guns because he had already sold them to his drug dealer. He admitted this to the police and was co-operative. The police then conducted a search warrant on the home of the drug dealer and they located the Applicant's two handguns together with two other firearms. The police noted that when they executed the search warrant and found the Applicant's 9 millimetre handgun, it was loaded. I accept that when the Applicant sold his handguns to the drug dealer that they were unloaded and no ammunition was transferred.
[9] The Applicant was discharged from the Canadian Forces in December of 2013 and he moved to Wallaceburg in southwestern Ontario. The Applicant continues to struggle with substance abuse issues as well as his mental health. He has admitted to suicidal ideation.
Issues
[10] Does the mandatory minimum term of imprisonment set out in section 99(2)(a) violate section 12 of the Canadian Charter of Rights and Freedoms? If it does, should this court declare that section to be null and void under section 52 of the Constitution Act, 1982?
[11] What is the appropriate sentence for the Applicant in this case?
Analysis
[12] Chief Justice McLachlin of the Supreme Court of Canada in the case of R. v. Nur, 2015 SCC 15 set out the rule for the test for infringement of section 12 in paragraphs 38 and 39:
[38] Section 12 of the Charter states that everyone has the right not to be subjected to any cruel and unusual punishment. The question is whether the mandatory minimum sentences imposed by s. 95(2) violate this guarantee. The respondents say they do, because s. 95(2) catches conduct that falls far short of true criminal conduct — for example licensing offences. The Attorney General for Ontario responds that these examples are inadmissible hypotheticals and should not enter into the constitutional analysis, and that in any event, the Crown will choose to prosecute offences of lesser culpability by summary conviction, avoiding the mandatory minimum provisions.
[39] This Court has set a high bar for what constitutes "cruel and unusual . . . punishment" under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he then was) explained at p. 1072 that the test of gross disproportionality "is aimed at punishments that are more than merely excessive". He added, "[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation". A prescribed sentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionate impact on others, rendering the law unconstitutional.
[13] The Supreme Court then continued their analysis of section 718 of the Criminal Code and confirmed that a sentence must be proportionate to the gravity of the offence and a degree of responsibility of the offender. After considering the other sentencing principles, Madam Justice McLachlin summarized the analytical approach to a section 12 Charter argument in paragraph 46 as follows:
[46] To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.
[14] Chief Justice McLachlin then conducted an analysis as to whether or not the court in section 12 Charter cases should consider only the offender before the court or consider how the mandatory minimum section impacts on other persons who might reasonably be caught up by it. She provides her conclusion in paragraph 58 of the R. v. Nur decision as follows:
[58] I conclude that the jurisprudence on general Charter review and on s. 12 review of mandatory minimum sentencing provisions supports the view that a court may look not only at the offender's situation, but at other reasonably foreseeable situations where the impugned law may apply. I see no reason to overrule this settled principle.
[15] Chief Justice McLachlin then went into the definition of "reasonable hypotheticals" in paragraphs 61 and 62 and again drew her conclusion in this case in paragraph 65:
[61] To be sure, the language of "reasonable hypotheticals" in the context of mandatory minimum sentences and the exaggerated debate that has surrounded the term has led some to fear that the potential for finding a law inconsistent with the Charter is limited only by the bounds of a particular judge's imagination. This fear is misplaced. Determining the reasonable reach of a law is essentially a question of statutory interpretation. At bottom, the court is simply asking: What is the reach of the law? What kind of conduct may the law reasonably be expected to catch? What is the law's reasonably foreseeable impact? Courts have always asked these questions in construing the scope of offences and in determining their constitutionality.
[62] The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense. The judge may wish to start with cases that have actually arisen (I will address the usefulness of reported cases later), and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable. Fanciful or remote situations must be excluded: Goltz, at p. 506. To repeat, the exercise must be grounded in experience and common sense. Laws should not be set aside on the basis of mere speculation.
[65] I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations. The constant jurisprudence of this Court and effective constitutional review demand no less. In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons.
[16] Chief Justice McLachlin confirmed that courts may take into account personal characteristics relevant to people who may be caught by the mandatory minimum but they must avoid characteristics that would produce remote or far fetch examples when the court is conducting an inquiry into reasonably foreseeable situations. R. v. Nur paragraph 76 supra.
Application to Shobway
[17] Counsel for the Applicant and the Crown have submitted a number of cases to me on the issue of the appropriate sentencing of the accused. These cases include: R. v. Anderson, [2014] O.J. No. 3648 (S.C.J.); R. v. Gardner, [2014] O.J. No. 4672 (S.C.J.); R. v. Neault, [2013] S.J. No. 645 (Prov. Ct.); R. v. Faria, [2013] O.J. No. 1102 (C.J.); R. v. Sanghera, [2012] B.C.J. No. 1269 (S.C.); R. v. Radjenovic, [2012] B.C.J. No. 854 (S.C.); R. v. Christensen, [2012] B.C.J. No. 2238 (Prov. Ct.); R. v. Cater, [2012] N.S.J. No. 237 (Prov. Ct.); R. v. C.L. [2012] O.J. No. 3094 (C.J.); R. v. Maltais, [2011] N.S.J. No. 546 (S.C.); R. v. Hamilton, [2011] O.J. No. 5466 (S.C.J.). Those cases from various parts of Canada displayed a range of sentencing for section 99 offences to be one year of custody at the low end of the range and seven years at the high end of the range. Those cases involve individuals that are often charged with additional offences and the number of the accused persons had significant criminal records.
[18] The Crown in its submissions has conceded that the sentence for the Applicant in the absence of the mandatory minimum would be a sentence of less than two years. The Crown, however, argues that three years to the Applicant would not be so excessive as to outrage standards of decency and disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable.
[19] The Applicant has argued that but for the mandatory minimum provisions of section 99(2), a judge could consider a possible sentence of a conditional sentence or a twelve month jail sentence. The Applicant also argues that leniency should be provided to him because of the principles set out in R. v. Gladue, [1999] 1 S.C.R. 688 and section 718.2(e) of the Criminal Code. The Applicant relies on the fact that his grandparents were both residential school survivors which impacted on his father's upbringing and subsequent generations. He argues that he witnessed the inter-generational impact of the residential school system through alcohol abuse, drug abuse, poverty and the lack of parenting skills within his community. He further argues for leniency based on the fact that he is a young person who has no previous criminal record. There is no issue of allegations of violence by the Applicant in this case. He further argues that he is the father of two children and has overnight access to his children. He confirms that he pleaded guilty and co-operated with the police. He states that he sold the firearms in question to pay for his drug debt. On the facts of this case, the Applicant argues that the firearms were in fact recovered and no violence was used with these specific firearms. He assisted the police in removing the handguns from the community.
I find that when I take all of these factors into account including the sentencing principles of individual deterrence, general deterrence, rehabilitation, denunciation, and proportionality as well as those principles set out in R. v. Gladue, supra, I find that the appropriate sentence for this accused would be in the range of twelve months to 18 months in custody followed by probation. I find that clearly, a sentence of three years for this Applicant would be excessive and but for the mandatory minimum would likely require appellate intervention.
I further find, however, that due to the fact that these two guns were sold to a drug dealer, the Applicant knew or ought to have known that this was inherently dangerous to the community as those firearms would be used by the drug dealer to guard himself and his illegal drugs. In addition, the Applicant had been a licensed handgun owner and under the circumstance was aware of the regulations regarding the possession of, use of and transferring of hand-guns. I find that the Canadian society would not find a sentence of three years for this Applicant to be so excessive as to outrage their standards of decency and disproportionate to the extent that they would find the punishment abhorrent or intolerable.
Application to a Reasonable Hypothetical
[20] I am mindful of the comments of Chief Justice McLachlin in R. v. Nur supra at paragraph 83 which reads as follows:
[83] Given the minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm flowing from the conduct (i.e. having the gun in one residence as opposed to another), a three-year sentence would be grossly disproportionate. Similar examples can be envisaged. A person inherits a firearm and before she can apprise herself of the licence requirements commits an offence. A spouse finds herself in possession of her husband's firearm and breaches the regulation. We need not focus on a particular hypothetical. The bottom line is that s. 95(1) foreseeably catches licensing offences which involve little or no moral fault and little or no danger to the public. For these offences three years' imprisonment is grossly disproportionate to a fit and fair sentence. Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun owners from making mistakes, to be sure. But a three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in the s. 718 of the Criminal Code and legitimate expectations in a free and democratic society. As the Court of Appeal concluded, there exists a "cavernous disconnect" between the severity of the licensing-type offence and the mandatory minimum three‑year term of imprisonment (para. 176). Consequently, I conclude that s. 95(2)(a)(i) breaches s. 12 of the Charter.
[21] I am further aware that in many rural communities many households contain firearms. This offence was committed in the Town of Petawawa. It is located in Renfrew County which is a rural community. Petawawa also is the location of a large Canadian Forces Base that is the home to approximately four thousand soldiers. It has been in existence for over one hundred years. These soldiers have seen combat most notably in the First World War, the Second World War, and the Korean conflict. Soldiers in these theaters of combat have returned with various firearms including handguns as souvenirs and trophies of war. When these soldiers die, their spouses and families may find themselves in possession of the soldier's handgun and transfer them to other family members, thereby breaching the regulations and committing this same Criminal Code offence. I find that this is a reasonable hypothetical example as it is not far-fetched or only marginally imaginable as a live possibility.
[22] I find that section 99(2) like section 95(1) foreseeably catches licensing offences which involve little moral fault and little danger to the public. For these offences, three years imprisonment is grossly disproportionate to a fit and fair sentence. I also agree with Chief Justice McLachlin that firearms are inherently dangerous and that the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun owners from making mistakes. I further agree that a three year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing as set out in section 718 of the Criminal Code. I conclude that section 99(2)(a) breaches section 12 of the Charter.
[23] For the reasons set out above, I would declare section 99(2)(a) of no force or effect to the extent that it imposes a mandatory three-year minimum term of imprisonment.
The Honourable Mr. Justice G. Radley-Walters
