R. v. Morrisey, [2000] 2 S.C.R. 90

Marty Lorraine Morrisey Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Manitoba and the Attorney General of British Columbia Interveners

Indexed as: R. v. Morrisey

Neutral citation: 2000 SCC 39.

File No.: 26703.

1999: December 9; 2000: September 29.

Present: Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.

on appeal from the court of appeal for nova scotia

Constitutional law — Charter of Rights — Cruel and unusual punishment — Accused convicted of criminal negligence causing death with a firearm — Criminal Code providing for minimum four‑year sentence — Whether minimum sentence constitutes cruel and unusual punishment — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C., 1985, c. C‑46, s. 220(a).

Criminal law — Sentencing — Minimum sentences — Cruel and unusual punishment — Pre‑trial custody — Accused convicted of criminal negligence causing death with a firearm — Criminal Code providing for minimum four‑year sentence — Whether minimum sentence constitutes cruel and unusual punishment — Whether pre‑trial custody should be taken into account — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C., 1985, c. C‑46, s. 220(a).

The accused was drinking with his friend T and T’s father at an isolated camp in the woods, where the accused also began taking prescription drugs. The accused and T successfully cut off a length of a rifle barrel. While T remained at the camp, the accused drove T’s father home. Upon returning to the camp, the accused found T lying in the top bunk in the cabin. While holding the rifle, which he knew to be loaded, he jumped up to the lower bunk in order to shake T — either to awaken him, or to get his attention. The accused lost his footing, and fell. The gun discharged, and the bullet struck T in the head, killing him instantly. The gun was not susceptible to shock discharge. There was no evidence that the accused intended to aim the gun at T. The accused pleaded guilty to criminal negligence causing death, contrary to s. 220(a) of the Criminal Code, and unlawfully pointing a firearm contrary to s. 86(1). He had spent five months in pre‑trial custody. The trial judge found that the four‑year minimum sentence provided for in s. 220(a) violated s. 12 of the Canadian Charter of Rights and Freedoms, and sentenced the accused to two years’ imprisonment for the criminal negligence charge (taking into account pre‑trial custody) plus one year for the s. 86(1) charge. The trial judge was directed by the Court of Appeal to rehear the matter, as the Attorney General of Canada had not been given notice of the constitutional challenge. Having heard additional arguments, he maintained his original ruling. The Court of Appeal allowed the Crown’s appeal, and imposed a four‑year sentence for the criminal negligence charge, without any credit for pre‑trial custody.

Held: The appeal should be dismissed in all respects except one. The accused’s sentence should be adjusted to take pre‑trial custody into account.

Per Gonthier, Iacobucci, Major, Bastarache and Binnie JJ.: Parliament has created criminal liability under s. 219 of the Criminal Code for people whose conduct evinces a wanton or reckless disregard for the lives or safety of other people. To be convicted of an offence under s. 220, that wanton or reckless disregard must have caused the death of another person. To receive a four‑year minimum sentence, a firearm must have been used in the commission of this offence. Any behaviour that is “reasonable” cannot be “wanton”. Parliament has thus set a very high threshold that must be met in order to attract criminal liability under s. 220(a) of the Code.

Section 12 of the Charter provides a broad protection to Canadians against punishment which is so excessive as to outrage our society’s sense of decency. The court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from him or her. As well, a court is to consider the actual effect of the punishment on the individual, the penological goals and sentencing principles upon which the sentence is fashioned, the existence of valid alternatives to the punishment imposed, and a comparison of punishments imposed for other crimes in the same jurisdiction. These contextual factors must be first evaluated in light of the particular circumstances of the offender before the court. If the sentence is grossly disproportionate for the individual offender, the court then proceeds to analyse whether the infringement of s. 12 can be justified under s. 1 of the Charter. If it is not disproportionate for the individual offender, then the court is still to consider the constitutionality of the sentence with reasonable hypotheticals.

Both the courts below agreed, and the defence has conceded, that a four‑year minimum sentence would not be cruel and unusual punishment for this offender. An analysis of the gravity of the offence requires an understanding of both the character of the offender’s actions, and the consequences of those actions. That the accused’s actions in this case had particularly grave consequences for the victim is not challenged. With respect to the character of the actions, to attract criminal liability under s. 220(a) one must demonstrate wanton and reckless disregard for life and safety. When both aspects of the gravity of the offence factor are considered, it is clear that s. 220(a) involves those who have committed a particularly grave offence. While there are mitigating factors, these do not offset the aggravating factors in this case, nor do they displace the gravity of the offence. With respect to the actual effect of the punishment on the offender, although a four‑year term in a federal penitentiary is unquestionably a serious sentence, there are no special punitive measures created to punish these offenders, and they would be eligible for parole after 16 months unless the trial judge directs otherwise. Moreover, pre‑trial custody can be counted against a minimum sentence. While it may be ideal to craft a minimum sentencing regime for this crime that would simultaneously pursue all of the traditional sentencing principles, this is not necessary for s. 12 purposes. 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.

The proper approach to reasonable hypotheticals is to develop imaginable circumstances which could commonly arise with a degree of generality appropriate to the particular offence. In both of the hypotheticals that commonly arise from the reported cases, a four‑year imprisonment would not be cruel and unusual punishment for such offenders.

The trial judge credited the accused with one year for the five months spent in pre‑trial custody, taking into account the fact that he pleaded guilty at the outset. Since this one‑year credit was not demonstrably unfit, the accused must serve the four‑year minimum sentence, less the one‑year credit for pre‑trial custody.

Per McLachlin and Arbour JJ.: The four‑year minimum sentence provided for in s. 220(a) of the Criminal Code is not so excessive or grossly disproportionate as to constitute cruel and unusual punishment for this offender in the particular circumstances of this case. Because the offence of criminal negligence causing death with a firearm is so fact‑driven, however, it cannot be concluded that the four‑year minimum sentence is not grossly disproportionate for “any” reasonable hypothetical offender. It is impossible to canvass, with the requisite richness of factual details, the many varied circumstances in which a charge of manslaughter could arise, even when the factual scenarios are restricted to manslaughter by criminal negligence, and involving the use of a firearm. Furthermore, real cases, representing situations that have arisen, must be seen as reasonable hypotheticals for purposes of a s. 12 analysis, no matter how unusual they may appear.

To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, in particular, in ss. 718, 718.1 and 718.2 of the Criminal Code. By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The mandatory minimum sentences for firearms‑related offences must therefore act as an inflationary floor, setting a new minimum punishment applicable to the so‑called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. The proper approach to the interpretation of the constitutional validity of mandatory minimum sentences, under the guidance of the jurisprudence of this Court, is to give effect to this inflationary scheme, except when the statutory impossibility of going below the minimum is offensive to s. 12 of the Charter, where the mandatory minimum requires the imposition of a sentence that would be not merely unfit, which is constitutionally permissible, but rather grossly disproportionate to what the appropriate punishment should be.

There will unavoidably be a case in which a four‑year minimum sentence for this offence will be grossly disproportionate. Since the inflationary effect of the mandatory floor is likely to increase all penalties for this offence, there will arguably be fewer such cases for which four years will be grossly disproportionate and therefore unconstitutional. Nonetheless, in light of the variety of conduct captured by this prohibition, it is likely that there will continue to be some. In general terms, gross disproportionality is likely to manifest itself in the context of spousal abuse, for example. Another type of situation in which the four‑year mandatory minimum sentence under s. 220(a) could be found to violate s. 12 involves police officers or security guards who are required to carry firearms as a condition of their employment and who, in the course of their duty, negligently kill someone with their firearm. While the law will of course hold such persons to a high standard of care in the use and handling of their firearms, it is nonetheless conceivable that circumstances could arise in which a four‑year penitentiary term could constitute cruel and unusual punishment. The constitutionality of s. 220(a) should therefore be upheld generally, although it should not be applied in a future case if the minimum penalty is found to be grossly disproportionate for that future offender.

Cases Cited

By Gonthier J.

Applied: R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; referred to: R. v. Lefthand (1981), 31 A.R. 459; R. v. Saswirsky (1981), 6 W.C.B. 344; R. v. J.C. (1992), 58 O.A.C. 157; R. v. Bell (1992), 17 B.C.A.C. 36; R. v. Yun Ying Lee (1981), 6 W.C.B. 344; R. v. Anderson, [1990] 1 S.C.R. 265; R. v. Davis, [1985] B.C.J. No. 1732 (QL); R. v. Morehouse (1982), 38 N.B.R. (2d) 367: R. v. McCrea, [1970] 3 C.C.C. 77; R. v. Weber, [1973] 1 W.W.R. 262; R. v. Stewart, [1993] O.J. No. 954 (QL); R. v. Olav D (1986), 1 W.C.B. (2d) 42; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Kumar (1993), 85 C.C.C. (3d) 417; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Felawka, [1993] 4 S.C.R. 199; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Pettigrew (1990), 56 C.C.C. (3d) 390.

By Arbour J.

Referred to: R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Collins, [1999] O.J. No. 2437 (QL); R. v. Gregor (1953), 31 M.P.R. 99; R. v. Smith, [1987] 1 S.C.R. 1045; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, rev’g (1998), 125 C.C.C. (3d) 43; R. v. Goltz, [1991] 3 S.C.R. 485; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; R. v. Mills (1999), 133 C.C.C. (3d) 451; R. v. McDonald (1998), 127 C.C.C. (3d) 57; R. v. Lapierre (1998), 123 C.C.C. (3d) 332; R. v. Roberts (1998), 199 N.B.R. (2d) 387; R. v. Hainnu, [1998] N.W.T.J. No. 101 (QL); R. v. Bill (1997), 13 C.R. (5th) 103 and (1998), 13 C.R. (5th) 125, rev’d on other grounds (1999), 123 B.C.A.C. 159; R. v. Scozzafava, [1997] O.J. No. 5804 (QL); R. v. McCrea, [1970] 3 C.C.C. 77; R. v. Weber, [1973] 1 W.W.R. 262; R. v. Lefthand (1981), 31 A.R. 459; R. v. Bell (1992), 17 B.C.A.C. 36; R. v. J.C. (1992), 58 O.A.C. 157; R. v. Saswirsky (1981), 6 W.C.B. 344; R. v. Yun Ying Lee (1981), 6 W.C.B. 344; R. v. Ball, [1993] O.J. No. 3207 (QL); R. v. Ferguson, [1997] O.J. No. 2488 (QL); R. v. D.E.C., [1995] B.C.J. No. 1074 (QL); R. v. Chivers, [1988] N.W.T.R. 134; R. v. Pettigrew (1990), 56 C.C.C. (3d) 390; R. v. Deane, [1997] O.J. No. 3578 (QL); R. v. Saulnier (1987), 21 B.C.L.R. (2d) 232.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 12.

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 119(1)(c)(i), 120(1), 121(1).

Criminal Code, R.S.C. 1970, c. C‑34, s. 203.

Criminal Code, R.S.C., 1985, c. C‑46 [am. 1995, c. 22; am. 1995, c. 39], ss. 86, 219, 220(a), 222(1), (4), (5), 234, 236(a), 239(a), 244, 272(2)(a), 273(2)(a), 279(1.1)(a), 279.1(2)(a), 344(a), 346(1.1)(a), Part XXIII, 718, 718.1, 718.2(b), (e), 743.6.

Firearms Act, S.C. 1995, c. 39.

Authors Cited

Canada. Senate. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 60, October 19, 1995.

Hung, Kwing. Firearm Statistics. Ottawa: Research and Statistics Division, Department of Justice, 1999.

APPEAL from a judgment of the Nova Scotia Court of Appeal (1998), 1998 NSCA 91, 167 N.S.R. (2d) 43, 502 A.P.R. 43, 124 C.C.C. (3d) 38, 14 C.R. (5th) 365, 53 C.R.R. (2d) 39, [1998] N.S.J. No. 116 (QL), allowing the Crown’s appeal from the decision of Scanlan J. (1997), 161 N.S.R. (2d) 91, 477 A.P.R. 91, [1997] N.S.J. No. 356 (QL), striking down s. 220(a) of the Criminal Code. Appeal dismissed except with respect to one aspect of the Court of Appeal’s order.

Malcolm S. Jeffcock, for the appellant.

Denise C. Smith and Kenneth W. F. Fiske, Q.C., for the respondent.

Graham R. Garton, Q.C., and Theodore K. Tax, for the intervener the Attorney General of Canada.

David Finley, for the intervener the Attorney General for Ontario.

Deborah L. Carlson, for the intervener the Attorney General of Manitoba.

Geoffrey R. Gaul, for the intervener the Attorney General of British Columbia.

The judgment of Gonthier, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by

Gonthier J. –

I. Introduction

1Is a four-year minimum sentence of imprisonment cruel and unusual punishment for the offence of criminal negligence causing death with a firearm? As I set out in these reasons, it is my view that this punishment does not constitute cruel and unusual punishment. The offence of criminal negligence causing death requires proof of wanton and reckless disregard for the lives and safety of other people – a high threshold to pass. This offence does not punish accidents. Nor does it punish the merely unfortunate. It punishes those who use firearms in a manner that represents a marked departure from the standard of care employed by a reasonable person, resulting in death. It is no trivial matter, and Parliament has treated it accordingly.

2Considering all of the factors set out in R. v. Smith, [1987] 1 S.C.R. 1045, and R. v. Goltz, [1991] 3 S.C.R. 485, a four-year minimum sentence does not constitute a grossly disproportionate sentence, either for this individual offender, or for any reasonable hypothetical offender. Accordingly, I am of the opinion that the minimum sentence does not infringe s. 12 of the Canadian Charter of Rights and Freedoms, and the appeal is dismissed on this ground. However, the Court of Appeal failed to take into account the appellant’s pre-trial custody, and pursuant to this Court’s decision in R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, the appellant’s sentence should be adjusted to take pre-trial custody into account. This aspect of the trial judge’s decision is restored. As a result, I would dismiss the appeal in all respects except for this one aspect of the order.

II. Facts

3The relevant facts of this appeal are not in dispute. The appellant is a woodsman and a labourer who lived with his mother in Belmont, Nova Scotia, near Truro. At the time of the offence, he was 35 years old. He had no prior criminal record. He had a drinking problem from the age of 14 until his early 30s. He stopped drinking when he entered a relationship with the victim’s sister, Anita Teed. When they broke up, the appellant started drinking again.

4One such occasion was on May 14, 1996. On that day, the appellant was drinking with his friend, Adrian Teed, and Mr. Teed’s father, Karl Staples, at the house of Mr. Teed’s mother, Essie. The three men left the house together and travelled to the Teeds’ isolated camp in the woods. There, the three continued to drink, and the appellant began taking prescription drugs, including Valium. While Mr. Staples was inside the cabin, the appellant and Mr. Teed successfully cut off a length of a rifle barrel. The appellant told Mr. Teed that the gun was to be used to commit a robbery, but alleges that, in fact, he had intended to kill himself with the weapon. The appellant testified that he wanted to commit suicide as a result of severe depression from a recent breakup with Mr. Teed’s sister, Anita. The trial judge accepted that, at the time, the appellant was quite distraught. It was also accepted that he was very intoxicated.

5While Mr. Teed remained at the camp, the appellant drove Mr. Staples home. Upon returning to the camp, the appellant found Mr. Teed lying in the top bunk in the cabin. While holding the rifle which he knew to be loaded, the appellant jumped up to the lower bunk in order to shake Mr. Teed – either to awaken him, or to get his attention. As might be expected in this state of intoxication, the appellant lost his footing while he jumped, and he fell. The gun discharged, and the bullet struck Mr. Teed in the head, killing him instantly. The gun was not susceptible to shock discharge. There was no evidence that the appellant intended to aim the gun at the victim.

6The appellant dragged Mr. Teed’s body out of the cabin to a point in the woods approximately five kilometres away from the cabin, and covered it with a blanket. The appellant then drove to Essie Teed’s house. He pointed the gun at Mr. Teed’s mother, telling her to be quiet and to sit down. He told her he had already killed one person that night. Mrs. Teed calmed the appellant down, and took the rifle from him. The appellant stated that he wanted to kill himself. In order to calm the appellant down further, Mrs. Teed took the accused to see the victim’s sister, Anita Teed.

7After this meeting, Essie Teed returned the rifle to the appellant, and told him to not bring it around anymore. The appellant disposed of the rifle in a river. The following day, he allegedly attempted to commit suicide by setting the cabin on fire while remaining inside. Forty-five minutes later, he admitted himself into the psychiatric ward of a local hospital, where he confessed to killing Mr. Teed. The appellant has always been very remorseful. At trial, the appellant pleaded guilty to criminal negligence causing death, contrary to s. 220(a) of the Criminal Code, R.S.C., 1985, c. C‑46, and unlawfully pointing a firearm, contrary to s. 86 of the Code.

8Both Anita Teed and Essie Teed feared for their safety after the incident, and this formed the basis of the probation officer’s pre-sentencing report recommendation that community supervision would be inappropriate. The appellant spent five months in pre-trial custody. At his sentencing, the appellant challenged the constitutional validity of the minimum sentence imposed pursuant to s. 220(a) of the Criminal Code. The trial judge found that the provision violated s. 12 of the Charter, and sentenced the appellant to two years’ imprisonment for the criminal negligence charge (taking into account pre-trial custody), and one year consecutive for the unlawful pointing of a firearm charge. The Crown appealed. The Court of Appeal allowed the appeal, and imposed a four-year sentence on the appellant, without any credit for pre-trial custody.

III. Judgments Below

A. Nova Scotia Supreme Court (1996), 154 N.S.R. (2d) 278

9Scanlan J. struck down s. 220(a) of the Criminal Code as being contrary to s. 12 of the Charter. Scanlan J. reviewed the test for s. 12 set out in Smith, supra, and Goltz, supra. He found that a four-year minimum sentence would not constitute cruel and unusual punishment for Mr. Morrisey in particular. However, he thought that it would constitute cruel and unusual punishment in other reported cases of criminal negligence causing death with a firearm: R. v. Lefthand (1981), 31 A.R. 459 (Prov. Ct.) (where the accused was charged with pointing a firearm); R. v. Saswirsky (1981), 6 W.C.B. 344 (Ont. Co. Ct.); R. v. J.C. (1992), 58 O.A.C. 157; R. v. Bell (1992), 17 B.C.A.C. 36; and R. v. Yun Yin Lee, Ont. Prov. Ct., June 8, 1981 (summarized at 6 W.C.B. 344).

10Scanlan J. focussed on the lack of intent necessary to be convicted of criminal negligence causing death to find that the minimum sentence of four years was grossly disproportionate. He thought that there was no need for retribution in such cases. Further, specific deterrence would be impossible given the absence of intent. Although there was a legitimate objective to the legislation, which was to force people to take care while using firearms, Scanlan J. thought that the minimum sentence overreached that objective. Having found the minimum sentence to infringe s. 12 of the Charter, Scanlan J. then considered whether the infringement could be justified in a free and democratic society under s. 1 of the Charter. He held that it could not. As such, he struck down the provision.

11Scanlan J. was of the view that a three-year sentence would be appropriate and, having reduced it by one year to credit the five months served in pre-trial detention, he imposed a sentence of imprisonment of two years for the offence of criminal negligence causing death. He imposed an additional one-year sentence, to be served consecutively, for unlawfully pointing a firearm.

B. Nova Scotia Court of Appeal (1997), 160 N.S.R. (2d) 13

12Scanlan J. was directed by the Court of Appeal to rehear the matter, as the Attorney General of Canada had not been given notice of the constitutional challenge to s. 220(a) of the Criminal Code. Scanlan J., having heard additional arguments, maintained his original ruling: (1997), 161 N.S.R. (2d) 91.

C. Nova Scotia Court of Appeal (1998), 1998 NSCA 91, 167 N.S.R. (2d) 43

13Bateman J.A. allowed the appeal. She agreed with Scanlan J. that the four‑year minimum sentence would not be grossly disproportionate for Mr. Morrisey. However, she was not prepared to find the minimum sentence to be grossly disproportionate for the hypotheticals reviewed by Scanlan J. In particular, some of the cases reviewed by Scanlan J. did not represent reasonable hypotheticals, either because the facts reported would not sustain a conviction, or because the offenders were in different circumstances (such as being a young offender).

14The only hypotheticals that Bateman J.A. thought were reasonable were Bell, supra, and Saswirsky, supra. However, Bateman J.A. thought that a four‑year minimum sentence would not be grossly disproportionate for these offenders, as they exemplified the type of conduct that the legislation was specifically designed to prevent. Bateman J.A. held that s. 220(a) does not convict those involved in “tragic accidents” or who exercise “terrible judgment” per se, but rather, requires a wanton or reckless disregard for the lives or safety of other persons that result in death. As such, it was impossible to conceive of a “trivial offender” such as the notional single marijuana cigarette importer in Smith, supra. As a result, Bateman J.A. set aside the judgment of Scanlan J., and sentenced the appellant to the minimum penalty of four years’ imprisonment. She did not deduct any time for pre-trial custody.

IV. Relevant Constitutional and Statutory Provisions

15Criminal Code, R.S.C., 1985, c. C-46

219. (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

(b) by criminal negligence;

Canadian Charter of Rights and Freedoms

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

V. Issues

16On January 26, 1999, the Chief Justice stated the following constitutional questions:

(1) Does s. 220(a) of the Criminal Code infringe the right in s. 12 of the Canadian Charter of Rights and Freedoms not to be subjected to any cruel and unusual treatment or punishment in that it establishes a minimum sentence of four years’ imprisonment for the offence of criminal negligence causing death when a firearm is used in the commission of that offence?

(2) If the answer to the first question is yes, is the infringement demonstrably justified in a free and democratic society as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?

VI. Analysis

A. Criminal Negligence Causing Death

17The courts below noted the lack of reported cases of criminal negligence causing death in circumstances where the accused used a firearm. Indeed, there are few reported cases of someone who has been found by a judge or jury to be guilty of s. 220 who used a firearm. This may be partly attributable to manslaughter charges being laid in cases where criminal negligence might be involved as occurred at the outset in the present case. Almost all that exists are cases where the accused pleaded guilty to the offence, and the facts have been entered by way of an agreed statement of facts. Consequently, it might be useful to review the standard required for a conviction under s. 220(a).

18Generally speaking, Parliament prescribes penalties in the Criminal Code to punish individuals who not only commit a wrongful act, but who also commit that wrongful act intentionally. However, even in the absence of any intent to bring about a given result, Parliament has also created criminal liability under s. 219 for people whose conduct evinces a wanton or reckless disregard for the lives or safety of other people. To be convicted of an offence under s. 220, that wanton or reckless disregard must have caused the death of another person. To receive a four‑year minimum sentence, a firearm must have been used in the commission of this offence.

19The standard that must be met for a conviction under s. 220(a) is therefore higher than a negligence standard in the civil context. To be convicted under this provision, one must have acted in a manner that represents a marked departure from the norm: R. v. Anderson, [1990] 1 S.C.R. 265, at p. 270. Where the risk of harm is very great, as is the case in criminal negligence in the use of firearms causing death cases, it is often easy to conclude that the accused must have foreseen the consequences: Anderson, at p. 270. Nonetheless, in all cases, the Crown must prove more than the simple fact that a gun discharged, causing death. Section 220(a) is not an absolute liability offence. It requires proof of conduct which is such a marked departure from the behaviour of a reasonably prudent person as to show a wanton or reckless disregard for the life or safety of others.

20A simple review of some of the facts of the criminal negligence cases where the accused pleaded guilty reveals the type of conduct caught by this provision. In reviewing these cases, I am not suggesting that these represent the standard that must be met in order to sustain a conviction; rather, they are simply indicative of context. In R. v. Bell (1992), 17 B.C.A.C. 36, the accused had inserted a spent casing of a bullet into his gun and pulled the trigger while pointing it at one of his friends. By accident, a live round had become mixed into the spent rounds and the gun discharged, killing his friend. On a sentence appeal, the Court of Appeal noted the moral blameworthiness of “play acting with a deadly weapon” (p. 37). Even more seriously, in Saswirsky, supra, a police officer played a form of Russian roulette with his girlfriend, knowing a live shell was in the gun, but mistakenly thinking the bullet was not in the firing chamber.

21In J.C., supra, a young offender pointed a gun at his friend’s head and pulled the trigger four times, knowing that there was a single bullet in the gun. After the fourth pull, he opened the gun, smacked the top of the barrel, heard something hit the ground. He thought it was the bullet in the gun falling out. He put the gun to his friend’s head and pulled the trigger again. There was a bullet in the firing chamber and he killed his friend. J.C. thought he checked the gun, but in fact he was not careful enough. In another case, a drunk man shot his drunk friend who had himself asked to be shot at, to see if it would scare him (R. v. Davis, [1985] B.C.J. No. 1732 (QL) (C.A.)). Another drunk man did not remember loading his gun and, to scare his friend, pointed the gun at him and said “bang” as he pulled the trigger and shot him in the face; he killed him (R. v. Morehouse (1982), 38 N.B.R. (2d) 367 (C.A.)). The irresponsibility of these people in endangering the lives of their friends and loved ones is startling and deserving of criminal liability.

22The criminal negligence provision also catches the reckless behaviour of hunters. In R. v. McCrea, [1970] 3 C.C.C. 77 (Sask. C.A.), the accused shot at a Department of National Resources Bombardier in which the victim was a passenger. The accused testified he thought it was a “hump”, and fired his high-powered rifle, killing the other hunter, without knowing what he was firing at. As such, the jury found him guilty under s. 191, the predecessor to s. 220. So too, in R. v. Weber, [1973] 1 W.W.R. 262 (B.C.C.A.), the accused shot at a 14-foot aluminum boat, thinking it to be a moose. It carried three people, one of whom was killed.

23In R. v. Stewart, [1993] O.J. No. 954 (QL) (Prov. Div.), the trial judge gave examples of criminal negligence in the context of hunting. These included “firing across a road or from a vehicle; ... firing at shadows during false dawn; ... firing at the rustle or movement of a branch”. Simply stated, shooting without adequately determining the nature of the target is a marked departure from the behaviour of a prudent hunter. When this behaviour causes the death of an individual, criminal liability attaches under s. 220(a).

24Any behaviour that is “reasonable” cannot be “wanton”. A person handling a gun in a reasonable way with a reasonable belief that a gun is not loaded or cannot go off, or whose gun malfunctions, or who has an ordinary accident with a gun, like dropping it and setting it off, cannot be said to be wanton and reckless. Anderson, supra, in which a man who drove through a red light while intoxicated was acquitted on a charge of criminal negligence causing death, does not preclude the Court from holding that an accident in handling firearms that involves illegal drugs or alcohol is due to objectively wanton and reckless behaviour.

25The case of R. v. Olav D (1986), 1 W.C.B. (2d) 42 (Ont. U.F.C.), illustrates a situation where death by gunfire did not amount to criminal negligence. The accused young offender had a reasonable belief that the gun was unloaded. Detailed jurisprudence has also developed around hunting in which judges have exonerated people who had a reasonable belief that the person they shot was prey and not a person. That a hunter was camouflaged in the colours of a moose made this belief reasonable in Stewart, supra, for example. There the hunter took precautions and made a reasonable mistake. There are reasonable and unreasonable hunting accidents, just as there are reasonable and unreasonable accidents that occur with firearms in other contexts. All of these accidents are tragic, but not all of them attract criminal liability.

B. Cruel and Unusual Punishment

26Section 12 of the Charter provides a broad protection to Canadians against punishment which is so excessive as to outrage our society’s sense of decency: Smith, supra, at p. 1072; Goltz, supra, at p. 499; R. v. Luxton, [1990] 2 S.C.R. 711, at p. 724. The court’s inquiry is focussed not only on the purpose of the punishment, but also on its effect on the individual offender. Where a punishment is merely disproportionate, no remedy can be found under s. 12. Rather, the court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. As I said in Goltz, at p. 501, “the test is not one which is quick to invalidate sentences crafted by legislators.”

27In order to properly consider a s. 12 challenge to a punishment, the court must examine all of the relevant contextual factors. No single factor set out in Smith or Goltz is paramount: see Goltz, at pp. 501-2. In Smith, at p. 1073, Lamer J., as he then was, set out some of the relevant factors as follows:

In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender.

28In Goltz, at p. 500, I also noted that certain other factors were necessary for a full contextual understanding of the sentencing provision. In particular, a court is to consider: the actual effect of the punishment on the individual, the penological goals and sentencing principles upon which the sentence is fashioned, the existence of valid alternatives to the punishment imposed, and a comparison of punishments imposed for other crimes in the same jurisdiction. None of these factors will be “in themselves decisive to a determination of gross disproportionality” (p. 500).

29These contextual factors must be first evaluated in light of the particular circumstances of the offender before the court. If the sentence is grossly disproportionate for the individual offender, the court then proceeds to analyse whether the infringement of s. 12 can be justified under s. 1 of the Charter. If it is not disproportionate for the individual offender, then the court is still to consider the constitutionality of the sentence with reasonable hypotheticals. If the sentence would be grossly disproportionate in a reasonable hypothetical case, then the only refuge for the sentencing provision can be found under s. 1.

30What constitutes a reasonable hypothetical? In Goltz, at p. 506, I said that reasonable hypotheticals could not be “far-fetched or marginally imaginable cases”. They cannot be “remote or extreme examples” (p. 515). The reasonableness of the hypothetical cannot be overstated, but this means that it must be reasonable in view of the crime in question. 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” (p. 1080), such as the individual importing a single “joint”.

31In Goltz, I required examples that “could commonly arise in day-to-day life” (p. 516). This was appropriate for the offence of driving while prohibited under the B.C. Motor Vehicle Act because that Act touched upon everyday life. It must be recognized that criminal negligence homicides do not easily lend themselves to resorting to reasonable hypotheticals as guides to assessing punishment as cruel and unusual as they can be committed in an almost infinite variety of ways. Nevertheless, hypotheticals remain very useful in determining whether s. 12 is violated in this case.

32In this case, the trial judge and the Court of Appeal preferred to rest their analysis on reported cases, rather than conjuring up imagined hypotheticals. I sympathize with the approach taken by the trial judge; it is unquestionable that there is an “air of unreality” about employing creative energy in crafting reasonable hypotheticals: Smith, per McIntyre J. (dissenting), at p. 1083; R. v. Kumar (1993), 85 C.C.C. (3d) 417 (B.C.C.A.), at p. 449. However, as the Court of Appeal discovered, there are also difficulties involved with using actual cases. The facts may not be reported accurately where an individual pleads guilty to the offence, and the facts are entered by way of agreed statement. Further, a reported case could be one of the “marginal” cases, not contemplated by the approach set out in Goltz.

33Again, 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 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.

C. Is Section 220(a) Cruel and Unusual Punishment for This Offender?

34Both of the courts below agreed, and the appellant has conceded, that a four-year minimum sentence would not be cruel and unusual punishment for Mr. Morrisey. The trial judge stated that he would have imposed a three-year term of imprisonment if there had been no minimum sentence, and one additional year did not, in his mind, constitute cruel and unusual punishment. Although I agree, I prefer to arrive at that answer only by fully analysing the context, as this Court has set out in Goltz and Smith.

(1) Gravity of the Offence

35As set out above, the first factor to consider is the gravity of the offence. An analysis of the gravity of the offence requires an understanding of both the character of the offender’s actions, and the consequences of those actions: Goltz, at pp. 510-11. That the appellant’s actions had particularly grave consequences for the victim is not challenged. Mr. Teed was killed because of the appellant’s actions. There is no more serious consequence.

36The other aspect of the gravity factor – the character of the offender’s actions – caused more concern for the trial judge. Scanlan J. thought that an unintentional act constituted a far less grave offence than an intentional act: para. 23. As a general rule, this point cannot be seriously challenged. We attribute greater moral blameworthiness to those who knowingly break the law than those who do so unintentionally: see R. v. Martineau, [1990] 2 S.C.R. 633, at p. 645. However, the analysis does not stop there. As I explained at paras. 17-24 above, Parliament has set a very high threshold that must be met in order to attract criminal liability under s. 220(a). One must demonstrate wanton and reckless disregard for life and safety. One cannot emphasize this point enough: this provision does not convict people who merely cause death unintentionally. In addition to causing death using a firearm, the Crown must establish that the accused acted in a manner that was a marked departure from the standard employed by a reasonable person. Their actions must be wanton or reckless, and deserving of criminal liability.

37When both aspects of the gravity of the offence factor are considered, it is clear that s. 220(a) involves those who have committed a particularly grave offence. The actions attracting liability must exhibit wanton and reckless disregard for human life and safety. Where one acts in such a manner, using a firearm, and causes death, then one is guilty of a particularly serious crime. Tragic though it may be for the offender as well as the victim, the offence remains a very serious one.

(2) Particular Circumstances of the Offender and the Case

38These two factors require an inquiry into the events that transpired on May 14, 1996. At this stage, the reviewing court is to look for mitigating and aggravating factors that would affect the appropriateness of the sentence: Goltz, supra, at pp. 512-13. In this case, there are both. The appellant was very intoxicated. Further, he mixed alcohol with prescription drugs. He carried a loaded weapon into a small cabin. He was in a state of extreme psychological distress. In this state of intoxication, he recklessly jumped from the ground to a bunk bed carrying a loaded gun, with the foreseeable consequence of losing his footing and falling. The gun was not susceptible to shock discharge, yet it discharged. Mr. Teed was killed by a wound to the head. Instead of contacting the police or ambulance services, the appellant dragged the victim’s body from what was described at the sentencing as an “incomprehensibly abhorrent scene” to a location in the woods in order to hide it. Clearly, the circumstances of this offence indicate the seriousness of the appellant’s crime.

39That said, there are mitigating factors as well. The trial judge noted that the appellant has never been in trouble with the law prior to this offence. The appellant was remorseful, not only before the court, but from the time that he killed Mr. Teed. The trial judge found this remorse to be sincere. Further, he accepted that the appellant had assumed responsibility for his actions. Finally, the trial judge found that the appellant is able to work and support himself in the future. In a traditional sentencing regime, all of these factors would be relevant for fashioning an appropriate sentence.

40On balance, I am not convinced that the mitigating factors offset the aggravating factors in this case. Nor am I convinced that the mitigating factors displace the gravity of the offence. The remorse demonstrated by the appellant is not at all surprising, given the nature of the offence. Nobody is alleging that the appellant intended to kill Mr. Teed; malice is neither alleged nor proven. In these circumstances, remorse is to be expected. The absence of a criminal record is also not surprising, given the nature of this offence. As the criminally negligent do not intend the results they cause, acts of criminal negligence are not generally committed as part of a pattern or a career of criminality. I would sincerely doubt that there are many career criminals founding their crime spree on criminal negligence. Finally, the prospects for employment, while relevant, cannot be dispositive by themselves for determining the constitutionality of the punishment.

(3) The Actual Effect of the Punishment on the Offender

41This factor requires the court to consider how the offender will be personally affected by the actual punishment imposed. It will be relevant to consider the nature and conditions of the sentence, as well as the duration of the sentence: Smith, at p. 1073; Goltz, at pp. 513-14. The availability of escorted absences and intermittent sentences will also be relevant for this inquiry: Goltz, at p. 514. In R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 62, Lamer C.J. said that “a grant of parole represents a change in the conditions under which a judicial sentence must be served” (emphasis omitted). Therefore, the possibility of day parole and full parole will also be relevant: Luxton, supra, at p. 725; R. v. Lyons, [1987] 2 S.C.R. 309, at pp. 339-43. In short, this factor requires the reviewing court to fully understand the impact of the sentence as it will be actually served.

42A four-year term in a federal penitentiary is unquestionably a serious sentence. However, this seriousness does not constitute, by itself, cruel and unusual punishment. As the Attorney General of Canada correctly pointed out, there are no special punitive measures created to punish these offenders. Further, it is notable that on a four-year sentence, individuals convicted of criminal negligence causing death using a firearm would be eligible for parole after 16 months unless the trial judge directs otherwise: Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 120(1); Criminal Code, s. 743.6. Day parole would be possible after 10 months: Corrections and Conditional Release Act, s. 119(1)(c)(i). Excessive hardship and physical or mental health problems are addressed by s. 121(1) of the Corrections and Conditional Release Act. Further, it is relevant to note that in Wust, supra, this Court has held that pre-trial custody can be counted against a minimum sentence. All of these factors serve to mitigate against the harshness of the appellant’s sentence.

(4) Penological Goals and Sentencing Principles

43These factors are analysed to determine whether Parliament was responding to a pressing problem, and whether its response is founded on recognized sentencing principles. The respondent and the interveners made ample submissions on the necessity for a unified approach on firearm-related crimes. While it is true that gun-related deaths in general have been decreasing steadily since the 1970s, certain key statistics are telling. In 1995 alone, there were 49 “accidents” causing death involving firearms, coupled with 145 homicidal deaths involving firearms: K. Hung, Firearm Statistics (1999), Table 14. Accidental deaths involving firearms in Canada have remained relatively constant since 1979. Unquestionably, Parliament is entitled to take appropriate measures to address the pressing problem of firearm-related deaths, especially given that it has been consistently a serious problem for over 20 years. Further, it is appropriate for Parliament to discourage the careless use of firearms generally since, as Cory J. noted in R. v. Felawka, [1993] 4 S.C.R. 199, at p. 211, a firearm always “presents the ultimate threat of death to those in its presence”.

44Of course, Parliament can only do so in a manner consistent with existing sentencing principles. The fundamental principle of sentencing is proportionality: Criminal Code, s. 718.1; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at para. 54. It is the essence of a s. 12 analysis. The other sentencing principles set down by Parliament in s. 718 and recognized by this Court in R. v. Gladue, [1999] 1 S.C.R. 688, at paras. 42-43, and Proulx, supra, include separation, specific and general deterrence, retribution, rehabilitation, and restorative justice principles of reparations for harm and promoting a sense of responsibility in the offender for the harm done to the victims and the communities.

45With respect, the trial judge placed too much emphasis on the absence of any need for specific deterrence for this crime, while the Court of Appeal placed too much emphasis on the need for general deterrence. The presence or absence of any one sentencing principle should never be determinative at this stage of the analysis under s. 12. General deterrence cannot, on its own, prevent a punishment from being cruel and unusual. But it is still relevant when the court is considering a range of sentences that are all acceptable under s. 12. General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual. It could also possibly serve as a justification under s. 1 if it were ever necessary to justify a violation of s. 12, but that is not the case here.

46While it may be ideal to craft a minimum sentencing regime for this crime that would simultaneously pursue all of the traditional sentencing principles, this is not necessary for s. 12 purposes. As La Forest J. said in Lyons, supra, at p. 329, “the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender”. 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. It cannot be disputed that there is a need for general deterrence. This legislation dictates that those who pick up a gun must exercise care when handling it. It is consistent with the jurisprudence on the use of firearms: R. v. Pettigrew (1990), 56 C.C.C. (3d) 390 (B.C.C.A.), at p. 398. Failure to exercise care will have tragic consequences not only for the victim, but also for the offender.

47Further, this minimum sentence serves the principle of denunciation, which Lamer C.J. described in M. (C.A.), supra, at para. 81, as being “a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values”. One of the most fundamental of our basic code of values is respect for life. Although less morally blameworthy than murder, criminal negligence causing death is still morally culpable behaviour that warrants a response by Parliament dictating that wanton or reckless disregard for the life and safety of others is simply not acceptable.

48Finally, the minimum sentence serves the principle of retributive justice. In M. (C.A.), at para. 79, this Court unanimously recognized the importance of retribution to sanction the moral culpability of an offender. Retribution represents “the fundamental requirement that a sentence imposed be ‘just and appropriate’ under the circumstances”. This idea is apposite in the context of upholding a minimum sentence for criminal negligence causing death with a firearm. The minimum sentence forces the offender to acknowledge the harm that he has caused, and metes out a punishment commensurate with that harm.

(5) Other Factors

49Counsel for the appellant has presented no other arguments to suggest that the minimum sentence is cruel and unusual. No valid alternatives were identified. It has not been demonstrated that a comparison with other crimes in the same jurisdiction suggests that this sentence is cruel and unusual. In fact, when considering the nature of the harm caused by the appellant, it is at least arguable that this crime is more serious than others that receive the same sentence, such as robbery with a firearm. From a harm perspective, this crime is much more severe. As it is my conclusion that the trial courts below were correct in finding that the minimum sentence is not cruel and unusual punishment for the appellant, it is now necessary to address the hypothetical situations considered by the trial judge in striking down s. 220(a).

D. Reasonable Hypotheticals

50The 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, supra. 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. It is to be recalled that in Smith there were only two considerations for the hypothetical: first, the offender was a first-time offender; and second, he or she imported a single joint.

51It appears to me that there are two types of situations that commonly arise and which can be gleaned from the reported cases. The first involves an individual playing around with a gun. The offender unreasonably thinks that the gun will not go off. He aims it at another person and discharges it, killing someone. This includes playing Russian roulette (Saswirsky, supra, and J.C., supra), and pretending to shoot a friend to frighten him (Davis, supra, and Morehouse, supra).

52The second hypothetical situation that arises from the reported cases involves a hunting trip gone awry. While hunting, the offender spots an object in the woods. The offender is either unsure what the object is or forms a completely unreasonable belief that the object is game. In either case, the object is, in fact, another human being. The hunter fires a gun at the object and kills the other person (McCrea, supra, and Weber, supra).

53In both of these hypotheticals, it is my view that a four-year imprisonment would not be cruel and unusual punishment for such offenders. Perhaps the most egregious hypotheticals reviewed are the individuals playing with guns. Firearms are not toys. There is no room for error when a trigger is pulled. If the gun is loaded, there is a sufficient probability that any person in the line of fire could be killed. The need for general deterrence is as great (if not greater) for the hypothetical offenders playing with guns as it is for people such as the appellant. Considering the gravity of the offence, the denunciation and retributive justice principles satisfied by the minimum sentence are equally applicable in this hypothetical. In such circumstances, there can be no question that the four-year minimum is as appropriate as it is for the appellant.

54The four-year minimum sentence equally sends a message to people who are in a position to harm people to take care when handling their weapon. Hunting accidents occur all too easily. When individuals with weapons are hunting in such a degree of proximity, extra steps are necessary to ensure that other hunters are not harmed. Therefore, when hunting, before hunters pull the trigger on their guns, they must form a reasonable belief that the object they are shooting at is not another human. Extra vigilance is necessary with guns, and while society would expect people to take precautions on their own, unfortunately people do not always do so. Consequently, Parliament has sent an extra message to such people: failure to be careful will attract severe criminal penalties. The sentence represents society’s denunciation, having regard to the gravity of the crime; it provides retributive justice to the family of the victim and the community in general; and it serves a general deterrent function to prevent others from acting so recklessly in the future.

E. Conclusion on Cruel and Unusual Punishment

55The four-year term of imprisonment that the appellant must serve does not constitute cruel and unusual punishment. In the circumstances of this case, it is clear that the appellant’s criminal conduct was particularly grave. The punishment imposed on the appellant serves legitimate penological goals and is founded on recognized sentencing principles. The effect of the punishment on the appellant is mitigated by the availability of parole and the deductibility of pre-trial custody. Further, the sentence does not violate the Charter in any reasonable hypothetical scenario provided to this Court.

56Therefore, it is my view that s. 12 is not infringed. As a result, it is unnecessary to consider the s. 1 arguments advanced by the parties. Further, it is unnecessary to consider the availability of constitutional exemptions, especially given the concession by the appellant that the four-year minimum sentence would not be grossly disproportionate for him personally.

F. Pre-Trial Custody

57Since the appellant’s hearing, this Court has had the opportunity to comment on the propriety of considering time spent in pre-trial custody in relation to mandatory minimum sentences. In Wust, supra, this Court held that pre-trial custody can be deducted from minimum sentences of imprisonment in appropriate cases. In the case at bar, when the trial judge struck down s. 220(a) of the Criminal Code, he fashioned a sentence which took into account the five months’ pre-trial custody. He credited the appellant with one year for this time spent in pre-trial custody, taking into account the fact that the accused pleaded guilty at the outset. Employing the standard of appellate review set out in Proulx, supra, at para. 131, and in Wust, I do not find reversible error in granting credit. A one-year credit for five months of pre-trial custody is not demonstrably unfit. Accordingly, it is my view that the appellant must serve the four-year minimum sentence, less the one-year credit for pre-trial custody.

VII. Disposition

58As a result, the appeal is dismissed on the constitutional questions. The four-year minimum sentence for criminal negligence causing death while using a firearm does not constitute cruel and unusual punishment. The Court of Appeal’s judgment is affirmed on this ground. However, the trial judge’s order relating to pre-trial custody is restored. The appellant shall be sentenced to three years’ imprisonment for the offence under s. 220(a), established after taking into account the five months’ pre-trial custody. I therefore would answer the constitutional questions as follows:

(1) Does s. 220(a) of the Criminal Code infringe the right in s. 12 of the Canadian Charter of Rights and Freedoms not to be subjected to any cruel and unusual treatment or punishment in that it establishes a minimum sentence of four years’ imprisonment for the offence of criminal negligence causing death when a firearm is used in the commission of that offence?

Answer: No.

(2) If the answer to the first question is yes, is the infringement demonstrably justified in a free and democratic society as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: Given the answer to the first constitutional question, it is unnecessary to answer this question.

The reasons of McLachlin and Arbour JJ. were delivered by

Arbour J. –

I. Introduction

59This appeal concerns a challenge, under s. 12 of the Canadian Charter of Rights and Freedoms, to the constitutionality of s. 220(a) of the Criminal Code, R.S.C., 1985, c. C-46, which imposes a mandatory minimum sentence of four years upon conviction for criminal negligence causing death with a firearm. I have read Justice Gonthier’s reasons and I agree with him that there is no breach of s. 12 of the Charter with regard to the first stage of the constitutional analysis. Indeed, this is consistent with the decisions of both lower courts and the position of the appellant: the mandatory four-year sentence is not so excessive or grossly disproportionate as to constitute cruel and unusual punishment for this offender in the particular circumstances of this case.

60However, it is with regard to the second stage of the analysis, where the constitutionality of the sentencing provision is considered in light of reasonable hypotheticals, that I disagree with the reasons of my colleague. Because the offence of criminal negligence causing death with a firearm is so fact-driven, I cannot conclude that the four-year minimum sentence is not grossly disproportionate for “any” reasonable hypothetical offender. My colleague is able to reach this conclusion largely because he has restricted the reasonable hypothetical analysis to “imaginable circumstances which could commonly arise with a degree of generality appropriate to the particular offence” (para. 50). I believe that this approach is inappropriate and, indeed, unworkable for the offence before us, for several reasons.

61First, the analysis cannot be confined to the specific offence contained in s. 220(a) of the Code. There is a great deal of overlap between some of the culpable homicides which are not classified as murder, such as unlawful act manslaughter and manslaughter by criminal negligence. Moreover, there is no difference between the offence charged here and manslaughter by criminal negligence. Section 222(5)(b) of the Criminal Code, read in conjunction with s. 234, makes clear that the offence of criminal negligence causing death is a type of manslaughter; see also R. v. Creighton, [1993] 3 S.C.R. 3, at pp. 41-42, per McLachlin J. (as she then was). For ease of reference, I set out the relevant provisions:

220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years;...

222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

(b) by criminal negligence;

234. Culpable homicide that is not murder or infanticide is manslaughter.

235. Every person who commits manslaughter is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; ...

62The circumstances of this case palpably demonstrate the overlap: the accused was initially charged with manslaughter and there is nothing in the record that explains why he was committed for trial on the charge of criminal negligence causing death rather than on the original charge of manslaughter. Nothing turns on this since the two are totally interchangeable. This is further demonstrated by cases, such as R. v. Collins, [1999] O.J. No. 2437 (QL) (S.C.J.), which indicate that the s. 86(2) offence of careless handling or use of a firearm is a lesser, included offence to criminal negligence causing death, the distinction turning on the degree to which the conduct departs from the required standard. The equivalency between the two offences is further demonstrated by the sentencing provisions of s. 220(a) and s. 236(a), both of which provide a four-year, mandatory minimum sentence where a firearm is used in the commission of criminal

negligence causing death and manslaughter, respectively.

63Secondly, as recognized in Creighton, at p. 48, and demonstrated by the reported cases, manslaughter can occur in a great variety of circumstances. This is reflected by the very wide range of sentences imposed for the offence. It does not overstate the circumstantial diversity giving rise to the offence of manslaughter to observe that it is only with respect to this offence that one could expect to see fit sentences ranging from suspended sentences to life imprisonment. The Nova Scotia Supreme Court (in banco), as many other courts have done before and since, recognized the wide range of appropriate sentences for manslaughter in R. v. Gregor (1953), 31 M.P.R. 99,

at p. 101:

It may be said of manslaughter, differing in that respect from other crimes, that the legal limits of possible sentences is [sic] very great. There are cases of manslaughter where the line between crime and accident is narrow and where a sentence of a few months’ imprisonment is appropriate. On the other hand, there are cases where the proper sentence approaches or reaches the legal limit of imprisonment for life. Different cases involve different facts, as varied as are the actions and the thoughts of man and it is always difficult to determine the punishment appropriate under the circumstances. No one case can be an exact

guide for another.

64Thirdly, even where the range of conduct is narrowed to cases where death resulted from the criminally negligent use of a firearm, there is still great variation in the type of conduct that is captured by the prohibition. Therefore, to limit this Court’s constitutional analysis to reasonable hypotheticals involving only two generic situations, deaths in a hunting context and deaths resulting from individuals “playing around with a gun”, seems to me to contradict the very nature of the offence and to distort the projection of whether, in the future, a situation will arise where the four-year mandatory minimum will be a grossly disproportionate punishment and thus a breach of

s. 12.

65Essentially, I believe that it is impossible to canvass, with the requisite richness of factual details, the many varied circumstances in which a charge of manslaughter could arise, even when the factual scenarios are restricted to manslaughter by criminal negligence, and involving the use of a firearm. Furthermore, in my view, real cases, representing situations that have arisen, must be seen as reasonable hypotheticals for purposes of a s. 12 analysis, no matter how unusual they may appear. If s. 12 had been raised in any one of the reported cases, and the punishment had been found to be grossly disproportionate for that offender, the penalty would have had to be struck down as unconstitutional, no matter how uncommon the circumstances of the case. In the same way, if such a case were to arise in the future — where the Court would not be able to find it a far-fetched projection since it would have already happened — the same result would

prevail.

66As the law now stands, under the first stage of the s. 12 constitutional analysis, if a minimum penalty is grossly disproportionate in one case, the provision creating that mandatory penalty is struck down as a violation of s. 12. This approach was developed in cases where the offence which attracted the minimum penalty was very different from the offence at issue in the present case. I believe that in order to give effect to Parliament’s explicit desire to increase penalties for firearms-related offences, while recognizing the inevitability that a four-year penalty will be grossly excessive for at least some plausible future manslaughter convictions, a different approach is called for in this case. I would therefore uphold the constitutionality of s. 220(a) generally, while declining to apply it in a future case if the minimum penalty is found to be grossly disproportionate for that future offender. Accordingly, I would dismiss the appeal and suggest a more individualized approach to s. 12 challenges to this provision in the future.

II. Analysis

67Because my colleague, Gonthier J., has already reviewed the facts of this case and judgments in the courts below, it is unnecessary to do so here. I will, instead, proceed directly to my analysis.

68My colleague’s reasons do recognize (at para. 50) that the cases relied upon by the trial judge turned on idiosyncracies demonstrating a level of specificity never contemplated by the approach to s. 12 laid out in R. v. Smith, [1987] 1 S.C.R. 1045. With this observation, I agree. However, to go further, and suggest that the reported cases must only be used as a general guide, erases the level of specificity which is a hallmark of this offence and which, I believe, necessitates the preservation of individualized sentencing for this crime. In this case, of course, individualized sentencing must be achieved not only with reference to the circumstances of the offence and the offender, but also with reference to the constitutional guarantee provided by s. 12, and to the parameters set out by Parliament both in the codified principles of sentencing in Part XXIII of the

Code and in the mandatory minimum sentence of s. 220(a).

69In articulating my concern that the Court cannot possibly canvass all reasonable hypothetical situations in which this minimum sentence could offend s. 12, I do not mean to suggest that all mandatory minimum sentences risk violating s. 12 of the Charter. Lamer J., as he then was, stated in Smith, supra, at p. 1077, that a “minimum mandatory term of imprisonment is obviously not in and of itself cruel and unusual”. Although mandatory minimum sentences depart from the general principles of sentencing expressed in the Code, in particular the fundamental principle of proportionality (s. 718.1), the constitutional norm requires that they be upheld even though demonstrably unfit, as long as they are not grossly disproportionate to the just punishment that would otherwise be required by the particular circumstances of the offence and of the

offender.

70When Parliament brought forward the Firearms Act, S.C. 1995, c. 39, it imposed mandatory minimum sentences of four years for several firearms-related offences in addition to criminal negligence causing death with a firearm (s. 220(a)): manslaughter (s. 236(a)); attempted murder (s. 239(a)); discharging a firearm with intent (s. 244); sexual assault with a weapon (s. 272(2)(a)); aggravated sexual assault (s. 273(2)(a)); kidnapping (s. 279(1.1)(a)); hostage-taking (s. 279.1(2)(a)); robbery (s. 344(a)); and extortion (s. 346(1.1)(a)). The mandatory minimum sentences for these crimes formed part of the federal government’s overall approach to gun control and reflects Parliament’s intent to deter the criminal misuse of firearms: Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at para. 20; see also R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, at para. 32. This Court’s s. 12 jurisprudence has also stressed the importance of deferring to legislated sentences by affirming a stringent s. 12 test: R. v. Goltz, [1991] 3 S.C.R. 485, at p. 501, per Gonthier J.; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, at p. 1417, per Cory J. And as the Attorney General of Canada brought to this Court’s attention in its written submissions, some of the mandatory four-year minimum sentences enacted by the Firearms Act have been challenged on constitutional grounds and upheld. .

71For example, s. 344(a) of the Code (robbery with a firearm) has been found not to infringe s. 12: R. v. Wust (1998), 125 C.C.C. (3d) 43 (B.C.C.A.), rev’d on other grounds, [2000] 1 S.C.R. 455, 2000 SCC 18; R. v. McDonald (1998), 127 C.C.C. (3d) 57 (Ont. C.A.); and R. v. Lapierre (1998), 123 C.C.C. (3d) 332 (Que. C.A.). Similarly, s. 279(1.1)(a) of the Code (kidnapping committed with a firearm) has been found not to violate s. 12: R. v. Mills (1999), 1999 BCCA 159, 133 C.C.C. (3d) 451 (B.C.C.A.). In addition, the New Brunswick Court of Appeal found that the four-year minimum in s. 244(b) of the Code (discharging a firearm with intent to endanger life) did not breach s. 12: R. v. Roberts (1998), 199 N.B.R. (2d) 387. And with respect to s. 236(a) of the Code (manslaughter committed with a firearm), one court has found the four-year mandatory minimum consistent with s. 12: R. v. Hainnu, [1998] N.W.T.J. No. 101 (QL) (S.C.).

72However, in contrast to the Hainnu decision, the British Columbia Supreme Court did find that the s. 236(a) minimum sentence violated s. 12 of the Charter in R. v. Bill (1997), 13 C.R. (5th) 103 and (1998), 13 C.R. (5th) 125, appeal against conviction allowed and new trial ordered (1999), 1999 BCCA 124, 123 B.C.A.C. 159, constitutionality of sentencing provision not considered. In Bill, the accused, who was an aboriginal Canadian, took a loaded rifle while intoxicated to a confrontation involving a group of men and the accused’s family, with the intention of scaring off the group. In the course of the confrontation, the gun discharged, killing one of the men present. Taylor J. made the following observations about the offence of manslaughter, which in my view are equally applicable to the offence of criminal negligence causing death (13 C.R. (5th) 103, at

pp. 114 and 119):

Unlike most other conduct proscribed by the Criminal Code, the offence of manslaughter can be based on an almost infinitely wide range of conduct. Often referred to as an offence that ranges from near accident to near murder, the circumstances that lead to convictions for manslaughter are almost like snowflakes bounded by a basic construction but infinite in details within that construction. The offence of manslaughter requires only an unlawful homicide which in simplistic terms is a homicide occurring in the course of an unlawful act or as a result of criminal negligence. Thus the offence of manslaughter can range from one end of the spectrum where all that need be absent is the intention to cause death, to the other end of the spectrum which is something approaching a mere accident. For

this reason, manslaughter ordinarily carries no minimum sentence.

Manslaughter is quite unlike attempted murder, robbery, sexual assault, or most of the other offences to which I have earlier referred and for which Parliament has imposed a four year minimum sentence when a firearm is used in the commission of the offence. In those offences, the very reason that the offender possesses a firearm is for an unlawful purpose: an intention to murder, to rob, or to commit sexual assault. In contrast, where a firearm is used in commission of the offence of manslaughter, there may be no subjective unlawful intention, given that manslaughter can be committed in circumstances of purely objective recklessness. I note that, in such circumstances, the effectiveness of the principle of deterrence

is to some extent diminished.

73Taylor J., in evaluating the constitutionality of the sentence, found that the four-year minimum sentence provided in s. 236(a) would result in a grossly disproportionate sentence for the accused, thus invalidating the sentence on the first branch of the s. 12 analysis. Of particular importance to Taylor J. was the direction found in s. 718.2(e) of the Code, that all available sanctions other than imprisonment should be considered, particularly for aboriginal offenders (p. 117).

74Prior to the Firearms Act amendments imposing mandatory minimum punishments for manslaughter and criminal negligence causing death with a firearm, this Court recognized the importance of flexibility in determining the appropriate sentence for the offence of manslaughter. McLachlin J. in Creighton, supra, at pp. 48-49, made the following observations regarding the inappropriateness of a minimum sentence to the offence of manslaughter:

Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of

moral fault of the offender.

While Creighton and Bill concerned unlawful act manslaughter, as opposed to manslaughter by criminal negligence, McLachlin J.’s words remain resonant for this case, which concerns the constitutionality of the mandatory minimum sentence for a type of manslaughter, criminal negligence causing death.

75To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, in particular, in ss. 718, 718.1 and 718.2 of the Criminal Code: Wust (S.C.C.), supra, at para. 22. By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions.

76The proper approach to the determination of the constitutional validity of mandatory minimum sentences, under the guidance of the jurisprudence of this Court, is, in my view, to give effect to this inflationary scheme, except when the statutory impossibility of going below the minimum is offensive to s. 12 of the Charter where the mandatory minimum requires the imposition of a sentence that would be not merely unfit, which is constitutionally permissible, but rather one that is grossly disproportionate to what the appropriate punishment should be. The search for the appropriate punishment is not an abstract exercise. It is very much guided by the types of sentences that have been imposed in the past on similarly situated offenders, and because of that, it changes over time, and may come to reflect the inflationary consequences of the proper application of mandatory minimum sentences for particular types of offences. In this respect, I would disagree with Quinn J., who in the firearms manslaughter case of R. v. Scozzafava, [1997] O.J. No. 5804 (QL) (Gen. Div.), at para. 33, observed that the existence of the four-year minimum should not result in a proportional general increase beyond the range of sentences found in pre‑1996 cases.

77The effect of this inflation is already evident when we consider the sentences meted out in the cases cited by my colleague, Gonthier J., as “context” for the conduct caught by s. 220(a). For example, in some early hunting cases, the penalties imposed on conviction were relatively light in comparison to the current mandatory minimum. In R. v. McCrea, [1970] 3 C.C.C. 77 (Sask. C.A.), a hunter, who failed to accurately identify his target and shot another hunter, killing him, was given a $2,000 fine, which in default would become a one-year term of imprisonment. And in R. v. Weber, [1973] 1 W.W.R. 262 (B.C.C.A.), a hunter, who had shot a person sitting in a boat which the hunter had mistaken for a moose, was subsequently sentenced to nine months in jail. In R. v. Lefthand (1981), 31 A.R. 459 (Prov. Ct.), the accused, who was on a hunting trip and intoxicated at the time, was charged with pointing a firearm contrary to s. 84(1) (now s. 87(1)), even though a death resulted when the gun discharged. Although a penalty of up to five years’ imprisonment was available, the judge suspended sentence and imposed a term of two years’ probation. It should be noted that the appellant submitted Lefthand, and other cases discussed immediately below, as examples of reasonable hypotheticals, suitable for demonstrating that the mandatory minimum applied in these circumstances would infringe s. 12.

78In the second type of reasonable hypothetical, which Gonthier J. characterizes as cases where the accused was playing irresponsibly with a gun, the sentences also reflect a pre-Firearms Act evaluation of a suitable sentence. As recently as 1992, the British Columbia Court of Appeal allowed an appeal against sentence by an accused, who after pointing and firing a gun at a group of friends, believing it to contain spent ammunition, killed one of the group. A sentence of 18 months’ incarceration was substituted for the original sentence of three years for the offence of criminal negligence causing death: R. v. Bell (1992), 17 B.C.A.C. 36. In Ontario, the Court of Appeal upheld a sentence of 18 months of open custody imposed on a young offender, who had killed a friend while playing Russian roulette: R. v. J.C. (1992), 58 O.A.C. 157. And, in R. v. Saswirsky, (1981), 6 W.C.B. 344 (Ont. Co. Ct.), a police officer who killed his girlfriend while playing Russian roulette was sentenced to one year in jail upon his conviction for criminal

negligence causing death.

79The case of R. v. Yun Ying Lee, Ont. Prov. Ct., June 8, 1981 (summarized at 6 W.C.B. 344), also submitted by the appellant, is particularly instructive. There, a woman who was visiting her relatives posed for photographs with her seven-year-old nephew, holding a gun which, unbeknownst to her, had been loaded earlier in the day. She pointed the gun at the child and pulled the trigger, killing him. While the accused did plead guilty to the charge of criminal negligence causing death, the Crown presented the factual circumstances to the court by way of examining the investigating police officer on the case, who was cross-examined by the accused’s counsel. The court found that the accused’s behaviour did constitute a wanton and reckless disregard for the lives and safety of others. However, because the judge found that the sentencing principles of deterrence and rehabilitation should not be pre-eminent in the circumstances of this case, the accused received a suspended sentence and was allowed to return to her native Hong

Kong, where she could continue parenting her three children.

80Unfettered by a mandatory minimum, but in the face of an offence carrying a maximum penalty of life imprisonment (see Criminal Code, R.S.C. 1970, c. C-34, s. 203), the trial judge decided that a fit sentence would not require a term of imprisonment. In such a case, in my view, a four-year penitentiary term would not be merely unfit but grossly disproportionate to the appropriate sentence and therefore unconstitutional.

81The Yun Ying Lee case is not marginally imaginable or unlikely to occur. For example, more recently, in R. v. Ball, [1993] O.J. No. 3207 (QL) (Gen. Div.), the accused killed his friend unintentionally when he carelessly handled a gun, unaware that it was loaded. He was convicted of unlawful act manslaughter but in the circumstances received a suspended sentence and 200 hours of community service.

82As I indicated at the outset, I believe that there will unavoidably be a case in which a four-year minimum sentence for this offence will be grossly disproportionate. Since the inflationary effect of the mandatory floor is likely to increase all penalties for this offence, there will arguably be fewer such cases for which four years will be grossly disproportionate and therefore unconstitutional. Nonetheless, in light of the variety of conduct captured by this prohibition, I believe it likely that there will continue to be some. I see little purpose in attempting to tailor a factual scenario that would illustrate this point of gross disproportionality. It could only be done by injecting a high degree of specificity to the hypothetical, which stretches the use of that jurisprudential technique beyond the purpose for which it was originally designed.

83In general terms, I believe that gross disproportionality is likely to manifest itself, for example, in the context of spousal abuse, as suggested by Professor T. L. Quigley, of the University of Saskatchewan, who testified before the Standing Senate Committee on Legal and Constitutional Affairs regarding the mandatory minimum penalties set out in Bill C-68, the Firearms Act (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 60, October 19, 1995, at p. 60:34). Professor Quigley suggested that in the case of an abused woman who finally reacts to her abuser, kills him and is charged with criminal negligence causing death or manslaughter, “[t]here may be compelling reasons why a four-year sentence is grossly disproportionate in those circumstances”. Indeed, the recent case of R. v. Ferguson, [1997] O.J. No. 2488 (QL) (Gen. Div.), concerned an accused who intentionally shot her abusive husband, while he was lying on a couch. Charged with murder, the accused was convicted of manslaughter and in the circumstances of the case, sentenced to a two-year-less-a-day conditional sentence. Because the offence occurred prior to the enactment of the Firearms Act, the judge ruled that the mandatory minimum sentence for manslaughter with a firearm,

provided in s. 236(a), did not apply (at para. 124).

84Additionally, the cases of R. v. D.E.C., [1995] B.C.J. No. 1074 (QL) (S.C.), and R. v. Chivers, [1988] N.W.T.R. 134 (S.C.), also involved battered women who were convicted of a firearms homicide and received a suspended sentence in conjunction with probation. While battered women’s syndrome was not sufficient to act as a complete defence to the charge, it was nonetheless considered a mitigating factor on sentencing.

85In other cases involving battered women’s syndrome and firearms homicides, courts have imposed relatively short periods of incarceration. For example, in R. v. Pettigrew (1990), 56 C.C.C. (3d) 390 (B.C.C.A.), the accused was convicted of unlawful act manslaughter, after accidentally shooting her husband while he slept, as she attempted to unload a gun. Although the accused was intoxicated at the time, the court recognized that she had a long history of abuse at the hands of her husband and in attempting to unload the gun, she was acting out of concern for her children’s and her own safety. She was sentenced to six months’ incarceration, followed by 12 months’ probation.

86Another type of situation in which the four-year mandatory minimum sentence under s. 220(a) could be found to violate s. 12 involves police officers or security guards who are required to carry firearms as a condition of their employment and who, in the course of their duty, negligently kill someone with their firearm. Of course, the law will hold such persons to a high standard of care in the use and handling of their firearms; however, it is nonetheless conceivable that circumstances could arise in which a four-year penitentiary term could constitute cruel and unusual punishment.

87For example, a police officer was convicted of criminal negligence causing death when he shot the victim during a confrontation between native protesters and the provincial police in September 1995: R. v. Deane, [1997] O.J. No. 3578 (QL) (Prov.). Fraser Prov. J. imposed a conditional sentence of two years less a day, to be served in the community, under the then recently enacted provision permitting this kind of disposition: s. 742.1 of the Criminal Code, added S.C. 1995, c. 22, s. 6. Fraser Prov. J. noted that had the offence occurred in September 1994, a conditional sentence would not have been available to the accused and, similarly, had the offence occurred in September 1996, subsequent to the Firearms Act amendments, the accused would have had to face a four-year mandatory minimum, precluding the use of a conditional sentence. Interestingly, Fraser Prov. J. queried “whether the legislators considered the fairness of having those accused such as policemen or guards, who have legitimate reasons for possessing a firearm, subject to the same statutory minimum as others who are not required for employment purposes to carry a gun” (para. 21).

88Having referred to these disparate scenarios arising from actual cases, I would not want to prejudge the determination of what would be a fit and constitutional sentence in any of these cases. The jurisprudence demonstrates that sentencing principles and practice reject pigeonhole approaches and favour a disposition that is sensitive to all the circumstances of every individual case.

89The approach of my colleague Gonthier J. has been to view some of the actual cases that have arisen as “marginal” cases not contemplated by the approach set out in Goltz, supra (see Gonthier J.’s reasons, at para. 32). My concern is that upholding the constitutionality of s. 220(a) on this basis makes the constitutionality of the provision dependent essentially on timing. It will be upheld until it is challenged in a “marginal” case, or at least one that was viewed as too marginal to constitute a reasonable hypothetical, but when that case arises, the section will be struck down under the first branch of the test in Smith and Goltz, for the benefit, presumably, of all subsequent cases. Under that approach, it is also unclear whether a person should be precluded from re-challenging the constitutionality of the section on the basis that his or her case, or a variant thereof, was considered as a reasonable hypothetical by an appellate court or by this Court, and said not to amount to a violation of s. 12. Of additional concern, the precedential value of the decision for all the types of cases that were simply not canvassed as reasonable hypotheticals is uncertain: see Gonthier J.’s reasons, at para. 55.

90These considerations were not acute in previous cases, such as Smith, supra, and Goltz, supra, since the types of offences considered there contained fewer variables, and gave rise to a lesser spread of sentencing options. Yet McIntyre J. in Smith wrote a forceful dissent, disagreeing with the use of reasonable hypotheticals in a constitutional challenge of a sentence under s. 12. McIntyre J. acknowledged the appropriateness of allowing parties to challenge laws on constitutional grounds where their own rights had not been directly infringed, in order to protect the rights of others who may not be in a position to challenge the legislation and whose rights might be affected, or “chilled”, by allowing unconstitutional legislation to remain unchallenged (at pp. 1084-85). However, McIntyre J. in Smith would not have allowed parties to invoke the rights of hypothetical third parties to support their challenge where the impugned law “does not prohibit any individual from engaging in a constitutionally protected activity” (p. 1085).

III. Conclusion

91In Smith, where a sentence of eight years had been conceded as fit for the appellant, this Court found that the mandatory minimum sentence of seven years, provided in s. 5(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1, did breach s. 12 on a reasonable hypothetical basis. Subsequently, the appellant was re-sentenced in the British Columbia Court of Appeal to six years, since the original sentence, while considered fit at the time, had nonetheless been influenced by “an atmosphere created by the minimum provision”: R. v. Saulnier (1987), 21 B.C.L.R. (2d) 232, at p. 244, per Seaton J.A.

92In the present case, the trial judge expressed the view that a fit sentence would be three years’ imprisonment. Not only do I agree that, in the circumstances, four years is not grossly disproportionate, but even if the provision were to be struck down, on a strict application of Smith and Goltz, because it is likely to be grossly disproportionate in some completely different case in the future, I do not believe that it would be appropriate to reduce the sentence. Parliament is entitled to dictate the range of applicable sentences for any offence, subject only to constitutional restraints, in this case the restraint imposed by s. 12 of the Charter. I believe that courts must give effect to Parliament’s direction that a threshold be applied as the minimum penalty for the offence, save in cases where such penalty is grossly disproportionate punishment for the particular

offender.

93In the case of some offences, it is possible for the courts to decide once and for all, with adequate certainty, whether, and if so when, the mandatory minimum will not be constitutionally acceptable. This was so in some of the previous decisions of this Court. I do not believe that this is one of these cases. In my view, it would be prejudicial to the interest of the hypothetical accused who will wish to demonstrate that four years’ imprisonment would be grossly unjust if imposed on him or her, to no jurisprudential benefit, in the form of certainty or otherwise, if we were simply to uphold the provision for the reasons articulated by my colleague.

94In cases of manslaughter involving the use of a firearm and arising from criminal negligence causing death, I believe that the better approach is to read the mandatory minimum as applicable in all cases save those in which it would be unconstitutional to do so. In a sense, rather than embarking on a search for the fit sentence, the sentencing judge would begin by applying the mandatory minimum unless he or she was persuaded that the minimum was grossly disproportionate to the particular circumstances of the case. This approach is, in my view, more consistent with Parliament’s desire to see an increase in the rate and length of imprisonment for this type of offence, while giving effect to Parliament’s obligation to operate within the framework

set out by the Constitution.

95For these reasons I would dismiss the appeal.