Read CCLA's factum at the Court of Appeal - Canadian Civil ...

COURT OF APPEAL FOR ONTARIO 

Court File No.: C54701 & C55082 

BETWEEN: 

HER MAJESTY THE QUEEN 

- and - 

Respondent 

HUSSEIN JAMA NUR 

Appellant 

BETWEEN: 

- and - 


- and - 

LEROY SMICKLE 

Appellant 

Respondent 

FACTUM OF THE INTERVENER, 

CANADIAN CIVIL LIBERTIES ASSOCIATION (THE "CCLA") 

November 29, 2012 

FASKEN MARTINEAU DuMOULIN LLP 

Banisters and Solicitors 

333 Bay Street, Suite 2400 

Bay Adelaide Centre, Box 20 

Toronto, ON M5H 2T6 

Paul F. Monahan (LSUC: 27430K) 

Tel: 416 865 4425 

Kimberly Potter (LSUC: 60557D) 

Tel: 416 865 4544 

Fax: 416 364 7813 

Lawyers for the Intervener 

Canadian Civil Liberties Association 

DM TOR/900350.00012/5939634.10

TO: 

DERSTINE PENMAN 

559 College Street 

Suite 302 

Toronto, Ontario 

M6G 1A9 

Dirk Derstine 

Mariya Yakusheva 

Tel: 416 304 1414 

Fax: 416 304 1345 

Lawyers for Hussein Nur 

AND TO: RUSONIK, O'CONNOR, ROBBINS, ROSS, GORHAM & ANGELINI, LLP 

36 Lombard Street 

Suite 100 


M5C 2X3 

Mark C. Halfyard 

Jeff Hershb erg 

Tel: 416 598 1811 

Fax: 416 598 3384 

Lawyers for Leroy Smickle 

AND TO: ONTARIO COURT OF APPEAL 

Clerk's Office 

Osgoode Hall 

130 Queen Street West 


M5H 2N5 

AND TO: CROWN ATTORNEY'S OFFICE 

Crown Law Office Criminal 

720 Bay Street, 10 th Floor 


M7A 2N5 

Riun Shandler 

Andrea Baiasu 

Tel: 416 326 2353 

Fax: 416 326 4656 

Lawyers for the Attorney General for Ontario 

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2 

AND TO: DEPARTMENT OF JUSTICE CANADA 

Ontario Regional Office 

First Canadian Place 

130 King Street West 

Suite 3400, Box 36 


M5X 1K6 

Nancy Dennison 

Tel: 416 956 8032 

Moiz Rahman 

Tel: 416 952 6214 

Fax: 416 973 4328 

Lawyers for the Attorney General of Canada 

AND TO: AFRICAN CANADIAN LEGAL CLINIC 

18 King Street East 

Suite 901 

Toronto, ON M5C 1C4 

Faisal Mirza 

Virginia Nelder 

Tel: 416-214-4747 

Fax: 416-214-4748 

Lawyers for the African Canadian Legal Clinic 

BARNES SAMMON LLP 

200 Elgin Street, 

Suite 400 

Ottawa, Ontario 

K2P 1L5 

Bruce F. Simpson 

Tel: 613 594 8000 

Fax: 613 235 7578 

Lawyer for the John Howard Society 

DM TOR/900350.00012/5939634.10

Court File No.: C54701 & C55082 

BETWEEN: 

COURT OF APPEAL FOR ONTARIO 


- and - 

HUSSEIN JAMA NUR 

Respondent 

Appellant 

- and - 

BETWEEN: 


- and - 

LEROY SMICKLE 

Appellant 

Respondent 

FACTUM OF THE INTERVENER, 

CANADIAN CIVIL LIBERTIES ASSOCIATION (THE "CCLA") 

PART I - OVERVIEW 

1. Gun violence is a scourge on our society. In R v. Danvers,' this court held that 

"gun related crimes" must be addressed by our courts in the strongest possible terms. In R v. 

Brown, 2 this court held that the "use of guns in public places" cries out for lengthy sentences. 

There may well be cases where an offender convicted of an offence under s. 95 of the Criminal 

Code would be deserving of a lengthy prison term. However, the question before this court is 

whether there are reasonable hypothetical cases in which a three-year mandatory minimum 

1 (2005), 199 C.C.C. (3d) 490 (Ont CA), [2005] O.J. No. 3532 (CA) at para. 78. 

2 2009 ONCA 563 at para. 33, [2009] O.J. No. 2908 (CA). 

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sentence would be grossly disproportionate. The CCLA submits that there are such reasonable 

hypotheticals, which ultimately render s. 95(2)(a)(i) unconstitutional. 

2. A first-time offender can be convicted of an offence under s. 95 without 

committing a "gun related crime", and, in fact, without "using" a gun at all, let alone in a "public 

place." The CCLA submits that in such a situation (among potentially others), the three-year 

minimum sentence mandated by s. 95(2)(a)(i) is grossly disproportionate and constitutes cruel 

and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms (the 

"Charter").3 Moreover, the law cannot be saved by s. 1 of the Charter. As such, the appropriate 

remedy is to strike down s. 95(2)(a)(i) under s. 52 of the Constitution Act, 1982. 

3. , The CCLA submits that Mr. Justice Code erred in R v. Nur in relying on the 

reasonable exercise of prosecutorial discretion to find that s. 95(2)(a)(i) does not violate s. 12 of 

the Charter. In Nur, Code J. reviewed a number of hypotheticals that he stated may well give rise 

to cruel and unusual punishment if the Crown proceeded by indictment. Code J. ultimately 

rejected these reasonable hypotheticals, as he considered that the Crown would elect to proceed 

summarily in all of these cases, and that it was "far-fetched or only marginally imaginable" that 

the Crown would act otherwise. 4 

4. However, it was not long before a fact scenario similar to the first hypothetical 

Code J. considered involving an offender carrying a loaded gun to show off and post pictures 

online actually happened, and the Crown elected to proceed by indictment. That case was R v. 

Smickle. Madam Justice Molloy held that the Crown's election to proceed by indictment was 

3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. 

4 2011 ONSC 4874 at para. 110, [2011] O.J. No. 3878 (Sup Ct J). 

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made reasonably and in good faith. 5 She nevertheless found, we submit correctly, that the 

mandatory minimum would be grossly disproportionate based on the facts as she found them. 

PART II - FACTS 

5. The CCLA takes no position on any of the contested facts in these appeals; rather, 

we submit that s. 95(2)(a)(i) imposes a grossly disproportionate sentence in reasonable 

hypothetical cases in violation of s. 12 of the Charter, which cannot be justified under s. 1. 

PART III - ISSUES AND LAW 

The Analytical Framework under s. 12 of the Charter 

6. Section 12 of the Charter provides, "Everyone has the right not to be subjected to 

cruel and unusual punishment." The analytical framework for assessing the constitutionality of 

mandatory minimum sentences under s. 12 has been well developed by the Supreme Court in a 

number of cases, most notably: R v. Smith, 6 R v. Goltz, 7 R v. Morrisey, 8 and R v. Ferguson. 9 

McLachlin C.J.C. summarized the analytical framework for s. 12 in Ferguson, at para. 14, as 

follows: 

The test for whether a particular sentence constitutes cruel and unusual 

punishment is whether the sentence is grossly disproportionate: R. v. Smith, 

[1987] 1 S.C.R. 1045. As this Court has repeatedly held, to be considered grossly 

disproportionate, the sentence must be more than merely excessive. The sentence 

must be 'so excessive as to outrage standards of decency' and disproportionate to 

the extent that Canadians 'would find the punishment abhorrent or intolerable': R. 

v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84, at para. 4, citing Smith, at p. 1072, 

and Morrisey, at para. 26. 

5 2012 ONSC 602 at para. 87, 110 O.R. (3d) 25 (Sup Ct J). 

6 [1987] 1 S.C.R. 1045. 

7 [1991] 3 S.C.R. 485. 

s 2000 SCC 39, [2000] 2 S.C.R. 90. 

9 2008 SCC 6, [2008] 1 S.C.R. 96. 

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7. The s. 12 analysis proceeds in two stages. First, the court must consider whether 

the provision constitutes cruel and unusual punishment for the particular offence and offender 

being sentenced. Second, if the particular facts of the case do not result in gross 

disproportionality, then the court must consider whether the sentence would amount to cruel and 

unusual punishment in reasonable hypothetical circumstances. I° The CCLA's submissions focus 

solely on the second stage of this analysis. 

8. The reasonable hypothetical analysis has become more important since Ferguson, 

where the court held that a constitutional exemption is not available for a "small offender" 11 

subject to a mandatory minimum sentence. 12 If a mandatory minimum would result in a grossly 

disproportionate sentence for a small offender, the court held that the appropriate remedy is to 

strike down the law pursuant to s. 52 of the Constitution Act, 1982. 

The Hypothetical Scenarios Relied on by Code J. in Nur are "Reasonable Hypotheticals" 

9. The CCLA submits that the hypothetical scenarios relied on by Code J. constitute 

"reasonable hypotheticals." These hypotheticals are set out in Code J.'s judgment in Nur 13 and 

may be briefly summarized as follows: 

• A teenager shows off his father's firearm at a party and a picture is posted online; 

• A family member transports a firearm to the licensee; 

• A person purchases a ranch which contents include a firearm that the purchaser 

never registers; 14 

1° Goltz, supra note 7 at pp. 506-506. 

II The term "small offender" comes from Smith, supra note 6 at p. 1078. 

12 Ferguson, supra note 9 at para. 74. 

13 

Nur, supra note 4 at para. 96. 

14 These facts arose in R v. Snobelen, (25 April 2008), Toronto, S.D. Brown J. (Ont Ct J) [unreported]. 

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• An American tourist brings a firearm to Canada that is licensed in the US but not 

in Canada; and 

• A firearms collection is inherited by family members who never register the 

firearms. 

10. Reasonable hypotheticals must not be "far-fetched or marginally imaginable 

cases." 15 In constructing hypothetical cases, Gonthier J. for the majority in Morrisey held that 

"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." 16 He held that "the proper approach is to develop imaginable circumstances which 

could commonly arise with a degree of generality appropriate to the particular offence." 17 

11. The CCLA disagrees with the argument put forward by the Attorney Generals for 

Ontario and Canada that the hypothetical scenarios relied on by Code J. represent marginal cases 

of technical licensing violations to which the mandatory minimum sentence would not apply. 18 

The Attorney General for Ontario sets out two defences supposedly available to an accused 

charged with a s. 95 offence: mistake of fact in relation to the existence and terms of a license for 

possession, and absence of blameworthy state of mind despite de facto possession. 19 The CCLA 

submits that these defences are very narrow in application and could not reasonably be raised in 

any of the hypothetical scenarios considered in Nur. 

12. The mistake of fact defence was relied on in R v. MacDonald. 2° In that case, the 

accused was charged with a s. 95 offence after the police entered his Halifax apartment in 

response to a noise complaint and observed him carrying a loaded firearm. The case turned on a 

15 Goltz, supra note 7 at p. 506. 

16 Morrisey, supra note 8 at para. 33. 

17 Ibid. at para. 50. 

18 Factum of the Attorney General for Ontario at para. 96; Factum of the Attorney General for Canada at para. 58. 

19 Factum of the Attorney General for Ontario, ibid. 

20 2012 NSCA 50, [2012] N.S.J. No. 252 (CA), leave to appeal to SCC granted. 

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technical interpretation of s. 17 of the Firearms Act21 ; specifically, whether this provision only 

authorizes possession of a firearm at a dwelling-house that is recorded in the Canadian Firearms 

Registry, or whether possession is authorized at any dwelling-house. The defence argued that the 

accused was authorized to possess the firearm in his apartment in Halifax and not only at his 

home in Calgary where the firearm was registered. 

13. After a thorough exercise in statutory interpretation, the Nova Scotia Court of 

Appeal held that the accused was not authorized to possess the firearm in Halifax, but agreed 

with the defence that the accused should not be convicted of the offence because he honestly 

believed that his possession was authorized. The court was careful to limit the scope of this 

defence, however. First, the court distinguished between a mistake of law and a mistake of fact. 

The accused did not assert that he was unaware that he required authorization to possess the 

firearm, a mistake of law; rather, he erroneously believed that he was so authorized, a mistake of 

fact. 22 Second, the court held that an accused's belief that he is authorized to possess a firearm 

must be honestly held. 23 Finally, the court held that an accused must not be willfully blind with 

respect to whether he is authorized to possess the firearm. 24 

14. The CCLA submits that none of the reasonable hypotheticals raised in Nur give 

rise to a legitimate defence of mistake of fact. The court in MacDonald was clear that it was not 

in any way detracting from the well-known principle enshrined in s. 19 of the Criminal Code that 

ignorance of the law is not an excuse for committing an offence. 25 

21 S.C. 1995, c. 39. 

22 MacDonald, supra note 20 at para. 69. 



25 Ibid. at paras. 68-69. 

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15. Similarly, the second defence posited by the Attorney General for Ontario, the 

defence that there was no accompanying blameworthy intent, is very limited in scope. This 

defence was described by Doherty J.A. in R v. Chalk 26 as follows: 

There are cases where an individual has the requisite control and knowledge, but 

cannot be said to be in possession for the purpose of imposing criminal liability. 

These cases will include cases in which a person takes control of contraband 

exclusively for the purpose of immediately destroying the contraband or 

otherwise placing it permanently beyond that person's ability to exercise any 

control over the contraband. In such cases, the intention is solely to divest oneself 

of control rather than to possess. 27 [Emphasis added]. 

None of the reasonable hypothetical cases give rise to such a defence. 

16. Contrary to the assertion of the Attorney Generals of Ontario and Canada, the 

scenarios referenced by Code J. in Nur are not mere technical violations for which an accused 

could reasonably rely on the defence of mistake of fact or lack of blameworthy intent. The 

CCLA submits that these are reasonable hypotheticals that could give rise to a conviction under 

s. 95 of the Criminal Code, and so the three-year mandatory minimum sentence would apply. 

Other Reasonable Hypothetical Scenarios 

17. In addition to the reasonable hypothetical cases canvassed by Code J., the CCLA 

submits that there are many other reasonable hypothetical cases which could give rise to a 

conviction under s. 95 in a context where the three year sentence would be grossly 

disproportionate. These cases share the following general features: 

• The accused does not have a prior criminal record or has a criminal record that is 

insignificant; 

• The accused did not possess the firearm in a public place (i.e. the accused was in a 

car or at home); and 

• The accused did not possess the firearm for any criminal purpose. 

26 2007 ONCA 815, 88 O.R. (3d) 448 (CA). 


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18. There are a number of reported cases that share these characteristics. As will be 

set out in greater detail below, these hypotheticals would take on even more significance if any 

of the offenders in these cases were Aboriginal. 

• In R v. Bergaur-Free,28 the accused was found guilty of a single count of 

possession of a prohibited firearm with readily accessible ammunition contrary to 

s. 95(1) of the Criminal Code. A police officer pulled over the accused's vehicle 

and searched his trunk. The officer found a locked metal box with a firearm and 

ammunition inside. The accused, a trooper in the Canadian militia, was 21 years 

old, had no criminal record, and a very positive pre-sentence report. The Crown 

proceeded by indictment and the accused was sentenced to the mandatory 

minimum sentence, which at that time was one year. 

• In R v. A1i, 29 the accused was convicted of possession of a loaded prohibited 

firearm. The police conducted surveillance following an anonymous call from 

someone claiming to have seen the accused place what looked like a rifle in a car 

parked outside of a house. After the accused drove away in the car, the accused 

was apprehended, and the police found a loaded, sawed-off, 12-gauge shotgun 

beneath the driver's seat. The defence conceded that the accused had possession 

of the firearm, but the accused testified that he did not know that the firearm was 

in the car. The court held that the Crown proved beyond a reasonable doubt that 

the accused knew about the firearm and sentenced him to 14 months 

imprisonment. The court noted that the accused had a very supportive family, no 

criminal record, and had led an otherwise unblemished life. 

• In R v. Canepa,3° a case cited by Molloy J., police officers attended at the 

accused's apartment in response to a call about the smell of marijuana emanating 

from the apartment. The police were granted entry, and once inside they saw a 

small quantity of marijuana on a table and found a loaded firearm under the table. 

The accused pled guilty to one count of possession of an unauthorized firearm. 

The accused was 18 years old at the time of the offence and had no criminal 

record. He was given a conditional sentence. 

• In R v. Beaman, 31 the accused pled guilty to possessing a prohibited firearm with 

readily accessible ammunition and possession of marijuana following a police 

search of his property. The accused had a criminal record, but it didn't include 

any jail time in the last 20 years. The Crown proceeded summarily. The court 

accepted that the firearm charge was unrelated to the drug charge, and that the 

firearm, a semi-automatic pistol, was found incidental to the search for the drugs. 

The court held that the appropriate sentence for the firearms charge was 3 months. 

28 [2008] O.J. No. 2904 (Sup Ct J), rev'd on other grounds 2009 ONCA 610. 

29 2007 CarswellOnt 9671 (Sup Ct J); 2008 CarswellOnt 7764 (Sup Ct J), of 'd 2008 ONCA 741. 

3° 2011 ONSC 1406, [2011] O.J. No. 924 (Sup Ct J). 

31 2010 NBQB 103, 356 N.B.R. (2d) 385 (QB). 

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Although in many of these cases the Crown elected to proceed summarily, the Crown could have 

just as easily elected to proceed by indictment, as is set out in more detail below. In other words, 

just like in Smith, the "natural and probable consequence" of s. 95 would be to "catch individuals 

who could only be described as 'small offenders'". 32 

The Mandatory Minimum Sentence is Grossly Disproportionate in Reasonable 

Hypothetical Cases and on the Facts as Found by Molloy J. in Smickle 

19. The CCLA submits that Code J. erred in relying on prosecutorial discretion to 

find that the reasonable hypothetical cases would not give rise to a s. 12 violation, a point 

apparently conceded by the Attorney Generals for Ontario and Canada. 33 However, the CCLA 

submits that Code J. was correct in implying in obiter that the mandatory minimum sentence 

would be grossly disproportionate if the Crown proceeded by indictment in these cases. 34 

20. The CCLA submits that the facts as found by Molloy J. also result in a situation in 

which the three-year mandatory minimum would be a grossly disproportionate sentence. Molloy 

J. found that Mr. Smickle was alone in his cousin's apartment taking pictures for his Facebook 

page with a loaded handgun in one hand when the police entered the apartment. Mr. Smickle had 

no prior criminal record and a positive pre-sentence report. Molloy J. held that a one-year 

sentence was appropriate for Mr. Smickle's "single act of bad judgment and foolishness." 35 


33 Factum of the Attorney General for Ontario at paras. 106-108; Factum of the Attorney General for Canada at 

paras. 61-66. 

34 Code J. held, at para: 117: "If the Crown elects to proceed by indictment in a s. 95 case, based on incomplete 

knowledge of the facts, and a very different case later emerges at trial, a s. 12 Charter motion may well succeed 

at the sentencing stage of proceedings." He further held, at para. 118, "The first improvident Crown election, to 

proceed by indictment when the proper election was to proceed summarily, may well result in a successful s. 12 

Charter motion." 

35 Smickle, supra, note 5 at para. 81. 

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Code J. erred in relying on the reasonable exercise of prosecutorial discretion to find that s. 

95(2)(a)(1) does not violate s. 12 of the Charter 

21. Code J. erred in holding that the hypothetical cases he considered would not give 

rise to a s. 12 violation because they are all cases in which the Crown would reasonably elect to 

proceed summarily. In Smith, Lamer J. held that courts cannot rely on the proper use of 

prosecutorial discretion to save a law that would otherwise run afoul of s. 12 of the Charter: 

In my view the section cannot be salvaged by relying on the discretion of the 

prosecution not to apply the law in those cases where, in the opinion of 

the prosecution, its application would be a violation of the Charter. To do so 

would be to disregard totally s. 52 of the Constitution Act, 1982 which provides 

that any law which is inconsistent with the Constitution is of no force or 

effect to the extent of the inconsistency and the courts are duty bound to 

make that pronouncement, not to delegate the avoidance of a violation to the 

prosecution or to anyone else for that matter. 36 [Emphasis added]. 

22. The CCLA submits that Code J. erred in distinguishing the prosecutorial 

discretion at issue in Smith, i.e. the discretion "not to apply the law" (in other words, charge an 

accused with a lesser offence), from the prosecutorial discretion at issue in Nur, i.e. the 

discretion to proceed summarily or by indictment. He erroneously held that the former type of 

prosecutorial discretion is "an extraordinary discretion" that is not comparable with the latter. 37 

23. In fact, both types of discretion fall within the "core elements" of prosecutorial 

discretion. In Kreiger v. Law Society of Alberta, 38 the Supreme Court described these core 

elements as involving "the ultimate decisions as to whether a prosecution should be brought, 

continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial 

discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney 

36 Smith, supra note 6 at p. 1078. 

37 Nur, supra note 4 at para. 109. 

38 2002 SCC 65, [2002] 3 S.C.R. 372. 

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General's participation in it" 39 (emphasis in original). The CCLA submits that there is no 

principled distinction between the acts of discretion at issue in Smith and Nur; therefore, Code J. 

was bound by the holding in Smith that prosecutorial discretion is no answer to a s. 12 violation. 

Indeed, Molloy J. rejected any distinction between the two types of discretion in her s. 1 analysis 

in Smickle . 4° 

24. In any event, it is inappropriate to rely on the reasonable exercise of prosecutorial 

discretion to save a law that would otherwise be found unconstitutional. The Crown may make a 

particular election for any number of reasons. As Code J. himself observed, Crown elections to 

proceed summarily or by an indictment are usually made at an early stage of proceedings when 

the Crown is not necessarily in possession of all the facts. 41 This is exactly what happened in 

Smickle. Moreover, as the Supreme Court recognized in R v. T (l.), 42 not all cases will be dealt 

with in the same way. 43 As a result, the Crown could reasonably have elected to proceed by 

indictment in any of the above hypothetical cases with the result that the three-year mandatory 

minimum sentence would attach. This is especially so given that the Crown Policy Manual 

places significant constraints on the Crown's ability to proceed summarily in s. 95 cases. 44 

39 Ibid at para. 47. 

Smickle, supra note 5 at para. 110. 

41 Nur, supra note 4 at para. 117. 

42 [1992] 1 S.C.R. 749. 

43 The court in R. v. T.. (V.) at p. 760 cited R v. Poirer, [1989] M.J. No. 279 (Man. Prov. Ct.), with approval, in which 

Giesbrecht J. observed, at p. 11-12: "In the criminal law process prosecutorial discretion exists throughout the 

entire process . . . The people involved in the process . . . are not the same nor will they necessarily act in the 

same way in exercising the discretion they have. This may lead to a situation where one person is charged with 

an offence, while another in seemingly identical circumstances is not; one person is prosecuted by indictment 

another by summary conviction; one person is dealt with under one provision of a particular statute while another 

is dealt with under a different, perhaps harsher provision." [Emphasis added]. 

44 Nur, supra note 4 at para. 118; Code J. also erred in asserting, at para. 117, that "one unwise Crown election may 

end up invalidating Parliament's s. 95 sentencing scheme for all cases." If the constitutional validity of s. 

95(2)(a)(i) depends solely on the Crown's ill-advised decision to proceed by indictment in a particular case, the 

appropriate remedy would be granted under s. 24(1) of the Charter, which provides a remedy for 

unconstitutional government acts. The law would not be struck down under s. 52 of the Constitution Act, 1982, 

because the law itself is not the source of the Charter infringement (see Ferguson, supra note 9 at paras. 59-61). 

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25. Furthermore, reliance on the Crown's discretion to save a law from imposing a 

grossly disproportionate sentence is inappropriate in light of the open court principle and the 

general value of transparency in the legal system. Upholding a law that has the potential to be 

applied in such a way as to violate the Charter undermines our commitment to the rule of law. 

The Mandatory Minimum is Grossly Disproportionate in Reasonable Hypothetical Cases 

26. The CCLA submits that the mandatory minimum sentence would be grossly 

disproportionate in the above hypothetical cases. The Supreme Court in Smith identified the 

following factors to consider in assessing whether a sentence is grossly disproportionate: the 

gravity of the offence; the personal characteristics of the offender; the particular circumstances 

of the case; and the actual effect of the punishment on the offender. 45 Other factors to consider 

include: whether the punishment is necessary to achieve a valid penal purpose; whether it is 

founded on recognized sentencing principles; whether valid alternatives to the punishment 

imposed exist; and, to some extent, whether a comparison with punishments imposed for other 

crimes in the same jurisdiction reveals great disproportion. 46 The court must consider not only 

the duration of the sentence, but its nature and the conditions under which it is applied. 47 

27. With respect to the first factor, the Supreme Court has held that the gravity of the 

offence is a function of both the character of the offender's actions and the consequences of 

those actions. 48 In considering the character of the offender's actions, the court looks to the mens 

rea of the offence. 49 Section 95 requires the Crown to prove that an accused knowingly 


46 Ibid at p. 1074; Goltz, supra note 7 at p. 500. 

47 Smith, ibid. p. 1073. 

48 Morrisey, supra note 8 at para. 35; R v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3 at para. 80 

49 Latimer, ibid. at para. 82. 

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possessed a prohibited or restricted firearm that is either loaded or is accompanied by readily 

accessible ammunition. 50 In other words, the mens rea is simply knowledge of mere possession. 

28. This mens rea requirement is much less morally blameworthy than the mens rea 

requirement of other firearm offences for which mandatory minimum sentences have been 

upheld. For example, criminal negligence causing death involving a firearm (addressed in 

Morrisey) requires conduct which shows a wanton or reckless disregard for the life or safety of 

others. 51 Manslaughter involving a firearm (addressed in Ferguson) requires objective foresight 

of the risk of bodily harm that is more than trivial or transitory. 52 Section 95, by contrast, only 

requires that the offender knowingly possess a prohibited or restricted firearm that is loaded or is 

accompanied by readily accessible ammunition; the mens rea does not require that the accused 

know, or ought to know, that his conduct puts others at risk. The s. 95 fault requirement is even 

less morally blameworthy when the firearm is not loaded but is rather accompanied by "readily 

accessible ammunition." In R v. Khan, 53 Justice Then for the Ontario Superior Court interpreted 

"readily accessible ammunition" to include a situation where the firearm and ammunition were 

stored in different rooms in the same apartment. 54 

29. Perhaps more importantly, a three-year mandatory minimum sentence is grossly 

disproportionate to the consequences of the offender's actions in the reasonable hypothetical 

scenarios. The offenders in these scenarios did not commit any violent crime. They did not 

threaten anyone with a firearm. They did not even possess the firearm in public. The CCLA 

50 R v. Williams, 2009 ONCA 342, 95 O.R. (3d) 660 at para. 16. 


52 R v. Creighton, [1993] 3 S.C.R. 3 at pp. 44-45. 

53 (2007), 217 C.C.C. (3d) 209 (Ont Sup Ct J), [2007] O.J. No. 137 (Sup Ct J), aff'd on other grounds 2008 ONCA 

496. 


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submits that the potential risk to others is much attenuated when the firearm is not possessed in a 

public place and when the gun is not in fact loaded. 

3 0 . The (lack of) direct consequences of the offenders' actions in these cases stand in 

stark contrast to criminal negligence causing death involving a firearm and manslaughter 

involving a firearm, which by definition result in the most serious of consequences: death of the 

victim. They also stand in contrast to the consequences that arise when using a firearm in the 

commission of an indictable offence. In R v. Steele, 55 Fish J. for the Supreme Court held that the 

"use of a firearm in the commission of a crime exacerbates its terrorizing effects". 56 Again, the 

mere possession of a restricted or prohibited firearm that is loaded or is accompanied by readily 

accessible ammunition is enough to give rise to a conviction under s. 95 without virtually any 

attendant consequences. An offence under s. 95 is therefore much less grave than other offences 

for which mandatory minimum sentences have been upheld. 

3 1 . A consideration of penological goals and sentencing principles also leads to the 

conclusion that a three-year mandatory minimum sentence is grossly disproportionate in the 

above cases. The Supreme Court stated in Morrisey that Parliament can only take measures 

consistent with existing sentencing principles. 57 The fundamental principle of sentencing is 

proportionality. 58 Indeed, the appropriate consideration is not whether Parliament has a valid 

penal purpose, but rather whether the sentence is necessary to achieve a valid penal purpose. 

55 2007 SCC 36, [2007] 3 S.C.R. 3. 



58 Ibid. 

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Other sentencing principles include: separation, specific and general deterrence, retribution, 

rehabilitation, and restorative justice. 59 

32. The CCLA submits that Molloy J. was correct in holding that specific deterrence 

and rehabilitation were not served by a three-year mandatory minimum sentence in Smickle, and 

that this is also the case in the above reasonable hypothetical scenarios. The CCLA further 

submits that restorative justice is not served by a three-year mandatory minimum sentence that is 

disproportionate to the harm caused by the offender's conduct in the above scenarios. 

3 3 . With respect to retribution and denunciation, while gun crime may require a 

lengthy prison sentence to properly serve these principles, mere possession of a prohibited or 

restricted firearm that is loaded or is accompanied by readily accessible ammunition arguably 

does not. In R v. C.A.M., 60 the Supreme Court described these two principles as follows: 

Retribution requires that a judicial sentence properly reflect the moral 

blameworthiness of that particular offender. The objective of denunciation 

mandates that a sentence should also communicate society's condemnation 

of that particular offender's conduct. 61 [Emphasis in original]. 

34. The CCLA submits that a three-year mandatory minimum sentence is grossly 

disproportionate to the principles of retribution and denunciation in the reasonable hypothetical 

cases. Indeed, the court in C.A.M held that "retribution incorporates a principle of restraint; 

retribution requires the imposition of a just and appropriate punishment, and nothing more" 62 

(emphasis in original). 

35. The Attorney Generals for Ontario and Canada emphasize the need for general 

deterrence as a justification for the imposition of a three-year mandatory minimum sentence. 

59 Ibid. 

60 [1996] 1 S.C.R. 500. 



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However, general deterrence has little application in determining whether a mandatory minimum 

violates s. 12. As stated by Lamer J. in Smith: 

The other purposes which may be pursued by the imposition of punishment, in 

particular the deterrence of other potential offenders, are thus not relevant at this 

stage of the inquiry. . . If a grossly disproportionate sentence is "prescribed 

by law", then the purpose which it seeks to attain will fall to be assessed under 

s. 1. 63 [Emphasis added]. 

36. Although Gonthier J. for the majority in Morrisey held that the principle of 

general deterrence is in fact relevant to the consideration of whether a sentence violates s. 12, he 

acknowledged that "[g]eneral deterrence cannot, on its own, prevent a punishment from being 

cruel and unusual." 64 Indeed, as Molloy J. observed in Smickle: 

To take [general deterrence] to the extreme, a mandatory sentence of life 

imprisonment for shoplifting would no doubt act as a general deterrent, but 

it would shock the public conscience to impose such an onerous punishment, for 

example, on a young single mother with no criminal record who steals a 

loaf of bread from Walmart. 65 

37. In any event, there is little evidence to demonstrate that a three-year mandatory 

minimum sentence would be an effective deterrent. A paper by Professor Anthony N. Doob and 

Cheryl Marie Webster was before Code J. in Nur. They write in the paper, "There is no 

consistent and plausible evidence that harsher sentences deter crime." 66 Similarly, Professor Kent 

Roach notes, "There is little evidence to support the hope that mandatory penalties of 

imprisonment, which may not even be known by the general public, will serve as effective 

deterrents of crimes committed against vulnerable people." 67 



65 Smickle, supra note 5 at para. 83. 

66 Anthony N. Doob and Cheryl Marie Webster, "Sentencing Severity and Crime: Accepting the Null Hypothesis" 

(2003) 30 Crime and Justice 143 at p. 189. 

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

367 at 389-90; see also Julian V. Roberts, "Mandatory Minimum Sentences of Imprisonments: Exploring the 

Consequences for the Sentencing Process", (2001) 39 Osgoode Hall L.J. 305. 

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38. Finally, a comparison with punishments imposed for other crimes involving 

firearms reveals great disproportionality between s. 95 and the mandatory minimum sentence: 

• The mandatory minimum for using a firearm while committing or attempting to 

commit an indictable offence (such as aggravated assault) is one year for a first 

offence and three years for a second offence or subsequent offences (s. 85(3)); 

• There is no mandatory minimum for pointing a loaded or unloaded firearm at 

someone, or for possessing a firearm without a license (ss. 87(2) and 91(3)); 

• There is no mandatory minimum for a first offence of possessing a firearm 

knowing its possession is unauthorized. The mandatory minimum for a second 

offence is one year and the mandatory minimum for a third or subsequent offence 

is two years less a day (s. 92(3)); 

• The mandatory minimum for aggravated sexual assault using a firearm is four 

years (s. 273(2)(a.1)); and 

• There is a four year mandatory minimum for criminal negligence causing death 

where a firearm is used and manslaughter where a firearm is used (ss. 220(a) and 

236(a)). 

39. A consideration of the above factors demonstrates that in reasonable hypothetical 

cases, the mandatory minimum sentence is grossly disproportionate to the gravity of the offence, 

to penological goals and sentencing principles, and in comparison with potential sentences for 

other firearm offences. As in Smickle, the three-year mandatory minimum would result in a 

sentence that is at least 300 times the length of a fit sentence for these offenders. 

Reasonable Hypothetical Cases Involving Aboriginal Offenders 

40. The CCLA submits that the reasonable hypothetical scenarios would result in 

sentences that are all the more grossly disproportionate if Aboriginal offenders were involved. 

Out of recognition of the overrepresentation of Aboriginals in the prison system, s. 718.2(e) of 

the Criminal Code directs that "all available sanctions other than imprisonment that are 

reasonable in the circumstances should be considered for all offenders, with particular attention 

to the circumstances of aboriginal offenders" (emphasis added). 

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41. Recently in R v. Ipeelee, 68 the Supreme Court held that it is an error in law to 

emphasize the protection of the public at the expense of the rehabilitation of an Aboriginal 

offender in granting a long-term supervision order. The court reiterated its holding in R v. 

Gladue that s. 718.2(e) requires sentencing judges "to pay particular attention to the 

circumstances of Aboriginal offenders because those circumstances are unique and different 

from those of non-Aboriginal offenders." 69 In Gladue, the court held that s. 718.2(e) "suggests 

that there is something different about aboriginal offenders which may specifically make 

imprisonment a less appropriate or useful sanction." 70 In Gladue and again in Ippellee, the 

Supreme Court set out specific factors that a judge must consider when sentencing an Aboriginal 

offender. 71 

42. The CCLA submits that a three-year mandatory minimum sentence imposed 

without regard to the Gladue factors would "outrage standards of decency." 72 Indeed in R v. 

Bill, 73 cited by Arbour J. in her minority decision in Morrissey, the British Columbia Supreme 

Court relied on s. 718.2(e) in finding that a mandatory minimum sentence of four years for an 

Aboriginal offender convicted of manslaughter with a firearm violated s. 12 of the Charter. 

Conclusion on s. 12 of the Charter 

43. As in Smith, s. 95(2)(a)(i) imposes a grossly disproportionate sentence when 

examined in light of the wide net cast by s. 95(1); 74 "it is inevitable that, in some cases, a verdict 

68 2012 SCC 13, [2012] 1 S.C.R. 433. 

69 Ibid. at para. 59; R v. Gladue, [1999] 1 S.C.R. 688 at para. 37. 

70 Gladue, ibid. 

71 Gladue, ibid. at para. 66; Ipeelee, supra note 68 at para. 59. 

72 The phrase "outrage standards of decency" comes from R v. McDonald (1999), 40 O.R. (3d) 641 (CA) at para. 68. 

73 [1997] B.C.J. No. 3031 (SC), appeal against conviction allowed and new trial ordered [1999] B.C.J. No. 493 

(CA), constitutionality of sentencing provision not considered. 


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of guilt will lead to the imposition of a term of imprisonment which will be grossly 

disproportionate." 75 Although there may be cases in which a lengthy prison term is justified for 

an offender convicted of a s. 95 offence, there are also many cases in which a three-year 

mandatory minimum sentence would constitute cruel and unusual punishment. The only remedy 

available to the small offenders in these cases is to strike down the law. 

THE MANDATORY MINIMUM CANNOT BE JUSTIFIED UNDER S. 1 

44. The CCLA submits that Molloy J. was correct in finding that s. 95(2)(a)(i) cannot 

be saved under s. 1 of the Charter. Professor Hogg has stated: "I find it difficult to accept that 

the right not to be subjected to 'cruel and unusual punishment' could ever be justifiably limited. 

This may be an absolute right. Perhaps the only one." 76 

45. Section 95(2)(a)(i) does not minimally impair the s. 12 Charter right. As the 

reasonable hypothetical analysis has demonstrated, there has been insufficient effort by 

Parliament to tailor the mandatory minimum sentence to the different circumstances which could 

give rise to a conviction under s. 95. Moreover, the deleterious effects of the mandatory 

minimum outweigh the salutary effects. Molloy J. found that while "it is impossible to take issue 

with the broad objectives of the mandatory minimum sentence . . . there is no tangible evidence 

that imposing a mandatory minimum does anything to actually accomplish that objective" 77 

(emphasis added). 

75 Ibid. at p. 1078. 

76 Peter Hogg, Constitutional Law of Canada, 5 th ed. supp. (Carswell) at pp. 38-49. 

77 Smickle, supra note 5 at para. 120. 

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PART IV - ORDER REQUESTED 

46. For the above reasons, the CCLA requests that s. 95(2)(a)(i) of the Criminal Code 

be declared unconstitutional and of no force and effect in accordance with s. 52 of the 

Constitution Act, 1982. The CCLA does not seek costs and requests that no costs order be made 

against it. 

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 29th day of November 2012. 

Pi A14 

Paul F. Monahan 

Lawyer for the Intervener 

.7 - 

Kimberly Potter 

Lawyer for the Intervener 

FASKEN MARTINEAU DuMOULIN LLP 

Banisters and Solicitors 

333 Bay Street, Suite 2400 

Bay Adelaide Centre, Box 20 

Toronto, ON M5H 2T6 

Paul F. Monahan (LSUC: 27430K) 

Tel: 416 865 4425 

Kimberly Potter (LSUC: 60557D) 

Tel: 416 865 4544 

Fax: 416 364 7813 

Lawyers for the Intervener 

Canadian Civil Liberties Association 

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SCHEDULE A 

LIST OF AUTHORITIES 

1. R v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont CA), [2005] O.J. No. 3532 (CA). 

2. R v. Brown, 2009 ONCA 563, [2009] O.J. No. 2908 (CA). 

3. R v. Smith, [1987] 1 S.C.R. 1045. 

4. R v. Goltz, [1991] 3 S.C.R. 485. 

5. R v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90. 

6. R v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. 

7. R v. Snobelen, (25 April 2008), Toronto, S.D. Brown J. (Ont Ct J). 

8. R v. MacDonald, 2012 NSCA 50, [2012] N.S.J. No. 252 (CA). 

9. R v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448 (CA) 

10. R v. Bergaur-Free, [2008] O.J. No. 2904 (Sup Ct J). 

11. R v. Ali, 2007 CarswellOnt 9671 (Sup Ct J). 

12. R v. AU, 2008 CarswellOnt 7764 (Sup Ct J). 

13. R v. Canepa, 2011 ONSC 1406, [2011] O.J. No. 924 (Sup Ct J). 

14. R v. Beaman, 2010 NBQB 103, 356 N.B.R. (2d) 385 (QB). 

15. Kreiger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372. 

16. R v. T.(V), [1992] 1 S.C.R. 749. 

17. R v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3. 

18. R v. Williams, 2009 ONCA 342, 95 O.R. (3d) 660. 

19. R v. Creighton, [1993] S.C.R 3. 

20. R v. Khan (2007), 217 C.C.C. (3d) 209 (Ont Sup Ct J), [2007] O.J. No. 137 (Sup Ct J). 

21. R v. Steele, 2007 SCC 36, [2007] 3 S.C.R. 3. 

22. R v. C.A.M., [1996] 1 S.C.R. 500. 

23. Anthony N. Doob and Cheryl Marie Webster, "Sentencing Severity and Crime: 

Accepting the Null Hypothesis" (2003) 30 Crime and Justice 143 

24. Kent Roach, "Searching for Smith: the Constitutionality of Mandatory Sentences", 

(2001) 39 Osgoode Hall L.J. 367. 

25. Julian V. Roberts, "Mandatory Minimum Sentences of Imprisonments: Exploring the 

Consequences for the Sentencing Process", (2001) 39 Osgoode Hall L.J. 305. 

26. R v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. 

27. R v. Gladue, [1999] 1 S.C.R. 688. 

28. R v. McDonald (1999), 40 O.R. (3d) 641 (CA). 

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29. R v. Bill, [1997] B.C.J. No. 3031(SC). 

30. Peter Hogg, Constitutional Law of Canada, 5th ed. supp. (Carswell). 

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