COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Nur, 2013 ONCA 677

DATED:  20131112

DOCKET: C54701

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hussein Jama Nur

Appellant

Dirk Derstine and Janani Shanmuganathan, for the
    appellant

Riun Shandler and Andreea Baiasu, for the respondent

Moiz Rahman and Nancy Dennison, for the intervener, the
    Attorney General of Canada

Paul F. Monahan and Kimberly Potter, for the intervener,
    the Canadian Civil Liberties Association

Bruce F. Simpson, for the intervener, the John Howard
    Society of Canada

Virginia Nelder and Faisal Mirza, for the intervener,
    the African Canadian Legal Clinic

Scott Hutchison and Danielle Robitaille, for the
    intervener, the Advocates Society

Heard:  February 19-22, 2013

On appeal from the sentence imposed by Justice Michael A.
    Code of the Superior Court of Justice in Toronto on August 30, 2011, with
    reasons reported at 2011 ONSC 4874, 275 C.C.C. (3d) 330.

Doherty J.A.:

I

overview

[1]

The court heard this appeal and five others together.  The appeals
    raised constitutional challenges to various provisions of the
Criminal Code
, R.S.C. 1985, c. C-46
imposing or
    related to the imposition of mandatory minimum terms of imprisonment for
    various firearm-related offences.  In addition to the common constitutional
    questions, there are also issues specific to each appeal.

[2]

In these reasons, I will address three issues:

·

Does the three-year minimum sentence upon conviction for the
    offence under s. 95 of the
Criminal Code
(possession of a loaded
    restricted or prohibited weapon) violate s. 12 of the
Canadian
Charter

of Rights and Freedoms
and, if so, can the infringement be justified by s.
    1
?

·

Does the three-year minimum sentence violate s. 15 of the
Charter
and, if so, can the infringement be justified by s.
    1
?

·

Is s. 95 rendered arbitrary and, therefore, contrary to s. 7 of
    the
Charter
by virtue of the two-year gap that exists between the
    maximum sentence available when the Crown proceeds summarily (one year) and the
    mandatory minimum sentence when the Crown proceeds by indictment (three years)
and, if so, can the infringement be justified by s. 1
?

[3]

The trial judge found no violation of either ss. 12 or 15 of the
Charter
.
    He did find that the scheme in s. 95, creating a two-year gap between the
    minimum penalty if the Crown proceeded by indictment and the maximum penalty if
    the Crown proceeded summarily, infringed s. 7 of the
Charter
.  The
    trial judge held, however, that the appellant had no standing to advance the s.
    7 claim as, on the facts, there was no reasonable possibility that the Crown
    would have elected to proceed summarily against him.

[4]

I would hold that the three-year minimum sentence does infringe s. 12 of
    the
Charter
and cannot be saved by s. 1.  I would declare the minimum
    three-year sentence required by s. 95(2)(a) of no force or effect.

[5]

Although unnecessary to do so, I will address ss. 15 and 7 in deference
    to the trial judges thoughtful reasons and counsels helpful submissions.  I
    agree with the trial judges s. 15 analysis.  I do not, however, agree with his
    s. 7 analysis.  In my view, the two-year gap between the maximum penalty
    available when the Crown proceeds summarily and the minimum penalty available
    when the Crown proceeds by indictment does not make s. 95 arbitrary as that
    word is used in the s. 7 jurisprudence.

[6]

Lastly, as to the fitness of the actual sentence imposed, the trial
    judge sentenced the appellant to one day in custody and gave him 40 months
    credit for 20 months pre-sentence custody.  The Crown does not suggest that the
    appellant should be re-incarcerated.  I see no practical value in going through
    the exercise of determining what would be an appropriate sentence for the
    appellant in the absence of the mandatory minimum and had he not served the
    equivalent of a 40-month sentence.  I observe only that, even absent the
    mandatory minimum, and having regard to the appellants age and his first
    offender status, a significant jail term was still necessary in the
    circumstances of this case.

II

trial proceedings

A.

overview

[7]

The appellant was charged with one count of possession of a loaded
    prohibited firearm contrary to s. 95(1) of the
Criminal Code
.  The
    Crown proceeded by indictment, and the appellant elected to be tried by judge
    alone.  The appellant eventually pleaded guilty to the charge.  The appellant
    did not, however, admit any of the facts relevant to the allegation beyond
    those essential to maintaining the plea, but put the Crown to the strict proof
    of any facts that the Crown relied on as aggravating features on sentence.  The
    appellant also challenged the constitutionality of the minimum three-year
    penalty imposed by s. 95(2)(a)(i).

[8]

A lengthy sentencing hearing ensued in which the parties produced
    substantial evidence relevant to the constitutionality of the challenged
    provision, and the Crown led evidence relevant to the circumstances of the
    offence.  The appellant did not testify at the proceedings but did make an
    unsworn statement from the prisoners dock pursuant to s. 726 of the
Criminal
    Code
.  In that statement, the appellant indicated that somebody told him
    to hold the gun and run if the police came.  He was not prepared to give
    evidence under oath because he had concerns for his own and his familys safety
    if he had been obliged to identify any of the persons involved.  The trial
    judge ultimately assigned no weight to the appellants explanation for his
    possession of the gun.

[9]

In his detailed and careful reasons, the trial judge held that the three-year
    minimum did not offend ss. 12 or 15 of the
Charter
.  He also made
    findings of fact in respect of the circumstances surrounding the commission of
    the offence.

[10]

The
    trial judge concluded that a sentence of 40 months was appropriate for the
    offence and the offender, having regard to the mandatory three-year minimum.
    The appellant had been denied bail and had been in custody for 26 months.  The
    trial judge ultimately determined that the appellant should be given credit on
    this charge for 20 months of his pre-trial custody.  The Crown and the defence
    agreed that the appellant should get two for one credit for those 20 months.
[1]
Applying that multiplier, the appellant had served the equivalent of 40 months,
    the same length as the sentence that the trial judge considered appropriate in
    the circumstances.  The trial judge, therefore, imposed a sentence of one day
    in custody to be followed by two years probation.

B.

facts relevant to the offence

[11]

The
    events underlying the charge began at a community centre located in the Jane
    and Finch neighbourhood of Toronto.  That area is described as a priority
    neighbourhood because of its very high levels of poverty, population density,
    and crime.  Gun violence is a serious and ongoing problem in that community.

[12]

Early
    one winter evening, a young man entered the community centre and spoke to a staff
    member.  He advised the staff member that he was afraid of someone who was waiting
    outside the community centre to get him.  The staff member saw a person lurking
    outside who looked very threatening.  The staff member decided to put the
    community centre on lockdown and called the police.

[13]

When
    the police arrived at the community centre, they saw four men standing at one
    of the entrances.  The appellant was one of the four men.  As one of the
    officers approached the group, all four men ran in different directions.

[14]

The
    police officer chased the appellant.  The appellant was holding his left hand
    against his body as he ran.  He appeared to be concealing something.  The officer
    was rapidly closing ground on the appellant when he saw the appellant throw
    something away.  The officer continued his pursuit, catching and arresting the appellant
    moments later.

[15]

After
    arresting the appellant, the officer returned to the area where he had seen the
    appellant throw something to the ground.  The officer found a loaded handgun
    under a parked car.  The gun was a fully operable 22-calibre semi-automatic, equipped
    with an oversized ammunition clip.  There were 23 bullets in the clip and one
    in the chamber.  The gun could fire all 24 rounds in 3.5 seconds.  The gun is a
    prohibited firearm as defined in the
Criminal Code
.

[16]

The
    trial judge was not satisfied beyond a reasonable doubt that the appellant had
    anything to do with the events that led to the police being called to the
    community centre.  He also could make no specific finding as to when, how, or
    why the appellant came into possession of the loaded handgun.  The trial judge
    found, at para. 27:

At some point, Nur [the appellant] came into possession of the
    prohibited firearm and he hid it under his coat.  There is no clear evidence as
    to how long he had been in possession of the gun or how he came to possess it.

C.

facts relating to the offender

[17]

The
    appellant was 19 years old at the time of his arrest and 21 at the time of
    sentencing.  He was born in Somalia.  His family fled the armed conflict in
    that country, going first to the United States.  When the appellant was five
    years old, his family crossed into Canada and claimed refugee status.  Since
    then, the family has lived in Canada.  The appellant has permanent resident status.

[18]

The
    appellant is the sixth of nine siblings.  All the children live with their
    parents in a home located in the same part of the city as the community centre.
     The appellants father is the dominant person in the household.  He is a firm
    but loving parent.

[19]

The
    appellants family is, by all accounts, a strong, close, and loving one.  All
    the children go to school, work, or do both.  None, other than the appellant,
    has had any trouble with the law.  The family was shocked by the charges
    brought against the appellant.  The appellants older brother testified that,
    in the future, the entire family would be watching the appellant closely to
    ensure that he does not get into trouble again.

[20]

At
    the time of his arrest, the appellant was attending high school.  He was doing
    well academically and hoped to attend York University in the future.

[21]

The
    appellant had worked various part-time jobs and also performed volunteer work
    in the community.  Teachers and previous employers spoke highly of his
    performance and his potential.  One employer referred to him as Mr. Reliable.

[22]

The
    trial judge summarized the evidence concerning the appellant in these terms, at
    para. 35:

It can be seen that Nur is a young man with considerable potential.
    He also has the good fortune to come from a strong pro-social family who remain
    very supportive.  Finally, he is a first offender with no apparent criminal
    antecedents.

[23]

As
    a permanent resident, the appellant is subject to the
Immigration and
    Refugee Protection Act
, S.C. 2001, c. 27, which provides for deportation
    on grounds of serious criminality.  Should immigration officials decide to
    deport the appellant to Somalia, a country he has not been in since he was a
    very young child, that decision could only be appealed to the Appeal Division
    of the Immigration and Refugee Board if the appellant received an effective
    sentence of less than two years.  On the evidence before the trial judge, the
    possibility that the appellant would actually be deported to Somalia could not
    be quantified.

III

the section 12 challenge

A.

introduction

[24]

Section
    12 of the
Charter
reads:

Everyone has the right not to be subjected to any cruel and
    unusual treatment or punishment.

[25]

Clearly,
    the imposition of a jail sentence upon conviction is a punishment that
    engages s. 12.  Section 12 will be infringed if the punishment is grossly
    disproportionate.  I will examine the concept of gross disproportionality as
    developed in the s. 12 case law in detail below.

[26]

Before
    turning to the s. 12 jurisprudence, I will place s. 95 in its legislative context
    and outline the purpose of the section.  I do so because punishment cannot be
    grossly disproportionate in its own right.  Proportionality describes a
    relationship between two things.  In the present case, it is the relationship
    between the length of the mandatory minimum penalty demanded by the statutory provision
    on the one hand, and the purpose of the statute, the nature of the prohibited conduct,
    and the circumstances of the offender on the other hand.  The prohibited
    conduct is described by the terms of the
Criminal Code
provision creating
    the offence.

B.

section 95

[27]

Section
    95(1) provides:

Subject to subsection (3),
[2]
every person commits an
    offence who, in any place, possesses a loaded prohibited firearm or restricted
    firearm, or an unloaded prohibited firearm or restricted firearm together with
    readily accessible ammunition that is capable of being discharged in the
    firearm, without being the holder of

(a)
an authorization or a
    licence under which the person may possess the firearm in that place; and

(b)
the registration
    certificate for the firearm.

[28]

The
    offence created by s. 95 is a Crown election or hybrid offence.  If the Crown
    proceeds by indictment, the offence is punishable by a maximum of 10 years and
    a minimum of three years imprisonment.  The minimum increases to five years for
    a second or subsequent offence.  If the Crown proceeds summarily, there is no
    minimum and the maximum is one year:  s. 95(2).
[3]

(i)

Statutory Context

[29]

Canada
    has a long history of gun control legislation:  see
R. v. Schwartz
,
    [1988] 2 S.C.R. 443, at p. 483.  Currently, Parliament, using its criminal law
    power to further public safety and deter crime, has established a scheme that
    combines a strict licensing and registration component found principally in the
Firearms Act
, S.C. 1995, c. 39 with a number of supporting restrictions,
    investigative powers, and criminal prohibitions found in Part III of the
Criminal
    Code
,
Firearms and Other
    Weapons:  see
Reference re Firearms Act (Can.)
, 2000 SCC 31, [2000] 1
    S.C.R. 783 (
Firearms Reference
).

[30]

Under
    the scheme, firearms, a defined term in s. 2 of the
Criminal Code
,
    fall into three categories: prohibited firearms, restricted firearms, and all
    other firearms:  see
Firearms Reference
, at para. 6.  The terms
    prohibited firearm and restricted firearm are defined in s. 84 of the
Criminal
    Code
.  Other guns that meet the definition of a firearm, but do not fall
    within the definition of a prohibited or restricted firearm, are classified as firearms.
    Long rifles and shotguns are two examples of guns that are firearms but that are
    not prohibited or restricted firearms.
[4]

[31]

The
    definitions of a prohibited firearm and a restricted firearm are somewhat
    complex.  For present purposes, a prohibited firearm includes short-barrelled
    handguns,
[5]
sawed-off rifles and
    shotguns, and automatic firearms.  A restricted firearm is defined to include any
    handgun that is not a prohibited firearm, some semi-automatic firearms, and
    some firearms that are less than the specified length.

[32]

Firearms
    that fall within the definition of either a prohibited or restricted firearm are
    commonly connected to criminal activity and seldom associated with any legitimate
    employment or activity.  Firearms that do not fall within either definition,
e.g.
long rifles and shotguns, are associated with legitimate activities such as
    hunting and farming.

[33]

The
Firearms Act
requires that anyone wishing to possess any firearm must
    obtain a licence.  Licences authorizing the possession of prohibited and
    restricted firearms, including handguns, are available under the
Firearms
    Act
but only in very limited circumstances:  see
Firearms Act
,
ss. 7(2) and 12.

[34]

In
    addition to requiring a licence to possess any firearm, the
Firearms Act
requires a person seeking a licence to also obtain a registration certificate
    for that firearm:
Firearms Act
, s. 12.1.  A prohibited or restricted
    firearm must be registered by a person who holds a licence authorizing that
    person to possess that weapon.  With one small exception, a registration
    certificate may be issued to only one person:
Firearms Act
, ss.
    12.1-16.

[35]

Even
    if a person obtains the necessary licence and registration certificate, the
Firearms
    Act
places significant restrictions on where that person can possess the
    firearm, especially if the firearm is a prohibited or restricted firearm.  Section
    17 provides that such firearms may be possessed only at the individuals
    dwelling as identified in the Canadian Firearms Registry, or at some other place
    authorized by the Chief Firearms Officer.

[36]

There
    are also provisions in the
Firearms Act
requiring that licensed
    persons obtain authorization to transport firearms from one designated place to
    another, and provisions imposing restrictions on the transfer and lending of
    firearms.  Once again, prohibited and restricted firearms are singled out for especially
    strict restrictions:  see
Firearms Act
, ss. 22-28.  A good example of the
    very specific and restrictive nature of authorizations to possess and transport
    restricted or prohibited firearms is found in the facts of
R. v. MacDonald
, 2012 NSCA 50,
283 C.C.C. (3d) 308, at para.
    7 (S.C.C. appeal heard May 23, 2013).

[37]

A
    person who has a licence to possess a handgun, by definition either a
    restricted or prohibited firearm, and who has registered that handgun may obtain
    authorization to carry that handgun.  A carry permit, however, is available
    only in respect of a handgun that was subject to a licence or permit prior to December
    1998:
Firearms Act
, s. 20.  In addition to that requirement, the
    person seeking a carry permit must show that he or she needs the gun to protect
    his or her life or the lives of others, or that he or she needs the gun in connection
    with a lawful profession or occupation.  Apart from recognized exceptions, most
    notably the police, very few people in Canada are authorized to carry a handgun.

[38]

The
    licensing and registration requirements in the
Firearms Act
are
    supported by a series of
Criminal Code
provisions criminalizing the
    possession of firearms where that possession contravenes the terms and
    conditions of the scheme established under the
Firearms Act
.  I will
    briefly review those provisions.

[39]

Section
    90 prohibits the carrying of a concealed weapon.
[6]
The prohibition does not
    apply if the person is authorized to carry the weapon under the
Firearms
    Act
.  The offence created by s. 90 is a hybrid offence punishable by a
    maximum of five years if the Crown proceeds by indictment.  There is no
    minimum.

[40]

Sections
    91 and 92 are similar; however, s. 92 contains an added
mens

rea
component which requires that the accused know that he or she is not the holder
    of the required licence and registration certificate:
R. v. Meer
,
    2011 ABQB 8; and
R. v. Egonu
, 2007 CarswellOnt 1985 (Ont. S.C).  Both
    sections prohibit the possession of any firearm by a person who does not have
    the required licence and, if the firearm is a prohibited or restricted firearm,
    the required registration certificate.  Section 91 is a hybrid offence
    punishable by a maximum of five years if the Crown proceeds by indictment.
    There is no minimum.  Section 92 is an indictable offence punishable by a
    maximum of 10 years.  It carries no minimum penalty for a first offence, but does
    carry a minimum penalty of one year for a second offence and two years less a
    day for a third or subsequent offence.

[41]

Section
    93 prohibits the possession of a firearm by a person who is a holder of a
    licence and, in the case of a prohibited or restricted firearm, a registration
    certificate, at a place other than the place identified in the licence or
    authorization.  Section 93 is a hybrid offence which carries a maximum penalty
    of five years if the Crown proceeds by indictment.  There is no minimum
    penalty.

[42]

Section
    94 criminalizes being in a motor vehicle in which the person knows there is a
    firearm, unless an occupant of the motor vehicle is the holder of a licence (and,
    in the case of a prohibited or restricted firearm, a registration certificate),
    or unless the person charged has reasonable grounds to believe that an occupant
    of the vehicle is a holder of the licence and registration certificate.  The
    offence created by s. 94 is a hybrid offence and carries a maximum penalty of
    10 years if the Crown proceeds by indictment.  There is no minimum penalty.

[43]

Section
    95, the section in issue, came into force in December 1998:  S.C. 1995, c. 39,
    s. 139.  It prohibits the possession of a loaded prohibited or restricted
    firearm, or the possession of an unloaded prohibited or restricted firearm
    together with readily accessible ammunition that is capable of being
    discharged in the firearm.  The offence applies to anyone in possession of a
    prohibited or restricted firearm who does not have an authorization or a
    licence to possess the firearm at the specific place in issue and a
    registration certificate for the firearm.

[44]

Section
    95 is a hybrid offence punishable by a maximum of 10 years if the Crown
    proceeds by indictment.  Initially, the offence carried a one-year minimum
    sentence if the Crown proceeded by indictment and a one-year maximum penalty if
    the Crown proceeded summarily.  In May 2008, the minimum sentence was increased
    to three years for a first offence and five years for a subsequent offence if
    the Crown proceeded by indictment:  S.C. 2008, c. 6, s. 8.  The one- year
    maximum if the Crown proceeded summarily was not changed.

[45]

Section
    95 carries a more serious penalty than do any other possession
simpliciter
offences.  The penalty reflects two aggravating factors found in the provision.
    Section 95 applies to prohibited and restricted firearms, and not to other
    firearms, and it applies only if the firearm is loaded or if ammunition for the
    firearm is readily available.

(ii)

The Elements of the Section 95 Offence

[46]

Criminal
    offences are typically analyzed in terms of their conduct component (the
actus
    reus
) and their fault component (the
mens rea
):
R. v. H. (A.D.)
, 2013 SCC 28,
295 C.C.C. (3d) 376, at
    para. 1.  The
actus reus
of the s. 95 offence can be described as
    follows:

·

possession of a firearm that falls within the definition of
    either a prohibited or restricted firearm;

·

the firearm must be loaded or, if unloaded, useable ammunition
    must be readily accessible.  Readily accessible ammunition has been
    interpreted as meaning ammunition that can be accessed quickly and without
    difficulty:  see
R. v. Khan
(2007), 217 C.C.C. (3d) 209, at para. 17 (Ont.
    S.C.); and

·

the accused must not be the holder of either a licence or
    authorization permitting possession at the place where the offence allegedly
    occurred, or a registration certificate for the firearm.

[47]

The
    Crown must prove each element of the
actus reus
beyond a reasonable
    doubt, including the requirement that the accused did not have the required
    licence or authorization, and registration certificate:  see
R. v. Cairns
,
    2007 BCCA 572, 227 C.C.C. (3d) 149.

[48]

The
mens rea
of a s. 95 offence, as with most possession-based offences,
    consists of knowledge or wilful blindness of the existence of the elements of
    the
actus reus
:  see
R.
    v. Briscoe
, 2010 SCC 13, 253 C.C.C.
    (3d) 140, at para. 21
.  The Crown must prove the following:

·

the accused knew or was wilfully blind that he or she was in
    possession of the firearm in issue:  see
R. v. Williams
, 2009 ONCA 342,
244 C.C.C. (3d) 138, at
    paras. 10 and 18;
R. v. Chalk
,
    2007 ONCA 815,
227 C.C.C. (3d) 141, at para. 18; and
R. v.
    Snobelen
, [2008] O.J. No. 6021, at paras. 34-35 (C.J.);

·

the accused knew or was wilfully blind that the firearm was
    loaded or, if unloaded, knew or was wilfully blind that useable ammunition was
    readily accessible; and

·

the accused knew or was wilfully blind that he or she did not
    have both the required licence or authorization to possess the firearm at the place
    alleged and the required registration certificate:
MacDonald
, at
    para. 84.
[7]

[49]

Section
    95 casts a wide net:
MacDonald
, at para. 47.  Unlike some firearm
    offences that carry a substantial minimum penalty (
e.g.
manslaughter, at
    s. 236(a), and criminal negligence causing death, at s. 220(a)), s. 95 does not
    require proof of any harm, or even any risk of harm, to any other person as a
    result of the possession of the firearm.  Nor, unlike other sections carrying a
    mandatory minimum (
e.g.
discharging a firearm at a person with intent to
    wound, at s. 244(2)), does s. 95 require proof of an intention to cause any harm,
    recklessness as to the potential for harm flowing from the possession, or even
    criminally negligent behaviour relating to the firearm.  It is irrelevant to a charge
    under s. 95 that the accused took all necessary precautions to ensure the
    safety of others.

[50]

Section
    95 differs from other firearm possession offences that carry a minimum penalty
    in another respect.  Unlike, for example, the offences created by ss. 85, 96,
    100, and 279, there is no requirement in s. 95 that the Crown prove that the
    possession of the firearm was connected to some other unlawful activity or
    intended unlawful activity.  Possession is criminal under s. 95 even if it is entirely
    untainted by any other unlawful activity.

[51]

The
    scope of s. 95 is best understood by considering the range of potential
    offenders caught by that section.  At one end of the spectrum stands the outlaw
    who carries a loaded prohibited or restricted firearm in public places as a
    tool of his or her criminal trade.  By any reasonable measure, this person is
    engaged in truly criminal conduct and poses a real and immediate danger to the
    public.  At the other end of the spectrum stands the otherwise law-abiding responsible
    gun owner who has possession of an unloaded restricted or prohibited firearm,
    but with readily accessible ammunition stored nearby. That person has a licence
    and registration certificate for the firearm, but knowingly possesses the
    firearm at a place that falls outside of the terms of that licence.  That
    persons conduct may well pose little, if any, risk to others. I would
    characterize that misconduct as more in the nature of a regulatory offence.

[52]

There
    is no doubt that the vast majority of persons charged under s. 95 fall at the
    true crime end of the spectrum.  Most guns that are the subject matter of a s.
    95 charge exist entirely outside of the regulatory scheme established under the
Firearms

Act
.  Most
    people
charged under s. 95 would never think of applying for a
    licence and, were they to apply, would never obtain a licence or a registration
    certificate.  Furthermore, the vast majority of s. 95 charges arise in situations
    where the possession of the firearm is directly connected to criminal activity
    and/or poses some other immediate danger to other persons.

[53]

The
    reality that the vast majority of s. 95 offenders will be engaged in conduct
    that would be classified as dangerous and criminal under any definition does
    not alter the reach of the section as drawn by Parliament.  Section 95 applies
    not only to offenders like the appellant, whose conduct poses an immediate and
    serious risk to the public, but also to persons whose conduct cannot be said to
    pose any real risk to the public.  The potential application of the mandatory
    minimum to persons at what I have called the regulatory end of the s. 95
    spectrum figures prominently in the s. 12 analysis.

(iii)

The
    Purpose of Section 95

[54]

The
    purpose of s. 95 is obvious and non-controversial.  All firearms pose a danger,
    both to users and to others.  The possession and use of firearms have been
    tightly regulated in Canada for many years.  Experience teaches that certain
    kinds of firearms,
e.g.
handguns, sawed-off rifles, and automatic
    firearms, are the weapons of choice of the criminal element.  Those kinds of firearms
    pose an added danger to the public.  They become even more dangerous when
    loaded or when useable ammunition is readily available to the person in
    possession of the firearm.

[55]

Section
    95 seeks to protect the public by criminalizing the possession of potentially
    dangerous firearms in circumstances that increase the danger posed to the
    public by the possession of those firearms.  By criminalizing possession
simpliciter
,
    the criminal law can intercede before someone is actually harmed and before criminal
    activity, so often associated with the possession of these kinds of firearms,
    actually occurs or is attempted.

[56]

Section
    95 is, without question, a valid expression of the federal criminal law power:
Firearms Reference
,
at

para. 33.  Nor, in my view, can it be successfully argued that the criminal
    prohibition created by s. 95, coupled with a mandatory minimum penalty, is not
    a rational legislative response to the very real public safety concerns associated
    with the possession of the kinds of firearms described in s. 95, either when loaded
    or readily capable of being loaded. In 1994-1995 and again in 2005-2006, Parliament
    had before it a wealth of information indicating that gun violence and related
    criminal activity were taking a massive human and economic toll, especially in communities
    in Canadas large cities where social and economic conditions provided fertile
    ground for gang-related activities.  Young males in those communities were
    particularly likely to be caught up in gun violence, both as users and as victims.
    The evidence before Parliament in 2005-2006 indicated that earlier attempts to
    stem the increase in gun violence and related criminal activity had not been
    successful.

[57]

Parliament
    reacted to these very real public safety concerns with a package of legislation,
    one part of which provided for a lengthy mandatory minimum jail sentence for
    those convicted under s. 95, if the Crown chose to proceed by indictment.  The
    certainty that a significant jail term would follow upon conviction for a s. 95
    offence reflected Parliaments determination that the community could best be
    protected by severe sentences that would denounce gun-related activity, deter those
    who might resort to such activity, and incapacitate for significant periods those
    who chose to engage in such activity.

[58]

A
    constitutionally valid legislative purpose and a means that is rationally
    connected to that purpose does not guarantee that the means chosen to achieve
    the purpose is constitutional:  see
R. v. Smith
, [1987] 1 S.C.R. 1045,
    at p. 1071.  The constitutionality of the means chosen here  the three-year
    minimum jail term  falls to be determined under s. 12 of the
Charter
.

C.

The Gross Disproportionality Analysis

(i)

Section 12 is a Principle of Fundamental Justice

[59]

For
    convenience, I repeat the terms of s. 12:

Everyone has a right not to be subjected to any cruel and
    unusual treatment or punishment.

[60]

Section
    12 provides constitutional protection against state-inflicted punishment that
    is cruel and unusual.  Section 12 claims can be based on the nature of the punishment,
    the conditions in which the punishment is served, the duration of the
    punishment, or some combination of those factors:  see Peter W. Hogg,
Constitutional
    Law of Canada
, loose-leaf (2007-Rel. 1), 5th ed. (Toronto: Thomson Reuters
    Canada Ltd., 2007), at pp. 53-3 to 53-4. This appeal raises the most common
    kind of s. 12 claim.  The appellant argues that the mandatory minimum penalty
    of three years is cruel and unusual primarily because of its length.

[61]

A
    statutory provision which imposes a mandatory minimum jail term engages s. 7 of
    the
Charter
.  A person who is subject to that penalty suffers a
    deprivation of his or her liberty.  That deprivation is constitutional only if
    it is consistent with the principles of fundamental justice.

[62]

Section
    12, like the other legal rights protected in ss. 8 to 14 of the
Charter
,
is illustrative of a principle of
    fundamental justice.  Punishment that is cruel and unusual is an interference
    with liberty that is contrary to the principles of fundamental justice:
Reference
    re Motor Vehicle Act

(British Columbia) S 94(2)
, [1985] 2 S.C.R.
    486, at pp. 501-02.

[63]

A
    claim that a statutorily-imposed sentence is so harsh as to constitute an
    infringement on liberty that is inconsistent with the principles of fundamental
    justice falls to be determined exclusively under the s. 12 prohibition against
    cruel and unusual punishment.  Attempts to introduce some less stringent
    standard against which to measure the constitutionality of mandatory minimum
    sentences under the rubric of the principles of fundamental justice have been
    rejected:
R. v. Malmo-Levine
, 2003 SCC 74, [2003] 3 S.C.R. 571, at
    para. 160.
[8]

(ii)

What is Cruel and Unusual Punishment?

[64]

The
    words cruel and unusual have a long constitutional pedigree and are used together
    as a compendious expression of a norm to describe a punishment that is so
    beyond what would be proper or proportionate punishment as to be grossly
    disproportionate:
R. v. Miller
,
[1977] 2 S.C.R. 680, at pp. 689-90, per Laskin C.J., concurring; and
Smith
,
at

p.
1072.

[65]

A
    sentence may be excessive, even sufficiently excessive to warrant appellate
    intervention, despite the high deference owed to sentences imposed at trial,
    and still not reach the level of gross disproportionality:  see
Smith
,
at

p.
1072;
R. v. Morrisey
, 2000
    SCC 39, [2000] 2 S.C.R. 90, at para. 26;
R. v. McDonald
(1998), 40
    O.R. (3d) 641 (C.A.), at p. 665; and
R. v. K.(R.)
(2005), 198 C.C.C.
    (3d) 232 (Ont. C.A.), at para. 66.

[66]

The
    Supreme Court of Canada has consistently used strong language to describe the
    kind of sentence that will run afoul of s. 12.  For example, Laskin C.J. in
Miller
,
    at p. 688, described a cruel and unusual sentence as one that is so excessive
    as to outrage standards of decency.  His language echoes throughout the
    Supreme Court of Canadas s. 12 jurisprudence.   In
R. v. Ferguson
, 2008
    SCC 6, [2008] 1 S.C.R. 96, at para. 14, the present Chief Justice said:

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 [citation omitted].

[67]

I
    see no value in characterizing the gross disproportionality inquiry as objective,
    subjective, or a combination of the two.  As with the application of any legal
    standard, the inquiry cannot turn simply on the individual judges personal sense
    of the harshness of the sentence, or on the individual judges perception of the
    public reaction to the sentence.  Identifiable criteria drawn from legal sources
    generally looked to when fixing sentences will guide the gross
    disproportionality inquiry.  In broad terms, that inquiry demands a comparison
    of the minimum penalty required by the challenged statute with what would be
    regarded as an appropriate range of sentence for the same offence committed by
    the same offender but for the challenged mandatory minimum.

[68]

Again,
    in broad terms, the comparative exercise described above looks to a variety of
    factors, including the specifics of the offence and the offender, the gravity
    of the offence as reflected in the statutory provision creating the offence,
    the generally applicable principles of sentencing, the kinds of sentences
    imposed for similar or related offences, the social harm targeted by the
    mandatory minimum penalty, and the purpose animating Parliaments decision to
    use a mandatory minimum sentence.

[69]

Until
    relatively recently, mandatory minimum jail terms were a rarity in Canadian
    criminal law:  see Nicole Crutcher, Mandatory Minimum Penalties of Imprisonment:
    An Historical Analysis (2001) 44 Crim. L.Q. 279; and Julian Roberts,
    Mandatory Minimum Sentences of Imprisonment:  Exploring the Consequences for
    the Sentencing Process (2001) 39 Osgoode Hall L.J. 305.  There is, however, no
    presumption that a mandatory minimum penalty is constitutionally suspect:  see
Smith
,
at

p.
1077.  Sentencing policy is first and
    foremost Parliaments responsibility.  A mandatory minimum is a forceful
    expression of government policy in the area of criminal law:
R. v.
    Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 45;
Ferguson
,
at para. 54; and
R. v. Gill
, 2012
    ONCA 607, at para. 45.  Simply because mandatory minimums restrict judicial
    discretion, long the centrepiece of the sentencing process in Canada, does not
    mean that they offend the constitutional norm in s. 12.  As with any other
    constitutional challenge, the onus of proof rests on the party alleging the
Charter
violation:  see
R. v. Goltz
, [1991] 3 S.C.R. 485, at pp. 518-20.

[70]

The
    case law reflects the high bar set by the gross disproportionality standard.
    After
Smith
, no decision of the Supreme Court of Canada or this court
    has declared a mandatory minimum jail term unconstitutional under s. 12.  As
    observed by Cory J. in
Steel v. Mountain Institution
, [1990] 2 S.C.R.
    1385, at p. 1417:

It will only be on rare and unique occasions that a court will
    find a sentence so grossly disproportionate that it violates the provisions of s.
    12 of the
Charter
.  The test for determining whether a sentence is
    disproportionately long is very properly stringent and demanding.

[71]

The
    stringent gross disproportionality standard is justified on two grounds.
    First, s. 12, like other constitutional protections, sets a minimum standard
    for legislation.  Section 12 fixes the outer boundary of Parliaments authority
    over sentencing in criminal matters: see
Smith
, at pp. 1107-08, per
    McIntyre J., dissenting.  Section 12 is not intended to constitutionalize any
    particular penological policy or theory, or to prohibit any legislation that
    the court may see as unreasonable or falling short of a best practices
    standard.  Properly restrained judicial constitutional review accepts the
    primary law-making responsibility of legislatures by acknowledging the wide
    ambit of legislative choices available to elected officials.

[72]

Second,
    the stringency of the gross disproportionality standard is justified by the nature
    of sentencing in the criminal law.  The fixing of an appropriate penalty, or
    more usually an appropriate range of penalties, is far from a science.  Different
    punishments can be justified using various theories of punishment.  Thus, a
    punishment regime that emphasizes utilitarian concerns will in many cases impose
    a very different sentence than would a regime emphasizing a just desserts
    model of sentencing.  Neither theory enjoys a constitutional status: see Morris
    J. Fish, An Eye for an Eye: Proportionality as a Moral Principle of
    Punishment (2008) 28 Oxford J. Legal Stud. 57.

[73]

Part
    XXIII of the
Criminal

Code
describes the fundamental purpose
    of sentencing in Canadian criminal law and identifies the operative principles
    of sentencing.  While both utilitarian and just desserts considerations are
    evident in the various sentencing principles identified in Part XXIII, the
    overall aim of Part XXIII is to impose a sentence that is tailored to both the
    offence and the offender.  Individualized sentencing through the exercise of
    judicial discretion sounds the keynote of Part XXIII.

[74]

Part
    XXIII does not, however, describe a constitutional standard.  In the same way
    that Part XXIII reflects Parliaments authority over and responsibility for penal
    policy, specific statutory provisions that depart from the generally applicable
    approach to sentencing in Part XXIII reflect that same authority and
    responsibility. Mandatory minimums that limit judicial discretion on sentencing
    are as much a reflection of sentencing policy as are the statutory provisions
    that create broad sentencing discretion.  The gross disproportionality standard
    recognizes that Parliament is free to set sentencing policy, even a policy that
    restricts the individualized approach to sentencing in Part XXIII, so long as the
    policy does not impose sentences that are so excessive as to be grossly
    disproportionate:
Ferguson
, at para. 54; and
Goltz
, at pp. 501-03.

(iii)

The
    Two-Step Inquiry into Gross Disproportionality

[75]

A
    claim that a mandatory minimum sentence constitutes cruel and unusual
    punishment is tested in two ways.  First, the court must decide whether the punishment
    is grossly disproportionate as applied to the accused before the court.  This particularized
    inquiry asks whether the mandatory minimum is a grossly disproportionate punishment
    for the particular accused in the particular circumstances:
Goltz
, at p.
    505.

[76]

If
    the sentence survives the particularized inquiry, the court goes on to decide
    whether the sentence is grossly disproportionate when applied to reasonable
    hypotheticals:  see
Goltz
, at pp. 505-06.  The selection of an
    appropriate reasonable hypothetical is a matter of some controversy and is the
    key to the outcome of this constitutional challenge.

[77]

If
    a minimum penalty fails either the particularized or reasonable hypothetical
    component of the gross disproportionality inquiry, the provision, assuming it
    cannot be saved by s. 1 of the
Charter
, will be found to violate s.
    12
.  After some doubt, it is now
    established that if a mandatory minimum sentence violates s. 12, the remedy
    lies under s. 52 of the
Constitution Act, 1982
.  The offending provision to the extent that it is
    inconsistent with s. 12 will be of no force or effect and will be struck
    down.  A more narrow case-specific remedy in the form of a constitutional
    exemption applicable to the individual accused is not an available remedy:
Ferguson
,
    at paras. 34-74.

[78]

A
    number of factors may inform the gross disproportionality analysis, both as it
    applies to the particular accused and to reasonable hypotheticals: see
Smith
,
    at p. 1073;
Goltz
, at paras. 25-27; and
Morrisey
, at paras.
    27-28.   The factors identified in the case law are:

·

the gravity of the offence;

·

the personal characteristics of the offender;

·

the particular circumstances of the case;

·

the actual effect of the punishment on the individual;

·

the penological goals and sentencing principles reflected in the
    challenged minimum;

·

the existence of valid effective alternatives to the mandatory
    minimum; and

·

a comparison of punishments imposed for other similar crimes.

[79]

There
    is no formula to be applied in weighing and assessing the various factors in any
    given case:
R. v. Latimer
,
2001
    SCC 1, [2001] 1 S.C.R. 3,
at para. 75.  Several of the factors are
    self-explanatory; however, the gravity of the offence, the actual effect of the
    punishment on the individual, and the impact of penological goals and
    sentencing principles require further comment.

(a)

The Gravity of the Offence

[80]

If,
    as in this case, the challenged mandatory minimum penalty requires the
    imposition of a three-year penitentiary term, a significant period of incarceration
    by any measure, the gravity of the offence will probably be the most important
    single factor in assessing constitutionality under the gross disproportionality
    standard.  Unless an offence that attracts a three-year minimum sentence can be
    described as a serious criminal offence, I do not see how a three-year minimum
    sentence could survive a s. 12 challenge.

[81]

The
    gravity of the offence is measured by reference to the essential elements of
    the offence that the Crown must prove to establish guilt and not by the circumstances
    surrounding the commission of the offence in the particular case before the
    court.  The particularized factors are separately addressed in the s. 12
    analysis.  For the purpose of measuring the gravity of the offence, a more
    generic approach to the offence is taken.

[82]

It
    cannot be gainsaid that all crime is serious.  In describing the gravity of a
    particular crime, however, one necessarily speaks in relative terms and by
    reference to the seriousness of other crimes, particularly related crimes.
    When speaking of firearm-related offences, the seriousness inquiry, while acknowledging
    the inherent danger of all firearms, must go beyond that level of generality to
    the specifics of the offence as described in the offence-creating provision.

[83]

The
    seriousness of a crime is the product of the harm targeted by the elements of
    the crime and the moral culpability required to establish guilt for the crime.
    The greater the harm and the higher the moral culpability, the more serious the
    crime.

[84]

I
    use the word harm in a broad sense to refer to a variety of consequences
    ranging from death, to injury to another, to damage to property, to
    interference with other legally protected interests, or to the risk of one or
    more of those consequences.  Crimes that require proof of actual harm to
    others, especially death, are generally more serious than crimes that prohibit
    other forms of harm.  Crimes that do not require proof of any harm or risk of
    harm of any kind are generally less serious than crimes that do require proof
    of some kind of harm or risk of harm.

[85]

As
    explained above, while most s. 95 offences will involve conduct that at the
    very least poses a risk of harm to others, s. 95 as written does not require
    proof of any harm or proof of any realistic risk of harm flowing from the
    unauthorized possession of the restricted or prohibited firearm.  Evidence that
    the firearm was safely stored and posed virtually no risk to anyone would not
    afford a defence to a s. 95 charge.  In short, proof that the accuseds conduct
    harmed or posed a risk of harm to others is not a prerequisite to the
    imposition of a three-year penitentiary sentence under s. 95.

[86]

The
    moral culpability component of an offence, the second factor to be considered
    when assessing seriousness, usually refers to the mental state that must
    accompany the commission of the prohibited act.  There are a variety of
    culpable mental states, including intention, recklessness, and knowledge.  An
    intention to bring about a prohibited consequence ranks at the top of the criminal
    law hierarchy of blameworthiness or moral culpability.

[87]

Although
    moral culpability is generally reflected in a
mens

rea
requirement, blameworthiness can lie in the nature of the conduct engaged in,
    as for example where proof of criminally negligent conduct will suffice to
    establish guilt.  Blameworthiness based on the nature of the conduct as opposed
    to the offenders mental state will usually reduce the seriousness of the
    offence.  Thus, criminal negligence causing death is significantly less serious
    than murder, even though the conduct and consequences required for the two
    crimes may be identical: see
Morrisey
, at para. 36.

[88]

Section
    95 is a
mens rea
offence.  It requires proof of knowledge or wilful
    blindness of the elements of the
actus reus
of the offence.  The
    requirement that the Crown establish knowledge increases the moral culpability
    or blameworthiness of an accuseds conduct and, therefore, increases the
    seriousness of the offence:
Goltz
, at p. 507.

[89]

The
    broad scope of the conduct captured by s. 95 makes it difficult to come to any
    definitive conclusion as to the relative gravity of the conduct proscribed by s.
    95.  Unlike other firearm provisions that carry a significant mandatory minimum
    sentence for a first offence, there is no common denominator in the conduct captured
    by s. 95 that allows one to say that, because of the harm involved, a s. 95
    offence is a very serious criminal offence.  Indeed, Parliament has recognized
    that s. 95 offences are not inherently serious crimes by providing that the
    Crown can proceed summarily, in which case there is no mandatory minimum and
    the full panoply of sentencing options, including discharges, are available to
    the sentencing judge.

[90]

In
    attempting to gauge the seriousness of a s. 95 offence, it is helpful to
    compare that offence to the offence of criminal negligence causing death with a
    firearm.  That offence attracts a four-year minimum under s. 220(a) and can be
    committed in an infinite variety of fact situations.  However, all those fact situations
    require proof that the accuseds conduct caused the death of another person.
    The most serious of all possible harms is, therefore, a common element of all
    offences punishable under s. 220(a).  No such common feature can be found in
    the conduct component of s. 95.  Indeed, the section is written to eliminate even
    the requirement that the firearm be loaded, the strongest harm-related
    component of the offence as defined in s. 95.

[91]

The
    reach of the offence described in s. 95 is more akin to that of the offence of
    importing a narcotic into Canada considered in
Smith
.  Like the importation
    offence, s. 95 requires proof of blameworthiness through a knowledge
    requirement.  Also like s. 95, the conduct captured by the importation offence encompasses
    widely differing levels of harm ranging from the virtually non-existent (importation
    of a very small amount of marijuana) to the devastating (the importation for
    resale of large amounts of cocaine).  The broad sweep of the conduct captured
    by the importation offence figured prominently in the courts ultimate determination
    in
Smith
that the seven-year minimum period violated s. 12 of the
Charter
.
[9]

[92]

In
    summary, while the offence under s. 95 will almost always involve some element
    of risk of harm, and must in all cases involve knowledge or wilful blindness of
    the existence of the elements of the offence, the harm associated with a s. 95
    offence is significantly, if not entirely, attenuated in some fact-situations
    that still fall squarely within the prohibition created by s. 95 and that attract
    the mandatory minimum if the Crown proceeds by indictment.

(b)

The Actual Effect of the Punishment on the Individual

[93]

The
    gross disproportionality analysis is not done in the abstract.  The actual
    impact of the sentence on the offender must be considered. The conditions under
    which the offender will serve his or her sentence and any particular negative
    effects the sentence may have on an offender are relevant considerations.  If an
    offender seeks to show some special negative impact flowing from the imposition
    of the mandatory minimum penalty, evidence to support that contention will be
    necessary.  However, I think judges can take judicial notice that first
    offenders, especially young first offenders, will have a difficult time when
    placed in the federal penitentiary system.

[94]

It
    is also understood that persons sentenced to a specific term of imprisonment in
    Canada will seldom serve the full term in custody.  Credit for pre-sentence
    custody and the operation of the parole system will have a very real impact on
    the actual sentence to be served by an offender.

[95]

If
    a convicted person is incarcerated prior to sentencing, the trial judge may
    deduct a credit for pre-sentence custody from the mandatory minimum:
R. v.
    Wust
, 2000 SCC 18, [2000] 1 S.C.R. 455; and
McDonald
.  The
    calculation for pre-trial custody is now controlled by ss. 719(3) and (3.1).
    Those provisions set the credit at one day for each day in pre-sentence custody,
    subject to an increase to one and one-half days for each day in pre-sentence custody
    if the circumstances justify it:  see
R. v. Summers
, 2013 ONCA 147,
114 O.R. (3d) 641, leave
    to appeal to S.C.C. granted August 15, 2013: [2013] S.C.C.A. No. 191; and
R.
    v. Bradbury
, 2013 BCCA 280, 298 C.C.C. (3d) 31.

[96]

Credit
    for pre-sentence custody does not mean that the offender receives a sentence
    which is less than the mandatory minimum. Particularly after the enactment of
    s. 719(3.1), credit for pre-sentence custody affects the impact of the
    mandatory minimum not by reducing the sentence below that minimum, but by
    avoiding the potential gross disproportionality that could occur were an
    accused required to serve the entirety of a mandatory minimum after already
    serving a significant period of time in pre-sentence custody:  see
McDonald
, at p. 669.

[97]

The
    potential impact of pre-sentence custody on the actual sentence to be served by
    an accused subject to a mandatory minimum is demonstrated on the facts of this
    case.  The trial judge, as he was entitled to do at the time, gave the appellant
    two for one credit for his pre-sentence custody.  Based on that calculation, he
    imposed a further period of incarceration of one day.  Consequently, the
    mandatory minimum sentence had no practical impact on the time spent in custody
    by the appellant.

[98]

Parole
    and other forms of post-sentence mitigation of time spent in custody must also be
    taken into account when considering whether the sentence imposed meets the
    gross disproportionality standard:
R. v. Luxton
(1990), 58 C.C.C.
    (3d) 449 (S.C.C.), at p. 460;
Goltz
,
at

p. 514; and
Morrisey
, at para. 55.  To assume for the purpose of
    constitutional analysis that a sentence of three years means that a person will
    serve three years in jail, is to ignore the reality of the Canadian penal
    system.  Parole will, in most cases, reduce, sometimes significantly, the
    actual time spent in custody by an individual offender.  That, of course, is
    not to say that parole is a right or that offenders on parole do not have
    substantial restrictions on their liberty.  However, parole undoubtedly mitigates
    the impact of a sentence on an offender.

[99]

Evidence
    as to the likelihood of parole for a specific offender would clearly be
    admissible on a s. 12 challenge.  Public Safety Canada data indicates that between
    2001 and 2011, persons sentenced to penitentiary terms served about 32 per cent
    of their sentences before receiving day parole and about 38 per cent before
    receiving full parole.  The same statistics for 2012 indicate that the average federal
    prisoner in 2012 served about 38 per cent of his or her sentence before
    receiving day parole and about 41.5 per cent before receiving full parole:  Public
    Safety Canada,
Corrections and Conditional Release Statistical Overview
(2012
    Annual Report) (Ottawa: Minister of Public Works and Government
Services Canada, 2012), online:
<http://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2012-ccrs/2012-ccrs-eng.pdf>,
    at pp. 83-84.  These increases are apparently attributable to the
Abolition
    of Early Parole Act
,

S.C.
2011, c. 11.
[10]

[100]

Averages do not
    predict the date of parole for any particular offender.  It is, however,
    realistic to assume that the kind of offender for whom a three-year minimum jail
    term could most likely be described as grossly disproportionate is the very
    same offender who would be most likely to gain early release on day parole and
    then full parole.

(c)     Penological
    Goals and Sentencing Principles

[101]

The gross
    disproportionality analysis must also examine the rationale for the minimum
    sentence and its justification under recognized sentencing principles.  As explained
    in
Morrisey
, at paras. 43-48, the constitutionality of a minimum
    sentence cannot be determined by reference to any single sentencing principle.
    In considering the four-year minimum penalty for the offence of criminal negligence
    causing death with a firearm, Gonthier J. said, at para. 46:

I am convinced that this legislation survives
    constitutional scrutiny even if the sentence pursues sentencing principles of
    general deterrence, denunciation, and retributive justice more than the
    principles of rehabilitation and specific deterrence.  In other words, the
    punishment is acceptable under s. 12 while having a strong and salutary
    effect of general deterrence.

[102]

I understand Gonthier J. to mean that minimum sentences that stress
    denunciation and general deterrence over other sentencing goals are not thereby
    rendered unconstitutional.  It is equally true, however, that sentences that
    are said to be justified by those same principles do not automatically pass constitutional
    review:
Smith
, at pp. 1073-74.

[103]

A consideration of a mandatory minimum sentence in light of generally
    accepted theories of punishment and sentencing principles including proportionality
    inevitably drives one back to the gravity of the offence.  Thus, in
Morrisey
, a strong emphasis on the principles of general deterrence,
    denunciation, and retribution as reflected in a four-year minimum sentence was
    justified in light of the seriousness of the offence of criminal negligence
    causing death.  A four-year mandatory minimum for an offence that did not
    involve the same level of harm or did not have a blameworthiness requirement,
    while no doubt reflecting the same principles of deterrence, denunciation, and
    retribution, would likely not survive a s. 12 analysis.

(iv)

The Particularized Inquiry as Applied to the Appellant

[104]

The
    factors relevant to a determination of whether a minimum sentence is grossly
    disproportionate vis-à-vis the accused can be considered compendiously by
    comparing the mandatory minimum sentence to the sentence that would have been
    imposed under a sentencing scheme that was identical to the existing scheme
    save for the requirement of the mandatory minimum.  The trial judge followed
    this approach.
[11]

[105]

The trial judge
    reviewed the s. 95 sentencing jurisprudence as of 2008 before the three-year
    minimum sentence was introduced.  As he pointed out, that jurisprudence developed
    under a sentencing scheme that carried a maximum penalty of ten years and a
    minimum penalty of one year when the Crown proceeded by indictment.  The trial
    judge reasoned that as the one-year minimum had never been successfully challenged,
    he must accept it for the purpose of deciding what would have been an
    appropriate sentence but for the three-year minimum.

[106]

I tend to agree
    with the trial judge.  However, I do not think the mandatory one-year minimum
    has much effect on what would have been an appropriate sentence for the
    appellant but for the three-year minimum.  Under the relevant principles of
    sentencing, and having regard to the case law, this appellant would have
    received a sentence well beyond one year regardless of whether the one-year
    minimum existed.

[107]

As the many
    cases reviewed by the trial judge indicate, sentencing under s. 95 before 2008 stressed
    denunciation and deterrence.  Mitigating factors personal to a particular
    accused necessarily took on a less significant role when fixing the appropriate
    penalty:
e.g.
see
R. v. D.(Q.)
(2005), 199 C.C.C. (3d) 490
    (Ont. C.A.), at paras. 77-78; and
R. v. Nguyen
, 2005 BCCA 115, 209
    B.C.A.C. 133, at para. 5.

[108]

The trial judge,
    at para. 45, described the sentencing range for a s. 95 offence before the
    introduction of the three-year minimum as between two years less one day and
    three years.  In his view, at para. 71, the appellant would have received a
    sentence of two and one-half years.  He concluded that the three-year minimum
    was not grossly disproportionate as applied to the appellant.

[109]

I am in
    substantial agreement with the trial judges analysis of the sentencing case
    law.  Had the trial judge been sentencing the appellant without the three-year
    minimum in place, the crucial question would have been whether a penitentiary term
    was necessary.  I am satisfied that a trial judge, properly balancing all the
    factors, could have sentenced the appellant to a maximum reformatory term.  I
    am equally satisfied that another trial judge, also properly balancing the
    various factors, could have imposed a penitentiary sentence of up to three
    years.  As the range of appropriate sentences includes a three-year sentence, a
    mandatory minimum three-year sentence cannot be described as grossly
    disproportionate.

(v)

The Reasonable Hypothetical

(a)

The case law

[110]

R. v. Big M
    Drug Mart
,
[1985] 1 S.C.R.
    295, at p. 314, established that, assuming standing,
[12]
a person may challenge the constitutionality of a law on the basis that it
    infringes a right protected by the
Charter
regardless of whether that
    law infringes the constitutional rights of the person advancing the challenge.
    As Dickson J. explained, where legislation is challenged as incompatible with
    the
Charter
under s. 52 of the
Constitution Act,

1982
,
    either in its purpose or effect, [i]t is the nature of the law, not the status
    of the accused, that is in issue.  The Supreme Court of Canada has repeatedly
    reaffirmed that a s. 52 challenge to a law does not depend on whether the
    challenged provision offends the rights of the claimant: see
R. v.
    Morgentaler
, [1988] 1 S.C.R. 30;
R. v. Wholesale Travel Group Inc.
,
    [1991] 3 S.C.R. 154;
R. v. Heywood
, [1994] 3 S.C.R. 761;
R. v.
    Mills
, [1999] 3 S.C.R. 668; and
Ferguson
, at paras. 58-66.

[111]

The nature of
    the inquiry required by a s. 52 challenge demands that the inquiry into the constitutionality
    of a mandatory minimum sentence embrace potential fact situations other than those
    presented in the individual case.  The reasonable hypothetical provides the method
    by which that broader constitutional inquiry is made.

[112]

The reasonable
    hypothetical methodology first appeared, albeit unnamed and unexplained, in the
    seminal case of
Smith
.  In
Smith
, no one argued that the
    seven-year minimum penalty would constitute cruel and unusual punishment for
    the accused, who had a criminal record and had imported cocaine valued at over
    $100,000 into Canada.  For the purposes of the constitutional challenge, the actual
    facts of the case quickly gave way to those of a hypothetical offender
    described at p. 1053 as:

[A] young person who, while driving back into Canada from a
    winter break in the U.S.A., is caught with only one, indeed, lets postulate,
    his or her first joint of grass.

[113]

Justice Lamer,
    for the majority, at p. 1054, acknowledged that in his long experience in the
    criminal law, he was not aware of any person matching his description of his
    hypothetical offender ever being prosecuted for importing a narcotic into
    Canada.  However, the possibility that this hypothetical offender could be
    charged lurked and were that person ever to be charged and convicted, a
    seven-year sentence would be a certainty because of the mandatory minimum.

[114]

The essence of Lamer
    J.s analysis appears at p. 1078:

As indicated above, the offence of importing enacted by s. 5(1)
    of the
Narcotic Control Act
covers numerous substances of varying
    degrees of dangerousness and totally disregards the quantity of the drug
    imported.  The purpose of a given importation, such as whether it is for
    personal consumption or for trafficking, and the existence or nonexistence of
    previous convictions for offences of a similar nature or gravity are
    disregarded as irrelevant.  Thus, the law is such that it is inevitable that,
    in some cases, a verdict of guilt will lead to the imposition of a term of
    imprisonment which will be grossly disproportionate.

That is what offends s. 12, the certainty, not just the
    potential.  However, the effect of the minimum is to insert the certainty
    that, in some cases, as of conviction the violation [of s. 12] will occur.  It
    is this aspect of certainty that makes the section itself a
prima facie
violation of s. 12, and the minimum must, subject to s. 1, be declared of no
    force or effect.

[115]

Professor Hogg aptly
    describes the hypothetical used in
Smith
as the most innocent possible offender principle:

Constitutional Law of Canada
, at p. 53-4.  As described in
Smith
, the virtues of the hypothetical offender and the
    mitigating factors relevant to the commission of the offence seem limited only
    by the imaginations of counsel and judges.

[116]

Unmodified, the
hypothetical
    offender analysis described in
Smith
would have left very few, if any, mandatory minimum
    jail terms standing.  However, that is not what happened.  In two subsequent
    cases,
Goltz
and
Morrisey
, the Supreme Court narrowed the scope of the
    reasonable hypothetical as applied to s. 12 challenges to mandatory minimum
    sentences.
[13]
Both cases require careful examination.

[117]

In
Goltz
, the accused was charged under s. 88(1)
of
British Columbias
Motor
    Vehicle Act
, R.S.B.C. 1979, c. 288 (
MVA
)
.  That section made it an offence to
    drive while knowingly prohibited from driving under any of the provisions enumerated
    in s. 88 of the
MVA.
The offence was punishable by a minimum term of
    imprisonment of seven days and a $300 fine.

[118]

The accused in
Goltz
was
prohibited from driving under s.
    86(1)(a)(ii) of the
MVA
, o
ne
    of the provisions that is listed in s. 88(1).  Subparagraph 88(1)(a)(ii)
    authorized the Registrar to prohibit a person from driving based on that
    persons bad driving record.  The
MVA
contained various procedural
    safeguards, including a mandatory pre-prohibition interview with the Registrar
    designed to ensure that the Registrar made a prohibition order only in those
    cases that fully warranted the order.

[119]

The accused in
Goltz
did not contend that the seven-day mandatory minimum was unconstitutional as
    applied to him.  He argued, however, that there would be cases where, having regard
    to the nature of the offences that could precipitate a s. 88(1) prohibition
    order and the circumstances in which the driving under prohibition might occur,
    a seven-day minimum sentence would be grossly disproportionate.  The accused
    did not limit his challenge to prohibitions issued under s. 86(1)(a)(ii), but submitted
    that the court was required to consider all prohibitions that could possibly
    support a conviction under s. 88(1).  The accused succeeded at trial and the
    mandatory minimum was declared unconstitutional: see (1988) 44 C.C.C. (3d) 166
    (B.C. Co. Ct.).  The Crown appeal to the British Columbia Court of Appeal was
    dismissed:  see (1990), 52 C.C.C. (3d) 527 (B.C.C.A.).

[120]

In reversing the
    decision of the British Columbia Court of Appeal and holding the section
    constitutional, Gonthier J., for the majority, at pp. 503-04, began by
    acknowledging that the constitutionality of a minimum penalty had to be tested
    not only on the facts of the particular case, but also by reference to a
    broader factual background.  He observed that the need to examine the
    constitutionality of a mandatory minimum from a broader prospective than that
    afforded by the specific facts of the case presented a problem which the
    jurisprudence to date exhibits significant confusion about.  He proceeded to identify
    and describe the reasonable hypothetical methodology.  His approach narrowed
    the approach taken in
Smith
in three important ways.

[121]

First, the
    majority in
Goltz
took a more restricted view of the potential fact situations
    encompassed by reasonable hypotheticals.  Although Gonthier J. did not expressly
    take issue with the hypothetical offender used in
Smith
to test the constitutionality of the mandatory
    minimum,
his description of the reasonable hypothetical was quite
    different from that used in
Smith
.
    Justice Gonthier, at p. 504, referred to the hypothetical offender in
Smith
as that imaginary small offender. He described his reasonable hypothetical in
    these terms, at pp. 515-16:

A reasonable hypothetical example is one which is not far-fetched
    or only marginally imaginable as a live possibility.
While the Court is unavoidably required to consider
    factual patterns other than that presented by the respondents case, this is
    not a licence to invalidate statutes on the basis of remote or extreme
    examples.
Laws typically aim to govern a particular field
    generally, so that they apply to a range of persons and circumstances.  It is
    true that this Court has been vigilant, wherever possible, to ensure that a
    proper factual foundation exists before measuring legislation against the
Charter
[citations omitted].  Yet it has been noted above that s. 12 jurisprudence does
    not contemplate a standard of review in which that kind of factual foundation
    is available in every instance.
The applicable standard must focus on imaginable
    circumstances which could commonly arise in day-to-day life.
[Emphasis added.]

[122]

The reasonable hypothetical in
Goltz
describes those cases that fall within the broad mainstream
    of fact situations contemplated by the terms of the offence in issue.  Fact
    situations that represent true outliers, the remote or extreme examples, may,
    if and when they arise, give rise to an argument that the mandatory minimum is
    unconstitutional as applied to the specific accused and, therefore, of no force
    or effect.  Those extreme examples cannot, however, be used as reasonable
    hypotheticals to strike down mandatory minimums in cases where the minimum as
    applied to the specific accused does not constitute cruel and unusual punishment.
     After
Goltz
, the
    reasonable hypothetical designed to capture every lurking possibility in
Smith
had been narrowed to capture those possibilities
    that could commonly arise.  The exact contours of the reasonable hypothetical
    remained unclear.

[123]

The second of
    the three restrictions on the selection of an appropriate reasonable hypothetical
    found in
Goltz
flows from the majoritys acceptance of the Crowns position
    that the court should limit its consideration of the constitutionality of the
    minimum penalty to cases where the driving prohibition was based on the same
    section of the
MVA
as was the prohibition in
Goltz
.  The
    majority left for another day the constitutionality of prohibitions based on
    other sections identified in s. 88:  see
Goltz
, at p. 496.

[124]

By limiting its analysis
    to minimum penalties imposed on those who drove while prohibited from driving by
    a Registrars order, the majority eliminated a wide-range of potential
    hypothetical offenders who were prohibited from driving under other sections and
    who had not had the benefit of the various procedural safeguards applicable to
    prohibition orders made by the Registrar.  By allowing the Crown to narrow the
    scope of the constitutional challenge, the court eliminated from the reasonable
    hypothetical analysis a variety of fact situations in which the seven-day
    minimum penalty would arguably have been much more amenable to constitutional
    challenge.
[14]

[125]

The significant
    impact on the reasonable hypothetical methodology produced by limiting the offence
    to the particularized version as it arose in the actual case is evident in
R.
    v. Brown
, [1994] 3 S.C.R. 749.  In
Brown
, the accused was
    convicted of three robberies and three related counts of using a firearm while
    committing an indictable offence, contrary to s. 85 of the
Criminal Code
.
    He challenged the constitutionality of the statutory provisions providing for
    mandatory minimum consecutive sentences upon conviction on the charges of using
    a firearm in the commission of an indictable offence.

[126]

The challenge
    succeeded in the Manitoba Court of Appeal: (1993), 80 C.C.C. (3d) 275.  Justice
    Helper, for the court, considered reasonable hypotheticals that involved the
    use of a firearm in the commission of a property-related indictable offence (
e.g.
mischief).  She said, at p. 285:

The certainty remains that an offender who has a previous
    firearms conviction and commits a series of property offences using a firearm
    would be subject to an inordinately long period of incarceration upon
    conviction.

[127]

The Supreme Court
    of Canada reversed in a unanimous and very brief judgment holding, at p. 751:

Here, the Attorney General of Manitoba limited its defence of
    s. 85 to the case which concerns armed robbery as the underlying offence.  As
    such, the hypothetical proposed by the respondent relating to mischief is not a
    reasonable hypothetical envisioned by
Goltz
.  We agree with these submissions
    and would therefore find no violation of s. 12 of the
Charter
.

[128]

After
Goltz
and
Brown
, it seems clear that if the offence to which the mandatory
    minimum attaches is predicated on the commission of some other offence (
e.g.
using a firearm in the commission of indictable offence), or on the breach of
    some statutory provision or order (
e.g.
driving while prohibited), the
    Crown can limit the constitutional challenge and, hence, the reasonable
    hypothetical analysis to the same predicate offence or the breach of the same
    statutory provision or order as occurred on the facts of the case giving rise
    to the constitutional challenge.
[15]
I will examine the application
    of this line of authority to s. 95 when I examine the reasonable hypotheticals
    available under s. 95.

[129]

The third and
    final restriction on reasonable hypotheticals advanced in
Goltz
arises
    from the connection drawn between the facts of the case before the court and
    the ambit of the reasonable hypothetical.  On the majoritys analysis, the
    facts of the case before the court afforded an excellent indicator of the scope
    of the appropriate reasonable hypotheticals.  Two passages of the majority
    judgment, at pp. 516 and 519, make this point:

The
    particular facts of the instant appeal provide an important benchmark for what
    is a reasonable example in the context of s. 86(1)(a)(ii) of the Act.
This is because they represent one real application of the challenged statutory
    provision.  A finding of absence of
Charter
infringement on the sole
    basis of these particular facts therefore lends support to a conclusion that
    the challenged legislation is valid under s. 12.  In this appeal, this
    indication is particularly significant because the administrative guidelines
    and internal review system which screen out genuinely bad drivers ensure that
    responsible drivers will not be prohibited, and because the facts of this
    appeal are highly representative of commonly imaginable instances of the
    offence.

Even
    if the respondent had submitted a relevant example, it is doubtful that it
    would have overcome the strong indication of validity arising from the first,
    particularized step of s. 12 analysis.
[Emphasis added.]

[130]

It is not clear
    to me why the facts of a given case are necessarily representative of available
    reasonable hypotheticals.
On this
    approach, the two stages of the gross disproportionality inquiry begin to
merge
    into one.  However, after
Goltz
,
    the actual facts of the case have become an important benchmark in shaping
    reasonable hypotheticals.

[131]

The reasonable hypothetical as reshaped in
Goltz
was further considered in
Morrisey
,
the Supreme Court of Canadas most
    recent decision describing the use of reasonable hypotheticals to challenge the
    constitutionality of mandatory minimum penalties under s. 12 of the
Charter
.
[16]
The accused in
Morrisey
, while drunk and carrying a loaded rifle,
    attempted to rouse a friend who was sleeping.  The accused slipped, the gun
    went off, and his friend was killed.  At first, the accused attempted to hide
    the body, but later confessed to the police and pleaded guilty at trial to
    criminal negligence causing death.  Because the homicide involved a firearm, it
    attracted a mandatory four-year minimum penalty.

[132]

The Supreme Court
    unanimously upheld the constitutionality of the mandatory minimum.
[17]
Justice Gonthier, once again speaking for the majority, referred back to
Goltz
in describing the reasonable hypothetical.  He said, at para. 30:

The reasonableness of the hypothetical cannot be overstated, but
    this means that it must be reasonable in view of the crime in question.

[133]

Justice Gonthier
    acknowledged that the facts of actual cases involving the offence provided a
    logical place to look for reasonable hypotheticals.  However, at para. 33, he
    cautioned against treating each and every reported case as a freestanding
    reasonable hypothetical:

Again, it is to be remembered that the courts are to consider
    only those hypotheticals that could
reasonably
arise [emphasis in
    original].  Homicide is far from a common occurrence in Canada.  Criminal
    negligence causing death with a firearm is even less common.  It is thus
    appropriate to develop hypotheticals from the case law by distilling their
    common elements.
Goltz
requires that hypotheticals be common rather
    than extreme or far-fetched.
It is sufficient when dealing with a rare and
    uncommon crime that the hypotheticals be common examples of the crime rather
    than examples of common occurrences in day-to-day life.  However, in
    constructing hypotheticals, courts can be guided by real life cases,
but to the extent that these cases may not be exhaustively reported, they are
    not bound to limit the fashioning of hypotheticals to the cases that are made
    available to them.
In
    fashioning hypotheticals for the purpose of a s. 12 analysis, 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.
[Emphasis added.]

[134]

Still later in
    his reasons, at para. 50, Gonthier J. explained why prior cases did not
    necessarily amount to reasonable hypotheticals:

The hypotheticals used by the trial judge were actual reported
    cases.  As I explained above, these reported cases have inherent problems,
    based as they are on evidence adduced by way of agreed facts.  Further, it is
    questionable whether all of the cases considered by the trial judge are common
    examples of cases that arise under s. 220(a).  Finally, each of these reported
    cases turns on its own idiosyncrasies and involves considerations at a level of
    specificity never contemplated by
Smith
[citation omitted].  Under all
    of these circumstances,
I am reluctant to enter into a case-by-case analysis of the specific
    circumstances of each of the individuals who pleaded guilty to this offence.
    Instead, the proper approach is to develop imaginable circumstances which could
    commonly arise with a degree of generality appropriate to the particular
    offence
.
[Emphasis added.]

[135]

Justice Gonthier,
    at paras. 51-52, identified only two reasonable hypotheticals involving the use
    of firearms to commit the offence of criminal negligence causing death.  The
    first involved a person who took possession of the gun for the purpose of
    playing around with a gun and who in the course doing so, shot and killed
    another person.  The second involved a person engaged in a lawful activity
    (hunting) who used a firearm in a criminally negligent manner and caused
    another persons death.  Both hypotheticals described conduct at a general
    level and neither hypothetical referred to any factors particular to the
    individual offender, such as longstanding abuse, extreme youth, ill health, or intellectual
    impairment that might mitigate the penalty.

[136]

The reasonable
    hypothetical used in
Morrisey
describes a much more generic offender
    than does the reasonable hypothetical in
Smith
.  The reasonable
    hypothetical in
Morrisey
captures any offender who engages in the common
    elements of the offence that attract the mandatory minimum.  All one knows
    about the offenders in the reasonable hypotheticals used in
Morrisey
is that both caused the death of another person by using a firearm in a manner
    that showed a wanton or reckless disregard for the safety of others.  Individual
    characteristics of an offender that might mitigate or aggravate the penalty are
    virtually eliminated in the two reasonable hypotheticals used in
Morrisey
.

[137]

The focus in the
    hypothetical on the nature of the act committed and the essential components of
    the offence as opposed to the individual characteristics of the hypothetical
    offender is, in my view, an important refinement on the reasonable hypothetical
    as used in
Smith
.  It seems to me that if the hypothetical offender is
    to be endowed with individual characteristics that can mitigate the penalty,
    then, regardless of the offence, one could describe an offender for whom a
    mandatory minimum punishment would be grossly disproportionate.

[138]

The reasonable
    hypothetical described in
Morrisey
seems a long way from the most
    innocent possible offender hypothetical used in
Smith
.  In some ways
    it is.  However, a careful reading of
Morrisey
suggests that,
    depending on the nature of the offence, there may not be a significant
    difference between the reasonable hypotheticals described in
Morrisey
and
Smith
.

[139]

In
Morrisey
,
    at para. 30, the majority expressly approved of the hypothetical used by Lamer
    J. in
Smith
:

In
Smith
,
the hypothetical used to invalidate the impugned
    punishment was a very realistic one.
There, the legislation
    attached criminal liability to importers of illegal narcotics, irrespective of
    the quantity imported.  The natural and probable consequence of the legislation
    would be to catch individuals who could only be described as small offenders
    [citation omitted] such as the individual importing a single joint.  [Emphasis
    added.]

[140]

Two things about
    the approving reference to
Smith
in
Morrisey
are noteworthy.
    First, in describing the hypothetical from
Smith
, Gonthier J., in
Morrisey
,
    does not refer to any of the personal characteristics of the hypothetical offender
    in
Smith
, such as age and motive, but refers only to factors relevant to
    the nature of the offence, namely, the nature and quantity of the drug imported.

[141]

Second, in
    referring to the hypothetical used in
Smith
as very realistic,
    Gonthier J. was not suggesting that it was realistic in the sense that it
    reflected the kind of case that routinely arose in the criminal courts. Rather,
    it was realistic in the sense that it reflected the scope of the prohibition as
    described in the legislation that defined the crime to which the seven-year
    minimum applied.

[142]

In my view,
    after
Morrisey
and
Goltz
, a reasonable hypothetical is one
    that operates at a general level to capture conduct that includes all the essential
    elements of the offence that trigger the mandatory minimum, but no more.
    Characteristics of individual offenders, be they aggravating or mitigating, are
    not part of the reasonable hypothetical analysis.  It flows from
Morrisey
that the broader the description of the offence in the provision creating the
    offence, the wider the range of reasonable hypotheticals.

(b)

Section 95 reasonable hypotheticals

[143]

I begin my
    description of s. 95 reasonable hypotheticals by considering whether, in
    keeping with
Goltz
and
Brown
, the s. 95 reasonable
    hypothetical should be limited to cases which share the central features of the
    appellants case, namely, possession of a loaded firearm and the absence of any
    kind of authorization or licence to possess that firearm anywhere at any time.
    Neither the Crown nor the Attorney General for Canada suggested at trial or in
    this court that the s. 95 reasonable hypothetical could be limited to cases
    that shared these aggravating features.  Both defended the constitutionality of
    s. 95 in all its potential applications, although both argued that examples
    taken from the regulatory end of the spectrum were not sufficiently common to
    constitute reasonable hypotheticals.

[144]

I was initially
    attracted to the idea of considering the constitutionality of the mandatory
    minimum as applied to cases where the gun was actually loaded and the offender
    had no authorization to have the gun under any circumstances in any place.  Cases
    with those features fall more toward the true crime end of the spectrum.  The
    mandatory minimum would more easily meet constitutional norms if those features
    existed.

[145]

I have, however,
    concluded that the Crown and the Attorney General for Canadas approach of considering
    all potential applications of s. 95 is correct.  Section 95 is a different kind
    of offence than the offences considered in
Goltz
and
Brown
.
    In those cases, the offence that carried the minimum penalty depended on the
    commission of a predicate offence or the breach of some other statutory
    provision or order.  The seriousness of the offence attracting the minimum
    penalty depended to some degree on the nature of the predicate offence, or the
    nature of the conduct giving rise to the prior order.

[146]

Section 95 does
    not depend on the commission of a predicate offence or the breach of any statutory
    or other order.  Section 95, like the importing offence in
Smith
,
    prohibits a broad range of conduct.  Upon reflection, I am satisfied that it
    would be no more appropriate to consider the constitutionality of s. 95 by reference
    only to the more egregious form of conduct captured by s. 95 than it would have
    been in
Smith
to consider the constitutionality of the mandatory
    minimum by reference only to the crime of importing the more harmful narcotics
    such as cocaine into Canada.

[147]

The trial judge
    developed several reasonable hypotheticals at para. 96.  Distilled to their
    essentials, they involved:

·

offenders of previous good character;

·

brief possession of the firearm;

·

no criminal purpose associated with the possession; and

·

the appellants possession was in the nature of a failure to
    comply with the regulatory licensing scheme.

[148]

Mr. Shandler,
    for the Crown, put forward a more restrictive reasonable hypothetical.  In his
    helpful submissions, he argued that a reasonable hypothetical must involve a situation
    of imminent and lethal danger inherent in the presence of a loaded handgun.  According
    to Mr. Shandler, reasonable hypotheticals must be limited to cases in which the
    accused knowingly possesses a loaded restricted or prohibited firearm that has
    never been licensed or legitimately owned.

[149]

This submission
    does not reflect the broad scope of the offence as defined in s. 95.  There is
    no suggestion in s. 95 that the firearms are limited to those that have never
    been licensed or legitimately owned.  Nor does the case law reflect any such
    limitation:
e.g.

R. v. Laponsee
, 2013 ONCJ 295; and
MacDonald.
Furthermore, the offence is not limited to loaded restricted or prohibited
    firearms, but instead extends to such firearms even when unloaded if ammunition
    is readily accessible.  I do not think that liability based on an unloaded
    firearm with ammunition stored nearby can be excluded as a reasonable
    hypothetical given the language of s. 95 any more than possession of a small
    amount of marijuana could be excluded from the importation offence considered
    in
Smith
.

[150]

Having regard to
Goltz
and
Morrisey
and, in particular, the emphasis in
Morrisey
on maintaining a level of generality commensurate with the description of the offence,
    I would describe the s. 95 reasonable hypothetical to be used in the s. 12
    analysis as having three characteristics:

·

the accused is knowingly in possession of an unloaded restricted
    or prohibited firearm with useable ammunition stored nearby and readily
    accessible;

·

the accused has an authorization to possess the firearm and has
    registered the firearm, but to his or her knowledge the authorization does not
    permit possession of the firearm at the place or in the manner in which the
    accused has possession; and

·

the possession of the firearm is not connected to any unlawful
    purpose or activity and the offender is not engaged in any dangerous activity
    with the firearm.

[151]

The Crown
    correctly points out that there are no reported cases that share the
    characteristics of the reasonable hypothetical I have described.  Counsel also
    observes that my reasonable hypothetical is far removed from the facts of this
    appeal or any of the other appeals that were heard with this appeal.  Counsel
    submits that reasonable hypotheticals that have no resemblance to any reported
    cases or the facts of the case before the court are illegitimate reasonable
    hypotheticals after
Goltz
and
Morrisey
.

[152]

There is
    considerable force to counsels submissions.  However, the scheme of s. 95
    compels me to reject that argument.  Section 95 creates a hybrid offence.  The
    Crown may proceed by indictment or summarily.  If the Crown proceeds summarily,
    there is no minimum penalty and the accused may receive a non-custodial
    sentence or even an absolute discharge:
e.g.
see
Snobelen
.
    The essential elements of the offence are, of course, the same whether the
    Crown proceeds by indictment or summarily.  By making s. 95 a hybrid offence,
    Parliament has acknowledged that the appropriate penal response for the
    criminal conduct prohibited by s. 95 runs the full gamut of sentencing options
    from an absolute discharge to 10 years in the penitentiary.  That sentencing
    range tells me that Parliament must have anticipated prosecutions under s. 95
    at what I have referred to as the regulatory end of the spectrum.  The
    reasonable hypothetical I have constructed is consistent with that view of the
    offence.

[153]

My reference to
    the hybrid nature of a s. 95 offence as germane to the construction of a
    reasonable hypothetical leads logically to a consideration of the trial judges
    reliance on the Crown election to prevent any breach of s. 12.  The trial judge
    concluded that there were reasonable hypotheticals in which a three-year
    penitentiary sentence upon conviction on a charge under s. 95 would constitute
    cruel and unusual punishment.  He was satisfied, however, at para. 115, that in
    those cases, the reasonable exercise of Crown discretion would result in
    summary proceedings, thereby avoiding the three-year minimum and any
    constitutional infringement.

[154]

In this court,
    counsel for the appellant argues that the Crown election at the outset of the
    proceedings cannot avoid a potential imposition of the mandatory minimum in
    reasonable hypotheticals where that minimum would violate s. 12.  He relies on
    the analysis in
R. v. Smickle
,
2012 ONSC 602, 280 C.C.C. (3d) 365, at paras. 85-87.  Counsel further submits
    that the appellants constitutional right not to be subject to cruel and
    unusual punishment cannot depend on the Crowns exercise of its prosecutorial
    discretion, be it in respect of the charge to be laid or the mode of
    proceedings:  see
Smith
, at pp. 1078-79.

[155]

Crown counsel
    accepts that the trial judge went too far in viewing the Crowns power to elect
    to proceed summarily as the
sine qua non
of constitutionality under
    the s. 12 analysis.  Crown counsel instead submits that the Crowns ability to
    proceed summarily provides an additional safeguard in those borderline
    reasonable hypothetical cases.

[156]

With respect, I
    do not agree with the trial judges analysis of the effect of the Crown
    election on the constitutionality of the mandatory minimum.  Further, while the
    Crowns ability to elect may provide a safeguard in those cases where the facts
    are known from the outset and agreed upon by the parties, the Crown election
    provides no safeguard in the vast majority of cases where the facts are in
    dispute or unknown at the time of the election.

[157]

The Crown elects
    to proceed by indictment or by way of summary proceedings at an early stage in
    the prosecution.  The election is based on the information available to the
    Crown at that time.  If the accused pleads not guilty and is convicted, he or
    she will be sentenced based on findings of fact made by the trial judge on
    sentencing.  If the Crown chose to proceed by indictment, the constitutionality
    of the three-year minimum will be tested in the context of the facts as found
    for the purpose of sentencing and not the facts as understood by the Crown when
    the election was made.

[158]

If an accused
    pleads not guilty and is convicted, it is not unusual that the facts for the
    purpose of sentencing will be quite different from the Crowns understanding of
    the case when the Crown made its election.  There will inevitably be cases in
    which the Crown elected to proceed by indictment, but would have elected to
    proceed summarily had the election been based on the facts as found at the time
    of sentencing.

[159]

A slight
    variation on the facts in
Snobelen
, a case much discussed as a potential
    reasonable hypothetical during oral argument, demonstrates that the Crown
    election cannot avoid an infringement of s. 12.  In
Snobelen
, the
    accused owned a ranch in Oklahoma.  He sold the ranch, and the personal
    property on the ranch was shipped to him in Ontario.  Unbeknownst to the
    accused, that property shipped to him included a handgun that was a restricted
    firearm and ammunition for the handgun.  The accused did not have a licence and
    the gun was not registered in Canada, although its possession in Oklahoma was
    apparently lawful.  The accused did not become aware that the gun and
    ammunition were in his home until sometime after they were delivered with the
    rest of the property from the Oklahoma ranch.  He intended to dispose of the
    gun and believed that his wife had done so.  He was, however, aware that the
    gun was in his home for a period of time and that he did not have a licence to
    possess the gun.  The accused and his wife were having marital problems, and
    she reported the existence of the gun to the police.  The police executed a
    search warrant and found the gun in the home.  The accused readily admitted he
    should have disposed of the weapon.  There was no suggestion that he had used
    the gun in any way or that there was ever ammunition in the gun.

[160]

On the facts
    outlined above, the accused was charged with possession of a restricted firearm
    and readily accessible ammunition.  The Crown chose to proceed summarily, the
    accused pleaded guilty, and the trial judge imposed an absolute discharge.

[161]

If one assumes,
    however, that in addition to the facts outlined above, the Crown had a credible
    allegation from the spouse that the accused had used the presence of the
    handgun in the home to intimidate her and attempt to dissuade her from taking any
    legal steps she was entitled to take against him, the Crown could, acting
    reasonably, have decided to proceed by indictment.
[18]
Assuming that the accused pleaded not guilty and the rest of the evidence was
    identical to the actual facts in
Snobelen
, and that the trial judge did
    not believe the spouses evidence about the intimidation, the trial judge would
    have convicted the accused under s. 95.  However, because the Crown, relying on
    an aggravating factor that was ultimately rejected by the trial judge, had
    elected to proceed by indictment, the trial judge would have been required to
    impose a three-year penitentiary term based on facts that were identical to
    those that would have led to an absolute discharge had the Crown proceeded
    summarily.   In those circumstances, the three-year penitentiary term would
    surely be a grossly disproportionate sentence.
[19]

[162]

My holding that
    the Crown ability to elect to proceed summarily cannot avoid an infringement of
    s. 12 does not imply that the Crown cannot be relied on to exercise its
    discretion reasonably.  Simply put, except perhaps when the accused pleads
    guilty, the Crown cannot know the facts on which the accused will be sentenced
    when the Crown makes its election.  Consequently, the election cannot be
    expected to be responsive to those facts.

[163]

The trial
    judges analysis, at paras. 105-15, does not come to grips with the timing of
    the Crown election and the factual basis upon which that election is made in
    reaching the conclusion that the Crown power to elect to proceed summarily
    provided a complete answer to the appellants s. 12 claim.  I prefer the
    analysis of the trial judge in
Smickle
, who albeit in the context of
    s. 1 of the
Charter
, observes, at para. 110:

The Crown discretion is exercised at an early stage when all of
    the facts, particularly those favourable to the defence, are often not known.
    Often the full facts will not be known until the trial judge delivers his or
    her reasons or the jury delivers a verdict.

[164]

I come now to
    test my reasonable hypothetical using the factors described above, at para. 78.
    I will focus on the gravity of the offence as reflected in my reasonable
    hypothetical as, in my view, the gravity of the offence is the crucial, if not
    determinative, consideration in this case.

[165]

The reasonable
    hypothetical I use involves no harm to anyone or anything and very little, if
    any, risk of harm to anyone or anything.  The fact that the firearm in my
    hypothetical is unloaded, clearly a scenario contemplated by s. 95, significantly,
    in my view, decreases the risk of harm posed by the conduct described in my
    reasonable hypothetical.  It is certainly arguable that a loaded gun always
    poses an immediate danger.  The same cannot be said of an unloaded gun in the
    possession of a licensed gun owner who has ammunition stored nearby.

[166]

The offender in
    my reasonable hypothetical is morally culpable in that he acts with the
    requisite knowledge of the elements of the offence.  The offender knows that he
    or she is in possession of a restricted firearm and that the possession is not
    authorized at the place where he or she is in possession.  Given the strict
    terms on which licences to possess restricted and prohibited firearms are
    given, a knowing breach of those terms is a morally blameworthy act.

[167]

The level of moral
    blameworthiness, however, as with the blameworthiness that knowledge of the possession
    of a narcotic imputes, depends on a number of variables, all of which fall
    within the broad scope of the offence as defined in s. 95.  Knowledge that one
    has an unloaded restricted firearm safely stored in ones cottage with useable
    ammunition readily accessible in the next room, coupled with the knowledge that
    under the terms of ones licence, the firearm should be kept in ones dwelling,
    attracts a very different level of moral blameworthiness than does the
    knowledge of the person standing on the street corner with a loaded gun in his
    back pocket for which he knows he has no kind of authorization and which he
    intends to use as he sees fit.  Section 95 is written so broadly as to capture
    offenders with both levels of moral blameworthiness.  My reasonable
    hypothetical focuses on the less blameworthy category of potential offender.

[168]

I would also
    rank the moral culpability of the offender in my reasonable hypothetical below
    the moral culpability of persons who engage in activities with firearms that demonstrate
    a wanton or reckless disregard for the lives or safety of others.  Offenders in
    the reasonable hypotheticals described in
Morrisey
are, in my view,
    more morally culpable than the reasonable hypothetical offender I describe.

[169]

In my view, a
    three-year minimum penitentiary term for an offender in my reasonable
    hypothetical is well beyond any punishment that would be considered
    proportionate to the gravity of the offence committed in the reasonable
    hypothetical.  A three-year penitentiary sentence for what is essentially a
    violation of a term of a licence, albeit a knowing violation, is unheard of in
    Canada.  Even accepting that the unique dangers posed by prohibited and
    restricted firearms could justify a mandatory jail sentence for what is in
    essence a licensing offence, a sentence of three years goes well beyond what could
    be justified for such an offence under any penal theory.  A three-year
    penitentiary sentence is grossly disproportionate to the severity of the
    offence described in my reasonable hypothetical.

[170]

A comparison of
    the mandatory minimum required in s. 95 with the sentences available for
    related crimes, another factor identified as relevant in the gross
    disproportionality analysis, confirms my view that the three-year mandatory
    minimum is grossly disproportionate.  I will consider ss. 92 and 93.  Both
    provisions apply to all firearms, including prohibited and restricted firearms,
    and both provisions describe offences that are very similar to the offence set
    out in s. 95.

[171]

Section 92
    creates an offence that applies to anyone who is in possession of a prohibited
    or restricted firearm knowing that the person is not a holder of a licence or
    registration certificate.  As I read the offence described in s. 92, it applies
    to offenders who, to their knowledge, have no licence or registration
    certificate referable to the firearm.  Section 92 does not require that the
    firearm be loaded or that useable ammunition be readily available.

[172]

Section 92
    carries no minimum penalty for a first offence.  There are minimum penalties
    for second (one year) and subsequent (two years less one day) offences.

[173]

The offence
    described in s. 93 applies in circumstances that are very similar to the facts
    of my reasonable hypothetical.  Section 93 applies to a person who has a
    licence for a restricted or prohibited firearm, but has possession of that
    weapon at a place not authorized under the licence.  Section 93, unlike s. 95,
    does not require that the firearm be loaded or that ammunition be readily
    available.
[20]

[174]

Section 93, like
    s. 95, is a hybrid offence.  If the Crown proceeds by indictment, the maximum
    penalty is five years.  There is no minimum penalty under s. 93 regardless of
    whether the Crown proceeds by indictment or summarily.

[175]

The relatively minor
    distinctions between the conduct addressed in ss. 92 and 93, and the conduct in
    s. 95 does not explain the vast differences in the range of penalties available
    for the offences and, in particular, the three-year starting point for a s. 95
    offence.  I stress, again, that s. 95 does not require that the firearm be
    loaded or that the person in possession of the firearm have any intention of
    loading the firearm.  The presence of useable ammunition stored in a nearby drawer
    strikes me as a totally inadequate basis upon which to move from an offence
    under ss. 92 or 93 carrying no minimum penalty to one demanding a three-year
    penitentiary term.

[176]

I do not propose
    to address the other factors relevant to the gross disproportionality
    analysis.  In my view, the cavernous disconnect between the severity of the
    offence as described in my reasonable hypothetical and a three-year
    penitentiary sentence is determinative of the s. 12 analysis.  The severity of
    the s. 95 minimum when compared to the range of sentences available for similar
    offences serves to confirm my conclusion.  Even taking into account factors
    such as parole that would mitigate the effect of the three-year sentence, I
    remain convinced that it is grossly disproportionate in the reasonable
    hypothetical I have drawn.  The three-year mandatory minimum upon conviction
    for a s. 95(1) offence constitutes cruel and unusual punishment.

(vi)

The Application of Section 1 to the Section 12 Breach

[177]

All rights and
    freedoms guaranteed by the
Charter
are subject to the limitation in s.
    1:

The
Canadian Charter of Rights and Freedoms
guarantees
    the rights and freedoms set out in it subject only to such reasonable limits
    prescribed by law as can be demonstrably justified in a free and democratic
    society.

[178]

The format of
    the s. 1 analysis is well known:
e.g.
see
Smickle
(reasons of Molloy J.)
, at paras. 97-123.
    I do not propose to go through the steps of that analysis.  Given the very high
    bar set for a finding that a sentence constitutes cruel and unusual punishment,
    I find it very difficult to imagine how a sentence that clears that high bar
    could ever qualify as a reasonable limit demonstrably justified in a free and
    democratic society.

[179]

In essence, s. 1
    permits what would otherwise be infringements of individual constitutional
    rights where the societal benefits flowing from the state action that infringes
    individual rights can demonstrably justify that infringement.  In my view,
    the basic
quid pro quo
underlying s. 1 does not exist where the state
    imposes punishment that is so excessive as to outrage standards of decency
    and so disproportionate as to be abhorrent or intolerable to Canadians:
Ferguson
,
    at para. 14.  What possible societal benefit could render such punishment
    demonstrably justified in a free and democratic society?

[180]

No system of
    criminal justice that would resort to punishments that outrage standards of
    decency in the name of furthering the goals of deterrence and denunciation
    could ever hope to maintain the respect and support of its citizenry.
    Similarly, no system of criminal justice that would make exposure to a draconian
    mandatory minimum penalty, the cost an accused must pay to go to trial on the
    merits of the charge, could pretend to have any fidelity to the search for the
    truth in the criminal justice system.

[181]

If an argument
    can be made that could justify sheltering a sentence that amounted to cruel and
    unusual punishment under s. 1, I have not heard it.  The mandatory minimum penalty
    of three years imposed under s. 95(2)(a) cannot be saved by s. 1.

IV

the section 15 challenge

[182]

I agree with the
    analysis and conclusion of the trial judge, at paras. 74-82.  There is no
    breach of s. 15.

V

the section 7 challenge

[183]

Unlike the ss.
    12 and 15 challenges, the s. 7 challenge does not take issue directly with the
    mandatory minimum penalty.  Rather, it challenges the gap in the sentencing
    provisions in s. 95(2).  As outlined above, if the Crown proceeds by
    indictment, an accused is liable to a three-year minimum penalty (s.
    95(2)(a)).  If the Crown proceeds summarily, the accused is liable to a
    one-year maximum penalty (s. 95(2)(b)).  Consequently, regardless of how the
    Crown proceeds, an accused cannot receive a jail sentence of between one year plus
    one day and three years less one day.  The trial judge focused on this gap in
    his s. 7 analysis.

[184]

Section 7
    provides:

Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the
    principles of fundamental justice.

A:  The reasons of the trial judge

[185]

At para. 123, the
    trial judge first considered and rejected the submission that a scheme which
    creates a mandatory minimum penalty dependent upon the Crown election violated
    s. 7 of the
Charter
.  He then went on to hold that the two-year
    sentencing gap created by the provisions in s. 95(2) did contravene s. 7.  He
    opined that the two-year gap rendered s. 95(2) an arbitrary limitation on the
    liberty of persons charged under s. 95.  The trial judge said, at para. 131:

I am satisfied that the two year gap is inconsistent with the
    true legislative purposes that underlie s. 95.  It severely restricts the
    flexibility of hybrid procedures, it will inevitably lead to unfit sentences in
    the low and mid- range of s. 95 cases, and it puts the three-year mandatory
    minimum sentence, when proceeding by indictment, at constitutional risk.  These
    are all irrational purposes and effects.  There is simply no clear connection
    between the legislative goal of the 2008 reforms and the two year gap in the
    sentencing scheme.  It appears to have been a mere legislative oversight, which
    Parliament would quickly have corrected by raising the summary conviction
    maximum sentence to three years, had the oversight been pointed out.

[186]

The trial judge identified
    s. 95(2)(b), the provision which limited the maximum penalty to one year where
    the Crown proceeded summarily, as the constitutionally offensive part of s.
    95(2).  In his view, however, the appellant had no standing to challenge s.
    95(2)(b) as the Crown would not have proceeded summarily against the appellant
    regardless of the maximum penalty available on a summary conviction proceeding.
    As the appellant had no standing to raise the challenge, the trial judge dismissed
    the s. 7 claim.

[187]

I do not
    understand the Crown to support the trial judges standing analysis.  As I am
    satisfied that the two-year gap referred to by the trial judge does not
    infringe s. 7, I propose to address the merits of the s. 7 argument and to
    assume that the appellant has the necessary standing to raise the argument.

b. the arguments on appeal

[188]

There are two s.
    7 arguments raised on appeal.  One relies on the trial judges analysis and
    focuses on the two-year gap in the sentencing options available, depending on
    whether the Crown proceeds summarily or by indictment.  The other s. 7 argument
    contends that the s. 95 scheme is unconstitutional because it gives the Crown
    the power to decide that the s. 95 charge will proceed by indictment, thereby bringing
    into play a mandatory minimum penalty.  This argument was most forcefully put
    forward by the Advocates Society, one of the interveners.  I will address this
    argument first.

(i)

Is a mandatory minimum triggered by the Crowns decision to proceed by
    indictment contrary to s. 7?

[189]

Counsel for the
    Advocates Society submits that legislation that combines the creation of a hybrid
    offence with a minimum penalty applicable if the Crown proceeds by indictment
    is contrary to s. 7 and must
be struck
    down under s. 52
.  Counsel submits that the scheme created by s.
    95 offends s. 7 of the
Charter
, first, because it does not require the
    Crown to explain or justify its election to proceed by indictment in a public
    and transparent manner and, second, because it allows the Crown, by electing to
    proceed by indictment, to substantially determine, dictate, and choose
    the sentence to be imposed.

[190]

I would reject
    both submissions.  The exercise of Crown discretion throughout the criminal
    process, including the choice of the mode of trial where Parliament provides
    that an offence is punishable by indictment or summarily, is a longstanding and
    essential component of the fair and efficient operation of the criminal justice
    system:  see
R. v. Beare; R. v. Higgins
, [1988] 2 S.C.R. 387, at p.
    411; and
R. v. Smythe
, [1971] S.C.R. 680, at pp. 685-86.

[191]

In exercising
    prosecutorial discretion in matters like the decision to proceed to trial, or
    the choice of mode of trial, the Crown must act independently, including
    independently of judicial influence and oversight.  As explained in
Krieger
    v. Law Society of Alberta
, 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 32:

The quasi-judicial function of the Attorney General cannot be
    subjected to interference from parties who are not as competent to consider the
    various factors involved in making a decision to prosecute.
To subject such decisions
    to political interference, or to judicial supervision, could erode the
    integrity of our system of prosecution.
Clearly drawn
    constitutional lines are necessary in areas subject to such grave potential
    conflict.  [Emphasis added.]

[192]

The submission
    that the Crown is constitutionally required to explain or justify its election
    as to the mode of trial to a judge implies some form of judicial oversight over
    the exercise of that discretion.  Any such oversight could only blur the
    important and constitutionally fundamental distinction between the role of the
    prosecutor and the role of the judiciary and potentially undermine the
    independence of both:
R. v. T. (V.)
, [1992] 1 S.C.R. 749, at p. 761.

[193]

The argument
    that the Crown determines the sentence to be imposed when it elects to proceed
    by indictment in the face of a mandatory minimum misses the distinction between
    Crown decisions that affect the sentence ultimately imposed and Parliaments determination
    as to the range of sentences that will be available to a trial judge.  Several decisions
    made by the Crown will influence the range of sentence available to the trial
    judge and the ultimate sentence imposed by the trial judge.  For example, a
    prosecutors determination as to which charge to prosecute, the mode of
    procedure to be followed, and the aggravating factors to be proved on sentencing,
    may all have a significant influence on the ultimate sentence imposed by the
    trial judge.  In exercising his or her prosecutorial discretion, however, the Crown
    does not dictate or choose the sentence to be imposed.  Parliament
    determines the range of sentences available to the trial judge.

[194]

This court
    addressed and rejected this very argument in
Gill
, at para. 49.  In
Gill
,
    the appellant challenged a mandatory minimum sentence triggered by the Crowns
    decision on sentencing to prove a prior conviction for the same offence.  It
    was argued that in exercising this discretion, the Crown effectively pre-empted
    the trial judges sentencing discretion.  This court said:

The Crown is no more limiting the sentencing discretion of a
    trial judge when it chooses to prove the notice under s. 727 than it is when it
    chooses to prove the use of a firearm in the commission of certain offences;
    chooses to charge an offence that attracts a minimum penalty; or
chooses to proceed by
    indictment when that procedure attracts a greater minimum penalty.  In each
    instance, it can be said that the Crowns action limits the sentencing judges
    discretion in the sense that, but for the Crowns actions, a minimum penalty
    would not apply.  The exercise of the Crowns discretion, however, has the
    effect of limiting the judges sentencing discretion because of the statutory
    provisions enacted by Parliament.  It is those provisions that limit the trial
    judges sentencing discretion.
As the Supreme Court of
    Canada made clear in
Ferguson
and again in
Nasogaluak
[citations omitted], unless minimum penalties are unconstitutional, judges must
    accept them and impose sentences that fall within the range fixed by
    Parliament.  [Emphasis added.]

[195]

In holding that s. 95 does not contravene s. 7 because it
    combines a hybrid procedure with a mandatory minimum penalty if the Crown
    proceeds by indictment, I do not suggest that the Crowns election as to the
    mode of proceeding is beyond
Charter
review.  The Crowns election to proceed by indictment in a given case will
    impact on the accuseds liberty interest and can be challenged as a breach of
    s. 7.  The accused may seek a case-specific remedy under s. 24(1) of the
Charter
.

[196]

The scope of review on a s. 7 challenge will
    necessarily be circumscribed by the need to maintain the constitutionally
    rooted distinction between the prosecutorial
and judicial roles in
    the criminal justice system.  That distinction, itself a principle of
    fundamental justice, must inform any s. 7 claim challenging the exercise of
    prosecutorial discretion: see
Gill
, at para. 57; and
Sriskandarajah
    v. United States of America
, 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 27.

(ii)

Does the two-year gap make section 95 arbitrary?

[197]

Legislation that
    limits an individuals liberty in an arbitrary manner is contrary to the
    principles of fundamental justice and infringes s. 7 of the
Charter
.
    A law is arbitrary for the purposes of s. 7 if the effect of the challenged law
    bears no relation to, or is inconsistent with, the legislative objective of the
    challenged law:  see
Bedford v. Canada
, 2012 ONCA 186,
282 C.C.C. (3d) 1, at paras. 145-47, leave
    to appeal to S.C.C. granted October 25, 2012: [2012] S.C.C.A. No. 159.

[198]

An assessment of
    the merits of an arbitrariness claim must begin with a clear understanding of
    the objective or purpose animating the impugned legislation.  As explained
    earlier in these reasons, s. 95 is part of a package of legislation presented
    by various governments over the last 20 years in response to the very real and
    increasing societal danger posed by the proliferation of illegal firearms and
    the escalation of gun-related violence and other criminal activity.  Parliaments
    response to this pressing societal concern has included an expansion of the
    reach of the criminal law and the creation of sentencing ranges for firearm-related
    offences that place a premium on deterrence and denunciation.  Punitive, mandatory
    minimum penalties have become a central feature of sentencing for gun-related
    crimes.  The certainty of severe punishment for those convicted of gun-related
    crimes, such as s. 95 offences, is intended to maximize deterrence and
    denunciation.  In short, s. 95, with its three-year mandatory minimum in
    particular, has as its objectives the deterrence and denunciation of
    gun-related criminal activity and the incapacitation of those who engage in
    that activity.

[199]

Parliaments
    decision to make s. 95 a hybrid offence, punishable by a maximum of one year if
    the Crown proceeds summarily, tends to diminish or undermine the deterrence/denunciation
    objective of s. 95 in that it reduces the certainty of significant punishment
    upon conviction.  However, no one suggests that Parliament has offended any
    constitutional provision by creating a summary proceeding safety valve for
    those s. 95 cases in which a three-year penalty would be clearly unwarranted.
    In providing the summary proceedings option, Parliament no doubt recognized
    that given the very wide net cast by s. 95, there would be some cases where the
    imposition of a three-year sentence in the name of deterrence and denunciation would
    be entirely inappropriate and unnecessary.

[200]

The appellant
    submits, relying on the trial judges reasons, that once Parliament decided that
    a summary proceeding was an appropriate option for some s. 95 prosecutions, Parliament
    was constitutionally required to frame that option in a manner that provided
    for the potential imposition of the full range of sentencing options up to the three-year
    minimum imposed if the Crown proceeded by indictment.  I do not agree.
    Parliament decided that despite the need to stress deterrence and denunciation in
    the vast majority of s. 95 prosecutions, there were some s. 95 prosecutions
    where those factors could not justify a mandatory minimum.  Parliament identified
    those cases as those in which a sentence of up to one year would be appropriate.
    By framing the summary proceeding option as it did, Parliament clearly sought
    to ensure that the vast majority of s. 95 offences would be prosecuted by indictment
    and would attract the certainty of a three-year minimum sentence. That
    certainty served the denunciatory and deterrence goals of the provision.  By
    framing the summary proceeding option narrowly, Parliament sought to minimize
    the dilution of the denunciation/deterrence message.  In my view, a limited
    summary proceeding option is entirely consistent with the purpose of s. 95.

[201]

I agree with the
    trial judge who observed, at para. 131, that by providing for a maximum of one
    year if the Crown proceeds summarily, Parliament had severely restrict[ed] the
    flexibility of hybrid procedures.  However, in my view, that restriction is not
    arbitrary in the constitutional sense, but is instead consistent with the
    deterrence and denunciation objectives of s. 95.  The more narrow the summary
    proceeding option, the stronger the deterrence/denunciation message.

[202]

I also agree
    with the trial judge that the scheme in s. 95(2) inevitably means that some
    persons will receive unfit sentences.  Persons who under the generally
    applicable sentencing provisions might have received sentences of between one
    and three years, will receive sentences of three years if the Crown proceeds by
    indictment.  I do not see this as any evidence that the section acts
    arbitrarily.  Mandatory minimums inevitably mean that some offenders will
    receive sentences that would be considered unfit using generally applicable sentencing
    principles.  Those potentially unfit sentences become a constitutional problem
    only if the unfitness reaches the level of gross disproportionality.

[203]

Nor, in my view,
    does the risk that the Crown will elect to proceed summarily in a case
    deserving a sentence of more than one year raise a s. 7 problem.  The
    imposition of a shorter sentence than the offender deserved strikes me as a
    strange infringement on that offenders liberty.

[204]

In summary, in
    making s. 95 a hybrid offence punishable by a maximum of one year if the Crown
    proceeds summarily, Parliament sought to provide an appropriate procedure for
    those few s. 95 cases where the circumstances do not warrant pursuing the goals
    of deterrence and denunciation through the imposition of at least a three-year
    jail term.  In framing the summary proceeding option as it did, Parliament
    sought to limit the option to cases where the appropriate penalty was clearly
    well below the three-year minimum provided in indictable proceedings.  By limiting
    the summary conviction option, Parliament further emphasized the objective of
    s. 95: the deterrence and denunciation of gun-related criminal activity.

VI

conclusion

[205]

I have found that
    the three-year minimum penalty imposed by s. 95 is unconstitutional because, as
    I understand the reasonable hypothetical methodology, the constitutionality of
    the minimum penalty must be measured against a hypothetical at what I have called
    the regulatory end of the s. 95 spectrum.  Having concluded that the mandatory
    minimum offends s. 12, s. 52 of the
Constitution Act, 1982
demands
    that the section be held to be of no force or effect.  My analysis, of
    course, leaves untouched the 10-year maximum penalty under s. 95(2)(a).

[206]

Nor do my
    reasons have any significant impact on the determination of the appropriate
    sentence for those s. 95 offences at what I have described as the true crime
    end of the s. 95 spectrum.  Individuals who have loaded restricted or
    prohibited firearms that they have no business possessing anywhere or at any
    time, and who are engaged in criminal conduct or conduct that poses a danger to
    others should continue to receive exemplary sentences that will emphasize
    deterrence and denunciation.  Thus, as outlined earlier, and regardless of the
    three-year minimum penalty, this appellant, despite the mitigating factors,
    could well have received a sentence of three years.

[207]

For the reasons
    set out above, I would declare s. 95(2)(a)(i) of no force or effect to the
    extent that it imposes a mandatory three-year minimum term of imprisonment when
    the Crown proceeds by indictment.

[208]

As the trial
    judge effectively imposed a sentence of time served, there is no reason to
    alter that disposition.  I would, therefore, affirm the sentence imposed by the
    trial judge.

Released: DD NOV 12 2013

Doherty J.A.

I agree S.T. Goudge J.A.

I agree E.A. Cronk J.A.

I agree R.A. Blair J.A.

I agree M. Tulloch J.A.

[1]
Section 719(3.1), which
    limits credit for pre-sentence custody to a maximum of one and one-half to one,
    did not apply to the appellants sentencing.

[2]
Subsection 95(3) exempts from criminal liability persons who are using the
    firearm under the direct and immediate supervision of a person who is
    lawfully entitled to possess the firearm and use it in the manner in which it
    is being used.

[3]
Section 95 is one of four
    offences presently found in the
Criminal Code
with respect to which
    the Crown has an election and for which there is a mandatory minimum if the
    Crown proceeds by indictment, but no mandatory minimum if the Crown proceeds
    summarily:  see s. 96 (possession of weapon obtained by commission of offence),
    s. 102 (making an automatic handgun) and s. 333.1 (theft of a motor vehicle).
    None of those offences have a gap between the mandatory minimum if the Crown
    proceeds by indictment and the maximum penalty if the Crown proceeds summarily.

[4]
Some firearms, such as
    antique firearms, are excluded from the definition of firearms for the purposes
    of certain sections of the
Criminal Code
including s. 95:  see s.
    84(3).

[5]
Handgun is also defined in s. 84 of the
Criminal Code
.

[6]
The definition of weapon in s. 2 of the
Criminal Code
includes any
    object that falls within the meaning of the word firearm:  see
R. v. Felawka
,
    [1993] 4 S.C.R. 199; and
R. v. Dunn
,
    2013 ONCA 539.

[7]
The provincial Crown in
MacDonald
,
joined by the Attorney General for Canada, has argued in its factum in the
    Supreme Court of Canada, that knowledge that the possession is unauthorized is
    not an element of the
mens rea
of the offence created by s. 95 (Factum
    of the Appellant, at para. 5).  I do not understand the Attorney General to
    take that position here.  Counsel for the appellant in this case, in making his
    s. 12 argument, appears to agree with the position taken by the Crown in
MacDonald
.
    I agree with the analysis of MacDonald C.J.N.S., speaking for a unanimous
    court, on this issue:
MacDonald
,
    at paras. 77-96
.

[8]
See Allan Manson, Arbitrary Disproportionality: A New
Charter
Standard for Measuring the Constitutionality of Mandatory Minimum Sentences
    (2012) 57 S.C.L.R. (2d) 173, at pp. 200-202. Professor Manson would introduce
    as a principle of fundamental justice the concept of arbitrary
    disproportionality which, as far as I can tell, would render unconstitutional
    any provision capable of yielding an unfit sentence.

[9]
Parliament has recently
    re-introduced minimum penalties for the importation of drugs into Canada.  The
    current provisions, however, draw distinctions based on the nature of the drug
    and the amount imported:  see
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19, as amended by the
Safe Streets and Communities Act
,
    S.C. 2012, c. 1.

[10]
The
Abolition of Early Parole Act
does not alter the eligibility dates
    for day parole or full parole of persons convicted under s. 95.  However, the Act
    apparently produces administrative and procedural changes in the parole process
    that can result in longer periods of incarceration before release on day parole
    or full parole. See
Corrections and Conditional Release Statistical Overview
(2012 Annual Report), at p. 83.

[11]
The trial judge took this approach, in part, to address the Crowns submission
    that the appellants
Charter
motion was moot if the appellant would
    have received a sentence of three years regardless of the existence of the
    minimum:  see
Nur
(reasons of Code J.), at para. 37. I do not understand
    the Crown to have taken that position on appeal.

[12]
The appellant is subject
    to the mandatory minimum and given the potential inflationary effect of
    mandatory minimums (see
Morrisey
, at para. 82,
per
Arbour J.,
    concurring), any sentence he might receive for his conviction under s. 95 could
    be affected by the existence of the mandatory minimum.  His standing to
    challenge the mandatory minimum is beyond doubt.

[13]
Except for Professor Hogg, academic commentary has criticized the retreat from
Smith
:
    see Kent Roach, Searching for
Smith
:  The Constitutionality of
    Mandatory Sentences (2001) 39 Osgoode Hall L.J. 367, at p. 369; Lisa
    Dufraimont,
R. v. Ferguson
and the Search for a Coherent Approach to
    Mandatory Minimum Sentences Under Section 12 (2008) 42 S.C.L.R. (2d) 459, at p.
    472; Benjamin L. Berger, A More Lasting Comfort?  The Politics of Minimum
    Sentences, The Rule of Law and
R. v. Ferguson
 (2009) 47 S.C.L.R. (2d)
    101, at p. 103; and Allan Manson, Arbitrary Disproportionality:  A New
Charter
Standard for Measuring the Constitutionality of Mandatory Minimum Sentences
    (2012) 57 S.C.L.R. (2d) 173, at pp. 178-81.

[14]
Justice McLachlin, in
    dissent, at p. 526, reasoned that the majority approach effectively read down
    s. 88 and addressed only one part of the statutory scheme that gave rise to the
    challenged mandatory minimum seven-day sentence for driving while prohibited.

[15]
The same approach is
    evident in
R. v. Wiles
, 2005 SCC 84, [2005] 3 S.C.R. 895.  The court
    considered the constitutionality of a mandatory weapons prohibition applicable
    upon conviction for any of several enumerated indictable offences by reference
    only to the indictable offence for which the accused had been convicted.

[16]
The court considered the
    mandatory minimum penalties in
Latimer
and
Ferguson
.
    However, in
Latimer
, the appellant did not rely on the reasonable
    hypothetical arm of the gross disproportionality analysis, and in
Ferguson
,
    the appellants attempt in the Supreme Court of Canada to make arguments based
    on reasonable hypotheticals when those arguments were not made in the courts
    below was summarily rejected.

[17]
Justice Arbour, in a
    concurring judgment joined by McLachlin C.J., argued that because the offence
    of criminal negligence causing death could arise in so many different
    situations, the court should address the question of whether the minimum
    penalty was unconstitutional on a case-by-case basis.  In her view, it was not
    unconstitutional as applied to the accused in
Ferguson
.

[18]
This variation on the
    facts from
Snobelen
is taken from the trial judges reasons in
Smickle
,
    at para. 111.

[19]
The Crowns authority to
    elect to proceed summarily at the outset of a proceeding can be compared to the
    three strikes legislation in California, considered in
Ewing v.
    California
,
538 U.S. 11
    (2003): see Cal. Penal Code
§
17(b) (West 2012).  Under
    that legislation, which imposes severe sentences upon conviction for a third
    felony, the trial judge has discretion at the time of sentence to reduce
    certain less serious felonies (known as wobblers) to misdemeanours and,
    thereby, avoid the minimum penalties that flow from the third felony
    conviction:  see also s. 113 of the
Criminal Code
,
which gives trial judges very limited
    discretion, based on findings of fact made at the time of sentencing, to
    relieve against the mandatory minimum weapons prohibition imposed by s. 109.

[20]
Section 93 is also
    distinguishable from s. 95 in that the onus is on the accused to show that he
    or she is the holder of a licence or authorization under s. 93:  see
Criminal
    Code
,
s. 117.11.