Here’s another “Classic Bob” rant from last year on the decision by Justice Malloy, of the Ontario Court of Justice, striking down the provisions of the Criminal Code imposing a mandatory minimum 3-year sentence for possession of a loaded handgun. Justice Paul Bellefontaine later struck down a related provision on similar grounds last summer:
So, there was story in the Post about the Ontario judge who held that a 3-year minimum sentence for illegal possession of a restricted weapon was “cruel and unusual” punishment, and therefore the mandatory minimum sentence was unconstitutional.
Now, I’m willing to concede that, on the facts of the case of (the unfortunately named) Leroy Smickle, a 3 year sentence was on the harsh side. I’m happy to acknowledge that there are good arguments against mandatory minimum sentences (although, I think there are equally good arguments for them, in some cases). I certainly recognize the undisputed ability of the courts, under the Charter, to strike down laws which impose cruel or unusual punishment. None of that has any relevance here.
What matters here are two things. First, since when does a 3-year sentence constitute “cruel and unusual” punishment? Is it cruel? It isn’t cruel when we sentence repeat drunk drivers to prison for 3 years (as opposed to the much longer sentences they richly deserve). When rapists get 3 or 4 years (or less), no one bemoans the cruelty of such a sentence. The Shafia family will be doing 25 to life, but hey, we’re cool with that. And before we bemoan the “cruelty” of a three-year sentence, keep in mind that under our parole laws, “poor” Mr. Stickle will be out amongst us in 1 year. It’s a harsh sentence, to be sure, but not a cruel one.
Second, is it unusual? Well, in a flippant sense, yes, because in Canada, nobody gets 3 –year sentences for anything. Killed the Pope? Raped a nun? Stole candy from babies? Here’s a slap on the wrist. Then again, that’s precisely the problem that mandatory minimums are designed to address.
More seriously, though, no, a 3-year sentence for gun possession isn’t unusual in any meaningful sense of the word. Canada isn’t alone in imposing mandatory imprisonment for possession of illegal firearms. Canada used to impose a minimum 1-year sentence, and no one said “boo”. Massachusetts has a minimum 1-year sentence. The Labour government in Britain – those brutes – imposed a 5-year minimum for possession of an illegal firearm. In the Cayman Islands, the minimum sentence is 7-years. Should we stop extraditing criminals facing gun charges to the UK on the basis that they’ll be exposed to “cruel and unusual” punishment (a point that judges should be thinking about since the SCC has said that we generally can’t extradited people to face cruel and unusual punishment – note to criminals wanted in the UK on gun crimes, welcome to Canada!). A 3-years for possession of illegal firearms isn’t an “unusual” sentence, by any sense of the imagination.
The test for whether a sentence is “cruel and unusual punishment” isn’t whether you like the sentence. It isn’t whether the sentence is consistent with the sentencing guidelines in the criminal code –after all, what is a minimum sentence if not a particularly strict legislative sentencing guideline? (A point the judge in this case seems to have missed). The test is whether the punishment is “so excessive as to outrage standards of decency” or “grossly disproportionate to what would have been appropriate”. Stoning adulterers is “cruel and unusual punishment”; amputating the hands of thieves is “cruel and unusual punishment”; imprisoning Jean Valjean for 18 years for stealing a loaf of bread is “cruel and unusual punishment”. Any of those sentences would “outrage [the] standards of decency” of Canadians.
A 3-year sentence (of which the accused will actually serve 1 year) for possession of a handgun does not outrage the standards of decency of Canadians. Frankly, I doubt it even excites them. Heck, more Canadians are likely to be outraged that he wasn’t sentenced to a longer term. It may be “excessive”, it may be “disproportionate”, it may even be an inappropriate sentence (although I think reasonable people can disagree on that point which is, of itself, prima facie evidence that it isn’t a “cruel and unusual” sentence), none of that is sufficient basis for striking down the provision in this case. It is not a sentence that is so far outside of the bounds of decency that a lowly Superior Court Judge should take it upon herself to second-guess Parliament in determining what it or is not an appropriate sentence.
I expect that this decision will be overturned on appeal.