Recent Developments in Firearms Sentencing

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In November 2013, the Ontario Court of Appeal released a number of judgments that have the potential to drastically change the sentencing law in relation to convictions for possession of a loaded prohibited firearm (section 95 of the Criminal Code).

The Offence

Section 95 of the Code criminalizes the unauthorized possession of a restricted or prohibited firearm that is either (a) loaded, or (b) not loaded, but possessed along with readily accessible ammunition that can be fired by that gun.

Prior to November 2013, individuals tried by indictment and convicted of this offence in Ontario were automatically liable to a minimum sentence of at least three years.  In those cases the judge was required by law to impose a sentence of at least three years for a first conviction and five years for each subsequent conviction for this offence.

Needless to say, this law imposed a significant limitation on the judge’s ability to craft a suitable sentence based on the particular circumstances of the person convicted when the prosecutor chose to proceed by indictment.

Changes to the Case Law

However, in November 2013, the Ontario Court of Appeal released three cases: R. v. Nur, R. v. Smickle, and R. v. Charles.  In these cases the Court of Appeal concluded that in some circumstances, the mandatory three and five-year sentences for a conviction under section 95 could constitute a cruel and unusual punishment.  For this reason, the Court declared that the three and five-year mandatory sentences violated the Charter of Rights and Freedoms (“Charter”), and struck down the part of the law that required judges to impose them.

The effect of these three cases is that, courts are no longer required to impose minimum sentences when individuals are convicted of possessing a loaded restricted or prohibited firearm, contrary to section 95 of the Code.

Practical Effect on Sentencing

It is important to understand that even though judges in Ontario are no longer required to impose sentences of at least three years for this offence (or five years in the case of a second or subsequent conviction), this does not mean that judges are likely to impose much lighter sentences than they otherwise would have.

In fact, the Court of Appeal’s comments suggest that those convicted of possession of a loaded prohibited or restricted firearm will continue to receive significant sentences.

In R. v. Nur, Mr. Nur fled police after being approached outside a community centre in the Yonge and Finch area.  He was caught and arrested.  During the chase, the arresting officer saw Nur throw away an object that was later found to be a loaded semi-automatic handgun with an extended magazine.  The Court of Appeal stated that a three year sentence would not have been unreasonable in this case even if there was no mandatory minimum sentence.  The Court also stated that the circumstances called for a significant jail term.

Additionally, in January 2014, the Court of Appeal released a follow-up decision in the Smickle case.  This decision dealt with the appropriate sentence for Mr. Smickle.  In that case, the Court of Appeal made some general comments in relation to sentencing for this offence.  The court indicated that offences under section 95 should generally result in a penitentiary term (that is, two years or more), and even in the case of less serious conduct the sentence should be at or near the maximum “reformatory sentence” of two years less a day.

The take away from the Court of Appeal’s comments is that gun crime will still be treated seriously.  Even though the Court struck down the minimum sentences for section 95, convictions under this offence are still likely to be treated seriously and result in significant sentences.

Going Forward

While the Ontario Court of Appeal has declared that the minimum sentences for section 95 are unconstitutional, the issue is not settled.  The Crown has appealed R. v. Nur to the Supreme Court of Canada.  Depending on the outcome of the case at the Supreme Court, we may see the return of minimum sentences in relation to section 95.  However, for now, individuals convicted under section 95 in Ontario will not be subject to a minimum sentence.

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