Ontario Court Strikes Gun Sentence Law

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Ontario Court of Appeal Strikes Gun Sentence Law

Ontario’s top court ruled Tuesday that a three-year mandatory minimum sentence for gun possession is “grossly disproportionate” and “cruel and unusual punishment.”  The Ontario Court of Appeal ruled that the mandatory minimum sentence for possession of firearms brought in by the Conservative government is unconstitutional.

Enacted by Harper government in the 2008 omnibus bill could see people sent to prison for three years for what would amount to a license violation Ontario’s high court ruled. In such a scenario, there is a stark disconnect with the severity of the sentence, the ruling pointed out. The sentencing laws struck down Section 95, which covered possession of a loaded prohibited or restricted firearm or unloaded with ammunition that was easily accessible.

The five-judge panel ruled that both the three-year mandatory minimum for first offenses and the five-year mandatory minimum for repeat offenses violate Section 12 of the Charter of Rights and Freedoms. The panel did however, restate the Court’s view that firearms offences should still carry substantial jail sentences. The Crown is considering whether to appeal the Ontario ruling, and may take it all the way to the Supreme Court of Canada.

Part of a wider platform to dissuade criminals from having access to firearms, the Conservative government pushed a tough-on-crime agenda following a spate of gun-related violence. In particular, Toronto’s 2005 “Summer of Gun” was heavily referenced by the Tories, to highlight how a large city could be terrorized when firearms become commonplace and were readily accessible. Prior to this drive for harsher and mandatory gun sentences, firearm possession would result in a one-year minimum.

It is noteworthy to point out that the decision to strike down the law was not made based on any of the six appealed cases that the panel of judges heard, but was made for hypothetical and future cases.

Edward Prutschi, one of Toronto’s premier legal analysts and criminal lawyer, was a guest on CTV News to discuss this Ontario Court of Appeal ruling. Mr. Prutschi starts by saying that this is a significant ruling because the five-judge panel decided, after hearing six different cases, that a mandatory minimum sentence for gun possession is cruel and unusual punishment and is therefore unconstitutional.

Mr. Prutshi is then asked to clarify on this loaded legal phrase, “cruel and unusual punishment.” Mr. Prutschi then says what minimum sentences actually do is take away judiciary discretion. What that means is that the presiding judge can no longer independently decide on a case-by-case basis, as the law sets a minimum threshold no matter what the unique circumstances of that particular case are.

The Ontario Court of Appeal ruling says that the Court is uncomfortable with allowing a minimum to constrict judges, who are better equipped with making a ruling because they are well-acquainted with all the facts and considerations of the case. The mandatory minimum sentencing law, the five-judge panel ruling shows, constrained and confined judges and compelled them to hand-down harsh sentences that were unfit for that particular case, and were hence being punished in a cruel and unconstitutional manner.

If you are looking for a Toronto Criminal Lawyer, please contact Adler Bytensky Prutschi Shikhman criminal lawyers.

http://www.ctvnews.ca/video?clipId=1042031