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SCC ruling important for all Canadians

The Supreme Court of Canada decision that struck down a law requiring mandatory minimum sentences for gun crimes is an important ruling that Canadians should pay attention to and understand, says Toronto criminal lawyer John Rosen

“I think Canadians should understand that there are, within the justice system, concerned people who want to protect not only the safety of the public but all of the elements that make up a free and democratic society,” he tells AdvocateDaily.com.

“It’s not just a good decision in terms of its result; I think it’s a well-reasoned decision that reflects our concern for constitutional standards.”

Rosen, partner with Rosen Naster LLP, says the problem is that when the Conservative government passed this legislation dealing with mandatory minimum sentences for gun crimes, “it cast its net too wide so that people who, for example, may have technically breached the gun-control legislation would be looking at a three-year minimum when in fact they should be looking at a fine.”

The 6-3 ruling in R. v. Nur, 2015 SCC 15, written by Chief Justice Beverley McLachlin, says the statute was unconstitutional. The high court upheld a 2013 Ontario Court of Appeal ruling.

“As the Court of Appeal concluded, there exists a 'cavernous disconnect' between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment,'' says the decision.

McLachlin also says that, “The government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes. Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes.''

The high court was deciding in this case two gun crime appeals brought by provincial and federal attorneys general. 

The high court struck down the three-year mandatory minimum sentence for a first offence of possessing a loaded prohibited gun, as well as the five-year minimum for a second offence.

The mandatory minimums became law in 2008 as part of a sweeping federal government omnibus bill, reports the Canadian Press

Rosen notes that Ottawa’s tough-on-crime stance, which includes mandatory minimum sentences for an increasing number of offences, is part of the government’s move to remove judges’ discretion to impose fair and appropriate sentences on a case-by-case basis.

“You don’t have judges taking it upon themselves to do inappropriate things without having some degree of accountability – that’s why we have a Court of Appeal, a Supreme Court of Canada and a Judicial Council to oversee conduct," he says. "And that’s why the Law Society of Upper Canada highly regulates lawyers and why the Ministry of the Attorney General oversees its Crown prosecutors.”

Given all of the checks and balances in the system, Rosen says, giving judges discretion is not a bad thing, but Ottawa has been consistently trying to use the American model of justice to remove judges' discretion.

The high court’s decision restores that judicial discretion when it comes to some gun offences, says Rosen.

“The public should read beyond the headlines on this ruling to understand the impact of that,” he says.

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