Gun ruling shows dubious wisdom
Hypothetical: Law-abiding legally licensed gun owner who wrongly stores his unloaded firearm in an insecure cabinet with ammunition nearby.
Reality: Five individuals wounded in a shootout at a Toronto townhouse complex early Thursday evening, broad daylight, close to a park where children were playing.
Further reality: Summer of the Gun, 52 gun-related homicides in the city, followed by the Boxing Day slaying of teenager Jane Creba on Yonge Street.
Other realities: Two dead and 23 wounded in the 2012 Danzig community barbecue bullet barrage. A month earlier, two dead and five wounded, including a 13-year-boy struck in the head, in a hail of gunfire at the Eaton Centre food court, committed by a man who was out on bail for sexual assault.
It was the lethal gun violence — acts too numerous to chronicle here — that had the public and politicians clamouring for stricter gun-crime laws. That campaign had been led, in its earlier days, by no less a liberal lefty than mayor David Miller, who tirelessly lobbied Ottawa.
And Ottawa responded, with mandatory minimums on sentencing — three years for illegal gun possession, five years for possession by individuals with repeat weapons offences.
But the Supreme Court of Canada ignored all the reality, cleaving instead to the hypothetical, an utter invention because no one in the circumstances posited — law abiding, licensed, unlocked firearm, readily accessibly ammunition — has ever been prosecuted by way of indictment as opposed to summary conviction, thus facing only a fine, not a jail term.
By a vote of 6-3, demonstrating the considerable divide inside the top court of the land, the Supremes this week knocked the stuffing out of legislation that had once been promoted by some of the same elements which are now celebrating — striking down Section 95(2) of the Criminal Code as unconstitutional; cruel and unusual punishment.
“A three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the normal of criminal sentencing — there is a cavernous disconnect between the severity of licensing type offences and mandatory minimum three-year terms of imprisonment,” wrote Chief Justice Beverley McLachlin.
The court had two cases before them, brought as constitutional appeals. In one, the respondent was a19-year-old who threw away a loaded handgun while being chased by police. The prohibited .22 semiautomatic had 23 bullets in the clip. The accused, with no previous record, was sentenced to 40 months under mandatory guidelines. With credit for pretrial time served in custody, the sentence actually amounted to one day more in jail.
In the second case, the Emergency Task Force responded to a roominghouse incident and found under the bed a loaded Ruger equipped with an over-capacity magazine — prohibited firearm — containing 13 rounds of live 9mm ammo. The serial number had been removed. Its owner had a lengthy and serious criminal record, including five convictions for firearm-related offences. He received seven years, less five for time-served.
Neither sentence nor conviction was overturned by the Supreme Court. Indeed, lawyers didn’t claim that the sentences were unfair to their clients. They argued the sentences were unfair to others; that the “safety valve” in place didn’t protect a hypothetical accused from prosecution for mere licensing infractions.
And the Supremes, in their dubious wisdom, bought it.
Much has been made, within the decision and without, from commentators, about the alleged futility of mandatory sentences, as belatedly realized in the U.S. and elsewhere. “Empirical evidence suggests mandatory minimum sentences do not, in fact, deter crimes,” McLachlin wrote, for the majority.
But sentencing, which many including McLachlin seem to have forgotten, is not aimed exclusively at deterring crime.
Sentencing objectives incorporate crime-prevention initiatives, respect for the law and maintenance of a just, peaceful and safe society by — as the decision itself reminds — denouncing unlawful conduct, deterring the offender and other persons from committing offences, separating offenders from society where necessary, assisting in rehabilitation, and promoting “a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.”
None of which dissuaded the majority from dismantling the mandatory-sentencing provisions. Instead, they got hung up on their pretend-offender, so grossly and disproportionately punished — except it hasn’t happened — by the law.
Three justices, in unusually strong language, took their majority colleagues to task, led by Justice Michael Moldaver, a brilliant jurist perceived as the most tough-on-crime of the bunch, but also a champion, on the lower benches, for the unjustly convicted and victims of police misconduct.
In writing for the minority, Moldaver pointed out that any sensible prosecutor would not indict a merely absent-minded defendant but would proceed by summary avenues. The indictment alternative was absurdly far-fetched.
“The confluence of events necessary for a licensing-type offender to face the prospect of a grossly disproportionate sentence strikes me as more imaginary than real. With respect, this hypothetical scenario stretches the bounds of credulity.”
Moldaver reminded his indisputably activist colleagues — because they’ve clearly lost touch with their core role — that it’s for Parliament to craft legislation as the elected government of the day sees fit, and for the Court to determine constitutional validity upon vigorous legal consideration. This decision, spun in conjecture, arguably conflates the two.
“Gun crime is a matter of grave and growing public concern. Successive Parliaments have responded by enacting laws designed to denounce and deter such crime. The mandatory minimums in s. 95(2) were part of a suite of legislative changes put forward as ‘a direct response to the scourge of handgun crime that plagues our country’ . . .
“Given this inherent danger, it was open to Parliament to conclude that simple possession of a loaded or readily loaded restricted or prohibited firearm should attract a significant mandatory custodial sentence ...
“In my view, sending our elected representatives back to the drawing board on s. 95 would impede the goals of deterring and denouncing the unlawful possession of deadly weapons and keeping them out of the hands of those who would use them as instruments of intimidation, death and destruction.”
Moldaver reminded that the Supreme Court has, in the past, warned against the use of questionable assumptions or loose conjectures that are “far-fetched or only marginally imaginable.’’
He concluded: “With respect, I see no reason to second-guess Parliament based on hypotheticals that do not accord with experience or common sense. Nor . . . is there any sound basis for disturbing the extensive deliberations of our elected representatives on this important issue.”
If this had not been a sentencing initiative of Stephen Harper’s Conservative government, would the outcome have been different? For too many, it’s primarily a delightful slap-down of Harper & Company.
We need to think outside the Harper box.
The Supremes have spoken and the decision can’t be undone. There’s no higher-up appeal. But the legislation can and should be redrafted in Parliament to make it constitutionally inviolable — hypothetically. Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.