Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING Respondent
- and -
KERWIN SONNY Applicant
COUNSEL: Bryan Guertin, for the Respondent Crown Allan Lobel and Neill Fitzmaurice, for Mr. Sonny
HEARD: December 8, 2025, and January 21, 2026
BEFORE: M. FORESTELL J.
Ruling on Constitutional Challenge to s. 103(2)(a) of the Criminal Code
1On March 20, 2025, the Applicant, Kerwin Sonny, was convicted of importing three restricted firearms, three prohibited overcapacity magazines, and ammunition into Canada from the United States, contrary to s. 103(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46. He is subject to the mandatory minimum sentence of three years’ imprisonment, pursuant to s. 103(2)(a) of the Criminal Code.
2The Applicant brings this application for a declaration that s. 103(2)(a) of the Criminal Code is unconstitutional and of no force and effect under s. 52(1) of the Canadian Charter of Rights and Freedoms, (the “Charter”). The applicant submits that the section violates s. 12 of the Charter as it constitutes cruel and unusual punishment and that it cannot be saved under s. 1 of the Charter.
3The Applicant concedes that the three-year minimum sentence is constitutionally valid as it applies to him. He submits that the mandatory minimum is grossly disproportionate when applied to reasonably foreseeable scenarios.
4On January 21, 2026, I provided a ‘bottom-line ruling’ that the mandatory minimum sentence in s. 103(2)(a) was not grossly disproportionate when applied to reasonably foreseeable scenarios and that the section did not violate s. 12. I dismissed the application with reasons to follow. These are those reasons.
The Law and Analysis
Framework
5Section 103 of the Criminal Code reads:
103 (1) Every person commits an offence who imports or exports
(a) a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, a firearm part or any prohibited ammunition, or
(b) any component or part, other than a firearm part, designed exclusively for use in the manufacture of or assembly into an automatic firearm,
knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under an Act of Parliament.
(2) Every person who commits an offence under subsection (1) when the object in question is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited device, a firearm part or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of
(a) in the case of a first offence, three years; and
(b) in the case of a second or subsequent offence, five years.
(2.1) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.
6Section 12 of the Charter reads:
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
7For a sentence to be cruel and unusual it must be “grossly disproportionate to the punishment that is appropriate having regard to the nature of the offence and the circumstances of the offender”. (See R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at para. 56.)
8To assess whether a minimum sentence is grossly disproportionate, the Court must engage in a two-stage analysis: At the first stage, the court determines the fit and appropriate sentence and at the second stage, the Court assesses whether the minimum sentence is grossly disproportionate. (See R. v. Nur, 2015 5 SCC 15, paras. 40-41.)
9Even where, as in this case, the mandatory minimum sentence is not excessive or unfit for the applicant, the court must consider whether the sentence would be grossly disproportionate for other hypothetical offenders. As the Supreme Court explained in Nur, reasonably foreseeable scenarios must be considered in the analysis to avoid the continued application of an unconstitutional mandatory minimum. (Nur, at para.51.)
10Reasonably foreseeable scenarios or hypotheticals may, ideally, be taken from reported cases where there can be no dispute that the hypothetical is reasonable and is not “far-fetched”. (Nur, at paras. 73-74.)
11Where the court concludes that a mandatory minimum sentence is grossly disproportionate and therefore violates s. 12 of the Charter, the court must determine whether the provision is justified under s. 1 of the Charter.
Reasonably Foreseeable Scenarios
12This application posits three hypothetical offenders. The first is grounded in the case of R. v. LeFrancois, 2018 QCCQ 553. In that case, the offender was a gun collector who, over a period of 18 months, smuggled prohibited high-capacity magazines and prohibited handgun barrels from the United States into Canada with the intention of manufacturing handguns from the parts. The offender was a licensed gun owner and collector of firearms. He was described as an otherwise ‘responsible firearms owner’. He did not import the firearm parts for the purpose of selling them or using them to commit crimes. He was a 41-year-old first offender with a long employment history.
13The second hypothetical offender is a slight variation on LeFrancois. This offender is a firearms collector with a similar background to Mr. LaFrancois, who imported a firearm part on only one occasion and was caught before he could construct a firearm.
14The third hypothetical is an offender who lives in the United States and brings an illegal firearm into Canada to go hunting with his brother. He does not intend to sell the firearm, or to use the firearm for criminal acts. This scenario is based on a scenario relied upon in R. v. Hussain, 2015 ONSC 7115 in finding that the mandatory minimum for weapons trafficking as set out in s. 99(2) of the Criminal Code, violated s. 12 of the Charter.
15It is not in dispute in this case that the scenarios proffered by the applicant are reasonable ones.
Stage One: The Fit and Appropriate Sentence
General Principles
16The determination of a fit and appropriate sentence for the offenders in each of the scenarios requires a consideration of the gravity of the offence and the degree of responsibility of the offender. The exercise requires a consideration of the relevant sentencing objectives and aggravating and mitigating factors related to the offence and the offender.
Hypothetical #1: Mr. LeFrancois
17In 2018 in Quebec, Mr. LeFrancois was sentenced to one year in jail by the sentencing judge who declared the mandatory minimum to be unconstitutional. This sentence was upheld by the Quebec Court of Appeal. The maximum penalty for importing in 2018 was 10 years. It was subsequently increased to 14 years.
18In addition to the increase in the maximum penalty, the sentences imposed for importing firearms have trended upwards since 2018. In Ontario, sentences below four years are rare. The usual range of sentence for importing firearms is four to 11 years’ imprisonment. The only reported three-year sentence was imposed in 2012 on a 26-year-old first offender who attempted to smuggle two handguns into Canada. (See: R. v. Burnett, [2012] O.J. No. 5706.)
19Proportionality is the touchstone of sentencing. A sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender.
20As the Supreme Court stated in R. v. Hills, “The “gravity of the offence” refers to the seriousness of the offence in a general sense and is reflected in the potential penalty imposed by Parliament and in any specific features of the commission of the crime. (See: R. v. Hills, 2023 SCC; 2 R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 90.) The gravity of the offence should be measured by taking into account the consequences of the offender’s actions on victims’ and public safety, and the physical and psychological harms that flowed from the offence.”
21The offence of firearm importing is extremely serious. The provision creating the offence requires that the offender not only know that they are importing the item but also that they are not authorized to do so. The section does not apply to persons who make an innocent mistake or are simply careless.
22The intentional importation of firearms attracts significant prison sentences because of the gravity of the harm to the community. The illegal importation of firearms is the foundation for the gun violence that plagues our community. Gun violence impacts the immediate victims who are killed or wounded by guns, and it also impacts our community as a whole because of the loss of a sense of safety and security.
23The objectives of deterrence and denunciation are paramount in sentencing for firearms offences. The sentencing judge in LeFrancois found that there was a low risk of reoffence for this offender and specific deterrence was less important. In considering general deterrence, he identified gun collectors, gunsmiths and machinists as the target groups to be deterred. Justice Marchand and the Quebec Court of Appeal concluded that this group of otherwise law-abiding citizens would likely be deterred by the prospect of any length of custodial sentence.
24I accept and defer to the assessment of the sentencing judge in LeFrancois with respect to specific deterrence. I depart from the analysis of Justice Marchand in the assessment of the gravity of the offence and the objectives of denunciation and general deterrence.
25Justice Marchand described the consequences of the offences as “serious but limited”. The evidence in LeFrancois included expert evidence that criminal organizations use licensed gun owners to smuggle firearms and that guns have an almost unlimited life expectancy, making them liable to fall into the possession of criminals. Ghost guns, created from smuggled parts, are sought after by organized crime because they cannot be traced. I find that the consequences of the offence are extremely serious. The danger is not immediate, but it cannot be described as ‘limited’.
26With respect to general deterrence, gun owners and collectors are well-informed about firearms, their life expectancy and the dangers posed by them. Licensed gun owners and collectors cannot, in my view, be assumed to be ‘likely deterred’ by even a short period of incarceration. Mr. LeFrancois’ status as a gun owner and collector is not mitigating but elevates his moral blameworthiness.
27The gravity of the offence is significant in the case of Mr. LeFrancois. The moral blameworthiness of the offender is also high.
28Mr. LeFrancois repeatedly imported handgun parts over an 18-month period. He took steps to use the items to manufacture prohibited firearms. He had no intention of using the firearms for criminal purposes or selling them. However, in addition to at times providing the tools for violence through illegal trafficking, illegal importation prevents effective tracking and regulation of the firearms that may be smuggled for non-criminal purposes but are subsequently stolen or lost. Firearms have a long life and the fact that a firearm may initially be imported for a non-criminal purpose provides no assurance that it will never be used for such a purpose.
29The circumstances of Mr. LeFrancois and the circumstances of the offence make a sentence of 2.5 years appropriate for Mr. LeFrancois.
Hypothetical #2: Variation on LeFrancois
30An offender like Mr. LeFrancois who is a licensed gun owner, with no criminal record, and who does not intend to use the firearm part for crime but who commits only one offence, would receive a lower sentence than Mr. LeFrancois. The conduct of Mr. LeFrancois in repeatedly offending over a period of time was aggravating.
31While the second hypothetical offender is a first offender who committed only one offence, hypotheticals must constitute a reasonable construct. They cannot create the most sympathetic offender or remote and unrealistic scenarios. (Hills, at para 91; Nur, at para. 75; Hillbach, at para. 89.)
32This second hypothetical offender, like Mr. LeFrancois, must reasonably be well-informed as a gun collector. They must be assumed to have known the dangers created by importation of gun parts. The dangers are profound and enduring.
33In Burnett, the young first offender caught importing two handguns, received a sentence of three years. There were mitigating factors in Burnett. Mr. Burnett was young; he had completed university; and he worked while subject to strict bail conditions. He had grown up without a father figure. The precise purpose for the importation of the guns was not known, but the sentencing judge inferred that it was for a commercial purpose.
34In the hypothetical scenario, the offender is not importing firearms, but rather firearm parts. I do not view this as a factor that significantly distinguishes it from Burnett. The only purpose of a firearm part is to manufacture or alter a firearm. The offence is equally grave. The resulting firearm poses a profound danger to society. In my view, a sentence of 26 months would be appropriate.
Hypothetical #3: Smuggler for Sport
35The ‘smuggler for sport’ scenario would merit a sentence of 2.5 years. This hypothetical offender would have chosen to flaunt Canadian law for sport. He would have imported the weapon with the intention of using it. The use of any firearm, even for hunting, poses a danger to others. Laws and regulations exist to mitigate the risk in the case of lawful gun owners and hunters but the offender in this hypothetical, through his actions in smuggling the gun over the border, has circumvented the laws and regulations that safeguard the community. It would be mitigating that the offender did not intend to have the firearm remain in Canada. However, I am satisfied that a penitentiary sentence of 2.5 years would nevertheless be required to advance the objectives of specific and general deterrence and denunciation.
Is the Mandatory Minimum Sentence ‘Grossly Disproportionate for the Hypothetical Offenders?
General Principles
36To violate s. 12 of the Charter, the difference between the otherwise fit and appropriate sentence and the mandatory minimum sentence must be grossly disproportionate.
37The test of gross disproportionality requires that the prescribed punishment be more than merely excessive. (See R. v. Smith, 1987 64 (SCC).)
38The punishment must be so excessive that it is contrary to human dignity. (See R. v. Hills, at paras. 35-36; R. v. Bissonnette, 2022 SCC 23, at para. 60.)
39In Hills, at para. 109, the Court said: “In using phrases such as ‘so excessive as to outrage standards of decency’, ‘abhorrent or intolerable’ to society and ‘shock the conscience’ of Canadians, this Court has repeatedly emphasized that gross disproportionality is a high bar.” [citations omitted]
40The Court described the application of the ‘gross disproportionality’ test in Hills, at para 47:
It is not therefore the existence of some disproportion which will offend the grossly disproportionate requirement of s. 12. Stated otherwise, the analysis of the grossly disproportionate standard poses the following question: is the difference between the fit sentence and the mandatory minimum sentence so grossly disproportionate that it violates human dignity such that it amounts to cruel and unusual punishment? According to well‑established jurisprudence, the challenged penalty may be unfit, excessive and disproportionate, but it only crosses the constitutional line when it becomes grossly disproportionate. This question raises the common challenge of distinguishing the gradations and demarcations between related legal standards and reaching a conclusion about which legal standard is met. While it is frequently difficult to gauge questions of degree or to measure when something that is otherwise permitted has become grossly disproportionate, many legal standards require just this type of analysis. Whether under s. 12 or s. 7 of the Charter, there will be a continuum between exact fit and gross disproportion, and a judge not only has the authority to make such a determination, but is recognized as being well placed to do so: ‘This is the sort of inquiry judges have consistently conducted in Charter review’ (Nur, at para. 60).
41There are three crucial components to be assessed when considering the validity of a mandatory minimum sentence: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives (Hills, at para. 122).
1. The scope and reach of the offence
42The scope and reach of the offence focuses on the range of conduct captured by the offence and the range of culpability of possible offenders. Offences that cast a ‘wide net’ are more likely to be found to violate s. 12 of the Charter. (Smith, Nur, Hills, Lloyd, Bertrand, Marchand.)
43Consideration of the scope of the offence involves an examination of the actus reus, including the range of harm captured. It also involves consideration of the mens rea of the offence to determine the range of moral blameworthiness.
2. The effects of the penalty on the offender
44Assessment of the effects of the penalty requires an inquiry into the effects on the reasonably foreseeable offender. This includes a consideration of the impact of a punishment on particular offenders such as offenders in law enforcement, those with disabilities, or persons whose experience of imprisonment is harsher because of systemic racism (Hills, at para. 135). In assessing this factor, the court must not simply consider the length of the sentence but also, for example, conditions of imprisonment as compared to conditions while serving a conditional sentence.
3. The penalty, including the balance struck by its objectives
45As set out in Hills, at para. 138:
In relation to the penalty imposed under the mandatory minimum, Parliament sets the length of the minimum sentence based on its sentencing objectives. In turn, when assessing gross disproportion, courts assess the severity of the punishment mandated by Parliament to determine whether and to what extent the minimum sentence goes beyond what is necessary to achieve Parliament’s sentencing objectives relevant to the offence while ‘having regard to the legitimate purposes of punishment and the adequacy of possible alternatives’. [Citation omitted]
46All sentencing objectives must be considered in assessing the objectives of the mandatory minimum, including specific and general deterrence, denunciation and rehabilitation. Parliament is entitled to prioritize some objectives over others within limits (Hills, at para. 140).
47Denunciation plays a significant role in assessing the objectives of Parliament in setting a mandatory minimum. Where the consequences of the offence offend society’s “basic code of values”, denunciatory mandatory minimum sentences have attracted deference. (See Morrissey, at para. 47; Hills, at para. 139.)
48However, if a penalty is so excessive that it fails to allow for rehabilitation, it will be a violation of s. 12 of the Charter, as it will be incompatible with human dignity (Bissonnette, at para. 88).
Application of the test to the Hypotheticals in this Case
49The scope and reach of s. 103 of the Criminal Code is not unduly broad. The mens rea for the offence requires that the offender must intend to illegally smuggle the firearm or firearm part. The section does not capture carelessness or regulatory missteps. The harm occasioned by the conduct of Mr. LeFrancois was not immediate, but the risk that his actions created was a risk of serious future harm. The introduction of untraceable firearms parts into the community creates a significant danger to public safety.
50The offender in scenario #2 who smuggles only one firearm part, like Mr. LeFrancois, had to have deliberately chosen to illegally import a firearms part. He creates the same danger, albeit on a smaller scale.
51The smuggler for sport, it is argued, creates little danger to the public. I disagree. The offender in this scenario chose to smuggle a dangerous illegal firearm into Canada for the purpose of his own recreation. He was aware of the law and chose to attempt to evade it. The presence of an operative firearm is inherently dangerous.
52The effect of the penalty on all three offenders is somewhat significant. They would serve six or ten additional months in custody.
53The penalty and the objective of the mandatory minimum, however, weigh in favour of the constitutionality of the mandatory minimum. The section has the objective of strongly denouncing and deterring the illegal importation of firearms. The paramountcy of deterrence and denunciation in sentencing for firearms offences is well-established.
54As the Supreme Court held in Hillbach, “Parliament chose to impose the strong moral condemnation that a substantial prison sentence signals, which is reasonable given the offenders’ choice to put public safety at risk offends basic moral values.” (Hillbach, at para. 107.)
55As in Hillbach, the actions of an offender who illegally imports firearms parts puts the public at risk and offends basic moral values.
56The disparity of six to ten months between the sentences in the hypotheticals and the mandatory minimum sentence, when weighed in the context of the penalty and objectives is not grossly disproportionate. It is not so excessive as to ‘outrage standards of decency’, or ‘shock the conscience’ of Canadians.
Conclusion
57The application is dismissed. The mandatory minimum sentence in s. 103(2) of the Criminal Code is constitutional.
M. Forestell J.
Released: March 5, 2026
CITATION: R. v. Sonny, 2026 ONSC 1292
COURT FILE NO.: CR-20-50000395-0000
DATE: 20260305
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
KERWIN SONNY
Ruling on Constitutional Challenge to s.103(2)(a) of the Criminal Code
M. Forestell J.
Released: March 5, 2026