R. v. Charles

R. v. Charles Collection Decisions of the Court of Appeal Date 2013-11-12 Neutral citation 2013 ONCA 681 Docket numbers C54111 Judges Doherty, David H.; Goudge, Stephen Thomas; Cronk, Eleanore Ann; Blair, Robert Ashley; Tulloch, Michael H. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Charles, 2013 ONCA 681 DATE: 20131112 DOCKET: C54111 Doherty, Goudge, Cronk, Blair and Tulloch JJ.A. BETWEEN Her Majesty the Queen Respondent and Sidney Charles Appellant Michael Dineen and Carlos Rippell, for the appellant Riun Shandler and Andreea Baiasu, for the respondent Moiz Rahman and Nancy Dennison, for the intervener, the Attorney General of Canada Heard: February 21-22, 2013 On appeal from the sentence imposed by Justice Nancy L. Backhouse of the Superior Court of Justice, dated December 13, 2010, with reasons reported at 2010 ONSC 5437. Cronk J.A.: I. Introduction [1] Section 95(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) makes it an offence to possess certain types of firearms without the requisite authorization or licence and firearms registration certificate. This sentence appeal involves a constitutional challenge to the five-year mandatory minimum sentence of imprisonment imposed by s. 95(2)(a)(ii) of the Code, when the Crown proceeds by way of indictment, upon conviction for a second or subsequent offence. This court is required to consider whether the statutory scheme governing the five-year mandatory minimum penalty violates ss. 7 or 12 of the Charter of Rights and Freedoms (the “Charter”). [2] Section 95(1) is a hybrid offence. The Crown may elect to proceed summarily or by way of indictment. Under s. 95(2)(a), when the Crown elects to proceed by way of indictment, a person convicted of a s. 95(1) firearms offence is subject to a mandatory minimum sentence of three years’ imprisonment for a first offence and five years’ imprisonment for a “second or subsequent offence”. [3] Section 84(5)(a) identifies the offences that constitute “earlier offence[s]” for the purpose of s. 95(2). If a person convicted of a s. 95(1) offence was previously convicted of any offence listed in s. 84(5)(a) (including an offence under s. 95(1)), the listed offence is deemed to be an earlier or prior offence for the purpose of determining whether the s. 95(1) offence is a “second or subsequent offence” punishable by the five-year mandatory minimum jail term provided for under s. 95(2). [4] In addition, s. 84(6) provides that, for the purpose of s. 84(5)(a), the only question to be considered is the sequence of convictions and “no consideration shall be given to the sequence of commission of offences, or whether any offence occurred before or after any conviction”. [5] In this case, following a Crown prosecution by way of indictment, the appellant Sidney Charles was convicted of possession of a loaded, prohibited firearm, contrary to s. 95(1), together with a series of other firearms-related offences. At the time of his convictions, Charles had two prior convictions that qualified as earlier offences under s. 84(5)(a), thus triggering the five-year mandatory minimum penalty. [6] On sentencing, Charles challenged the Crown’s invocation of this penalty under ss. 7, 9 and 12 of the Charter. The sentencing judge dismissed his Charter claims and sentenced Charles to a total of seven years’ imprisonment, less five years’ credit for pre-sentence custody. [7] Charles seeks leave to appeal sentence and, if leave be granted, appeals from his sentence. Before this court, he renews his argument that the inclusion in s. 84(5)(a), for the purpose of s. 95(2), of what he describes as “less serious offences that do not involve firearms” offends ss. 7 and 12 of the Charter, particularly when viewed in light of s. 84(6) of the Code. [8] This appeal was heard together with five other appeals involving aspects of the mandatory minimum sentencing regime under the Code for firearms offences. In some of those cases, as in this case, the constitutionality of s. 95(2) was attacked on various grounds. [9] In particular, in R. v. Nur[1] this court ruled that the three-year mandatory minimum sentence imposed by s. 95(2)(a)(i) upon a first conviction for a s. 95(1) offence, when the Crown proceeds by way of indictment, constitutes cruel and unusual punishment within the meaning of s. 12, and cannot be saved by s. 1, of the Charter. [10] I regard the reasoning in Nur as essentially dispositive of Charles’ s. 12 Charter claim. I conclude that, like the mandatory minimum penalty of three years’ imprisonment provided for under s. 95(2)(a)(i) upon first conviction for a s. 95(1) offence, the five-year mandatory minimum sentence imposed by s. 95(2)(a)(ii) upon conviction for a s. 95(1) offence that constitutes a second or subsequent offence amounts to cruel and unusual punishment that cannot be salvaged by s. 1 of the Charter. [11] I reach a different conclusion concerning the s. 7 constitutional challenge. In my opinion, that challenge must fail in this case. [12] Accordingly, for the reasons that follow, I would declare s. 95(2)(a)(ii) of the Code of no force and effect to the extent that it imposes a mandatory minimum sentence of five years’ imprisonment for a second or subsequent offence when the Crown proceeds by indictment. I would not give effect to the s. 7 Charter challenge. Because Charles does not challenge his sentence on non-constitutional grounds, and since, without regard to any mandatory minimum, I view his sentence as entirely fit in all the circumstances, I would grant leave to appeal sentence and affirm the sentence imposed by the sentencing judge. II. Relevant Statutory Provisions [13] Sections 95(1) and (2) of the Code provide: 95.(1) Subject to subsection (3), 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. (2) Every person who commits an offence under subsection (1) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, three years, and (ii) in the case of a second or subsequent offence, five years; or (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year. [14] Sections 84(5)(a) and 84(6) of the Code state, in material part: 84(5) In determining, for the purpose of subsection 85(3), 95(2), 99(2), 100(2) or 103(2), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under section 85, 95, 96, 98, 98.1, 99, 100, 102 or 103 or subsection 117.01(1); … However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody. 84(6) For the purpose of subsection (5), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences, or whether any offence occurred before or after any conviction. [15] Sections 84(5)(a) and 84(6) must be read together to identify those circumstances in which the five-year mandatory minimum in s. 95(2)(a)(ii) is engaged. Section 84(5)(a) lists a number of offences. If an offender in the 10 years prior to his conviction on a s. 95(1) offence was convicted of any of the listed offences, the s. 95(1) offence is a “second or subsequent offence” that attracts the five-year mandatory minimum. Thus, in this case, as I will explain, because Charles had been convicted of offences under ss. 85(2) and 117.01(1) in the 10 years prior to his s. 95(1) offence, the latter offence was a “second or subsequent offence”. [16] Section 84(6) speaks to the timing of the prior offence. Unlike the common law rule, which requires that an accused be convicted and sentenced prior to the commission of the second or subsequent offence, s. 84(6) makes the sequence of convictions the only consideration in determining whether a conviction is a ‘prior offence’. For example, if an offender is convicted and sentenced on a s. 85 charge before he is sentenced on a s. 95(1) charge, the s. 85 conviction is an earlier offence and the five-year mandatory minimum would apply on the s. 95(1) sentencing even if the s. 85 offence was committed after the s. 95(1) offence. III. Background Facts (1) Charles’ Section 95(1) Offence [17] In the spring of 2008, Charles and another man, Roy Griffiths, were both residing in a Toronto rooming house. In the early morning hours of May 18, 2008, one of Mr. Griffiths’ relatives contacted 911 to report an incident at the rooming house. The police attended at the residence, secured the scene from the outside, and telephoned Mr. Griffiths to direct him to exit the house. [18] Shortly thereafter, members of the Toronto Police Service Emergency Task Force arrived and searched the house. They seized a Ruger semi-automatic handgun and ammunition from Charles’ bedroom. The firearm was equipped with an over-capacity magazine (a prohibited device under the Code), containing 13 rounds of live 9mm ammunition. A 14th round of ammunition was found on Charles’ bed, near the gun. All the seized ammunition was capable of being fired from the gun. In addition, the serial number on the gun had been removed. Charles admitted to the police that he did not have a licence to possess a firearm and did not hold a current registration certificate for the firearm. [19] Charles was arrested and charged with various firearms-related offences. The Crown elected to proceed by way of indictment, rather than summarily. On January 20, 2010, Charles pleaded guilty to possession of a loaded, prohibited firearm, contrary to s. 95(1) of the Code. He also pleaded guilty to charges of possession of a firearm knowing that the serial number had been defaced, contrary to s. 108(1)(b); possession of a firearm while subject to a firearms prohibition order, contrary to s. 117.01(1), and without being the holder of a licence, contrary to s. 91(1); and possession of ammunition while subject to a firearms prohibition order, also contrary to s. 117.01(1). (2) Charles’ Earlier Offences [20] At the time of his convictions on the charged offences, Charles had a lengthy and serious criminal record. It included approximately 20 prior convictions, five of which involved crimes of violence. Five additional convictions concerned firearms-related offences. [21] Two of Charles’ prior convictions are particularly germane to the issues on appeal. In 2004, Charles had pleaded guilty to robbing an employment agency, together with three accomplices, while using an imitation firearm and having his face masked with intent to commit an indictable offence, contrary to s. 85(2) of the Code. He was sentenced on a joint submission to 18 and one-half months’ imprisonment on each count, concurrent, after credit of four and one-half months for pre-sentence custody. [22] As well, approximately two years earlier, in 2002, Charles had pleaded guilty to a charge of possession of ammunition while subject to a firearms prohibition order, contrary to s. 117.01(1) of the Code. This charge arose from a dispute between Charles and his grandmother regarding a gun. When the police arrived at the residence in question, they conducted a consensual search of the premises and discovered a locked box containing a single .38 calibre bullet, together with several of Charles’ identification documents. When the police subsequently realized that Charles was subject to a firearms prohibition order, they returned to the residence to arrest him. On a search incident to arrest, Charles was found in possession of a large quantity of crack cocaine, electronic scales, a cell phone, scissors and a screwdriver. He was charged with possession of ammunition contrary to a prohibition order and possession of cocaine for the purpose of trafficking. Although the record before this court is less than clear, it appears that Charles was sentenced to a total of two months’ imprisonment on each charge, concurrent, plus 96 days’ credit for pre-sentence custody. [23] Offences under ss. 117.01(1) and 85(2) are listed offences under s. 84(5)(a). Charles’ prior convictions under these sections therefore constituted earlier or prior offences for the purpose of determining, under s. 95(2), whether he had committed a second or subsequent offence. As a result, each of these prior convictions triggered the five-year mandatory minimum sentence imposed by s. 95(2)(a)(ii). [24] As I have indicated, s. 84(6) provides that for the purpose of s. 84(5), the sequence of convictions, rather than the sequence of commission of the offences, governs. In this case, Charles’ ss. 117.01(1) and 85(2) convictions occurred several years before his s. 95(1) conviction. Consequently, his s. 95(1) conviction in 2010 was a second or subsequent offence, triggering the mandatory minimum penalty of five years’ imprisonment. On these facts, Charles’ prior convictions qualify as “earlier” offences under both s. 84(6) and the narrower common law rule. (3) The Sentencing Hearing [25] On sentencing, Charles resisted the Crown’s invocation of the five-year mandatory minimum penalty. He applied for a declaration that ss. 84(5)(a) and 95(2)(a)(ii), in combination, offend ss. 7, 9 and 12 of the Charter, especially when viewed in light of s. 84(6). This argument was based on the inclusion in s. 84(5)(a) of offences that do not involve the possession of actual firearms, as earlier offences for the purpose of s. 95(2). [26] Before the sentencing judge, Charles focused his constitutional challenge on s. 12 of the Charter. Defence counsel at trial (not counsel on appeal) conceded that the determination of the s. 12 Charter claim was dispositive of Charles’ ss. 7 and 9 Charter challenges. Given this concession, the sentencing judge did not address the latter two claims. [27] The sentencing judge dismissed Charles’ s. 12 Charter challenge. She held that the five-year mandatory minimum penalty imposed by s. 95(2)(a)(ii) was not grossly disproportionate for Charles, given the gravity of his crimes. Further, in her view, Charles had failed to posit any reasonable hypothetical circumstances in which the application of the five-year mandatory minimum penalty upon conviction for a s. 95(1) offence, after having been convicted of an offence under ss. 85(2) or 117.01(1), would be rendered grossly disproportionate. In the result, she sentenced Charles to seven years’ imprisonment, less five years’ credit for two years, six months and 18 days’ pre-sentence custody. IV. Issues [28] The primary issue on appeal is whether the five-year mandatory minimum term of imprisonment imposed by s. 95(2)(a)(ii) offends ss. 7 or 12 of the Charter by reason of the inclusion in s. 84(5)(a), as earlier offences for the purpose of s. 95(2), of offences that do not directly involve the unauthorized possession of actual firearms. If the five-year mandatory minimum penalty does violate ss. 7 or 12 of the Charter, the second issue is whether the constitutional infringement can be justified by s. 1 of the Charter. V. Analysis (1) Section 12 Charter Challenge [29] I begin with the s. 12 Charter challenge. [30] Section 12 of the Charter provides: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [31] Charles argues that ss. 95(2)(a)(ii) and 84(5)(a), in combination, constitute cruel and unusual punishment, contrary to s. 12 of the Charter, particularly when read in light of s. 84(6). He acknowledges that the five-year mandatory minimum penalty is constitutionally valid in his own case, but attacks the penalty based on its application to reasonable hypotheticals. [32] At the outset, I note that the analysis of the s. 12 Charter challenge in this case begins, and indeed ends, with this court’s decision in Nur. Given the decision in Nur, it is unnecessary to address many of the s. 12 Charter arguments advanced by the parties in respect of the s. 95(2) five-year mandatory minimum penalty. [33] In Nur, Doherty J.A., writing for a unanimous court, reviewed the legislative context, purpose and scope of s. 95 in detail. I will refer to his s. 12 Charter analysis of s. 95 only to the extent necessary to address the s. 12 constitutional challenge advanced in this case. (i) Background to Section 12 Inquiry [34] The purpose of s. 95 is described by Doherty J.A. in Nur, at para. 55, in these terms: 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. [35] Justice Doherty continued, at para. 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. [Citations omitted.] [36] Thus, Nur holds that s. 95 is anchored in a constitutionally valid legislative purpose and a means that is rationally connected to that purpose. However, it does not automatically follow that the means chosen to achieve a valid legislative purpose is itself constitutional. To the contrary, the means chosen by Parliament to achieve a valid purpose may result in effects that infringe the Charter. Accordingly, the constitutionality of Parliament’s chosen means must be evaluated under s. 12 of the Charter: see R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1071; Nur, at para. 58. [37] In Nur, the means at issue was the three-year mandatory minimum penalty of imprisonment imposed by s. 95(2)(a)(i). In this case, it is the five-year mandatory minimum penalty imposed by s. 95(2)(a)(ii) for second or subsequent offences. (ii) Constituent Elements of Section 12 Inquiry [38] Section 12 of the Charter protects against cruel and unusual treatment or punishment inflicted by the state. “Cruel and unusual punishment” in this context refers to “a punishment that is so beyond what would be a proper or proportionate punishment as to be grossly disproportionate” (citations omitted): Nur, at para. 64. [39] Accordingly, the standard for constitutional review under s. 12 of the Charter is one of gross disproportionality. Where a punishment is merely excessive or disproportionate, s. 12 of the Charter affords no remedy: Smith, at p. 1072; R. v. Goltz, [1991] 3 S.C.R. 485, at p. 501; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26. [40] As explained in Nur, at paras. 75-77, in any given case a claim that a statutorily-imposed punishment offends s. 12 of the Charter must be evaluated in two steps. The first step is case-specific. It requires a determination whether the punishment is grossly disproportionate when applied to the particular accused before the court, in the particular circumstances of the case: Smith, at p. 1073; Goltz, at p. 505; Nur, at para. 75. [41] The second step is more broadly cast. It obliges the court to assess, if the particular facts of the case do not warrant a finding of gross disproportionality, whether the punishment is rendered grossly disproportionate on application to reasonable hypotheticals: Goltz, at pp. 505-06; Nur, at para. 76. (iii) The Nur Gross Disproportionality Inquiry [42] Nur stresses, at paras. 49-53, that examination of the ambit of s. 95 is essential to the s. 12 Charter analysis. Justice Doherty reasoned, at para. 51, that the scope of s. 95 may best be understood by reference to the range of potential offenders caught by the provision. In this connection, a distinction must be drawn between those offenders who engage in dangerous and criminal conduct and those offenders whose conduct cannot be said to pose any real risk to the public. [43] As explained by Doherty J.A. in Nur, at para. 51, at one end of the spectrum stands the offender who engages in truly criminal conduct and poses a real and immediate danger to the public by habitually carrying a loaded prohibited or restricted firearm in public places to further his or her criminal activity. In contrast, at the other end of the spectrum stands the offender who engages in misconduct that may be viewed as regulatory in nature. The Nur court pointed, for example, at para. 51, to an otherwise law-abiding, responsible gun owner who knowingly has possession of an unloaded, restricted or prohibited firearm, but with readily accessible ammunition stored nearby, at a place that falls outside the terms of his or her firearms licence and registration certificate. This offender’s conduct was described in Nur, at para. 51, as misconduct “in the nature of a regulatory offence”. [44] Applying this conceptual framework to Nur and the circumstances of his crime, this court concluded that the appropriate range of sentences for Nur’s conduct extended from a maximum reformatory sentence to a penitentiary term of imprisonment of up to three years. Axiomatically, as the applicable range included a three-year sentence, the three-year mandatory minimum penalty prescribed by s. 95(2)(a)(i) was not grossly disproportionate for Nur. Thus, the challenged three-year mandatory minimum penalty survived the particularized first step of the gross disproportionality inquiry. [45] However, the Nur court reached a different conclusion at the reasonable hypotheticals step of its gross disproportionality inquiry. It is important to the evaluation of the s. 12 Charter claim in this case to appreciate the key elements of the reasonable hypotheticals analysis in Nur. That analysis proceeded in the following fashion. [46] First, after considering the leading authorities, including Smith, Goltz, Morrisey and R. v. Brown, [1994] 3 S.C.R. 749, Doherty J.A. held in Nur, at para. 142: [A]fter 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 triggers 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. [47] Second, the reasonable hypotheticals inquiry requires close scrutiny of the scope of the offence defined in s. 95(1). As noted in Nur, at para. 149, the s. 95(1) offence “is not limited to loaded, restricted or prohibited firearms, but instead extends to such firearms even when unloaded if ammunition is readily accessible”. For this reason, Nur holds that liability under s. 95(1) based on an unloaded firearm with ammunition stored nearby cannot be excluded as a reasonable hypothetical in determining whether s. 95(2) offends s. 12 of the Charter. [48] Third, given these considerations, Doherty J.A. concluded, at para. 150 of Nur, that the s. 95 reasonable hypothetical has the following three characteristics: (1) the accused is knowingly in possession of an unloaded, restricted or prohibited firearm with useable ammunition stored nearby and readily accessible; (2) 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 (3) 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. [49] Fourth, the Nur court then tested the s. 95(2) three-year mandatory minimum penalty against its formulation of the s. 95 reasonable hypothetical with the three characteristics described above. The court concluded, at para. 169, that a three-year mandatory minimum penitentiary term for an offender in the posited reasonable hypothetical is “well beyond any punishment that would be considered proportionate to the gravity of the offence committed in the reasonable hypothetical”. Justice Doherty put it this way, at para. 176: 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 for a s. 95(1) offence constitutes cruel and unusual punishment. [50] Finally, in the view of the Nur court, the mandatory minimum penalty of three years could not be saved by s. 1 of the Charter. As a result, in accordance with s. 52 of the Constitution Act, 1982, the court declared the section to be of no force and effect, to the extent of the three-year mandatory minimum penalty triggered when the Crown prosecutes a s. 95(1) offence by indictment. [51] I turn now to apply the Nur reasonable hypothetical principles to this case. (iv) The Gross Disproportionality Inquiry in this Case (a) The Particularized Inquiry [52] The particularized step of the gross disproportionality inquiry under s. 12 of the Charter requires consideration of the gravity of the offence, the particular circumstances of the case, the personal characteristics of the offender, the effects of the sentence actually imposed on the specific offender, a comparison of the punishments imposed for other similar crimes in the same jurisdiction, whether the punishment is necessary to achieve a valid penal purpose and whether it is founded on recognized sentencing principles, and whether valid alternatives exist to the punishment in question: Smith, at p 1073; Goltz, at p. 505; Morrisey, at paras. 27-28; Nur, at para. 78. [53] In this case, Charles concedes that a five-year sentence is not grossly disproportionate for his s. 95(1) offence. I agree. [54] As I have said, Charles pleaded guilty to possession of a loaded, prohibited firearm with nearby readily accessible ammunition. The firearm in question was equipped with an illegal over-capacity magazine containing several rounds of live ammunition. An additional round of ammunition was readily at hand, near the gun on Charles’ bed. All the ammunition was capable of use in the gun. The serial number on the gun had been removed and Charles was not licensed to possess the firearm. Nor did he hold a current registration certificate for the gun. [55] Moreover, the weapon and the ammunition were found in a bedroom of a rooming house where other persons resided and to which other residents may have had access. Both the loaded gun and the extra ammunition were found in plain view on Charles’ bed. [56] On these undisputed facts, there is no doubt that these serious offences are among the category of offences that Doherty J.A. described in Nur as reflecting “truly criminal conduct” that poses “a real and immediate danger to the public.” Charles’ misconduct had nothing to do with mere regulatory offences. To the contrary, Charles armed himself with a loaded semi-automatic handgun equipped with a prohibited magazine. [57] Recall also that at the time of his conviction for his s. 95(1) offence, Charles had an extensive criminal record with multiple prior convictions relating to firearms. He was in breach of two firearms prohibition orders and was subject to a lifetime ban on the possession of firearms. One of his prior convictions, which I described earlier in these reasons, involved robbery with an imitation firearm. An additional five convictions involved crimes of violence. Based on his antecedents, the sentencing judge aptly described Charles’ life as one committed to crime. Virtually no mitigating factors were identified. [58] In all these circumstances, there can be no serious dispute that Charles’ crimes demanded a substantial penitentiary sentence. Indeed, in my opinion, such a sentence was inevitable, even in the absence of a five-year mandatory minimum penalty. The sentencing judge observed, “[i]t is not cruel and unusual punishment to receive a minimum [sentence] of [five] years for repeated offences involving firearms, weapons or prohibited ammunition. These are all serious crimes.” For this offender, I agree. [59] I therefore see no basis on which to conclude, at the particularized inquiry stage of the gross disproportionality analysis, that s. 95(2)(a)(ii) offends s. 12 of the Charter. (b) The Reasonable Hypotheticals Inquiry [60] Charles argues that the inclusion of “non-firearm” offences in s. 84(5)(a) (for example, use of an imitation firearm during the commission of a robbery and breach of a firearms prohibition order) as earlier or prior offences for the triggering of the enhanced five-year mandatory minimum penalty violates s. 12 of the Charter. This argument, of course, was made without the benefit of this court’s reasons in Nur. [61] I make two preliminary comments. First, the characteristics of the reasonable hypothetical posited in Nur bear no relation to the facts of this case. Nor are they related to the facts in Nur. Nonetheless, for the reasons advanced in Nur, in order to withstand constitutional scrutiny under s. 12 of the Charter, the five-year mandatory minimum penalty must be tested against a reasonable hypothetical that takes account of both the broad reach and the hybrid nature of the s. 95(1) offence. [62] Second, by operation of s. 95(2)(a)(i), when the Crown elects to proceed by indictment, a first conviction for a s. 95(1) offence triggers a three-year mandatory minimum sentence. Nur holds that this penalty constitutes cruel and unusual punishment, contrary to s. 12 of the Charter, because it will produce a grossly disproportionate sentence in reasonable hypothetical circumstances. [63] The five-year mandatory minimum penalty applies only to second or subsequent offences. It presupposes that the s. 95(1) offender has previously been convicted and sentenced for a prior offence identified in s. 84(5)(a). If a three-year mandatory minimum sentence on conviction for a first s. 95(1) offence cannot withstand s. 12 Charter scrutiny, it is difficult to conceive that a five-year mandatory minimum sentence on conviction for a second or subsequent offence can somehow transcend constitutional infirmity. [64] The question of the appropriate reasonable hypothetical against which to test the five year mandatory minimum penalty is a pivotal one. The answer begins with the reasonable hypothetical in Nur. [65] Nur holds that a three-year mandatory minimum penalty is grossly disproportionate – and hence, unconstitutional – in the Nur reasonable hypothetical for a first offence under s. 95(1). Given the decision in Nur, and using the Nur reasonable hypothetical, the question becomes whether a five-year mandatory minimum penalty is grossly disproportionate for the Nur reasonable hypothetical offender who has a conviction in the prior 10 years for any of the offences listed in s. 84(5)(a). [66] As in Nur with respect to the three-year mandatory minimum penalty imposed by s. 95(2)(a)(i), I conclude that the five-year mandatory minimum penalty imposed by s. 95(2)(a)(ii) does not survive constitutional scrutiny when tested against this modified reasonable hypothetical. I say this for the following reasons. [67] In Nur, at para. 78, drawing on the established s. 12 Charter jurisprudence, Doherty J.A. identified those factors that inform the gross disproportionality inquiry, both as it applies to the particularized first step and the reasonable hypotheticals second step of that inquiry. At the reasonable hypotheticals step, he placed predominate emphasis on the gravity of the offence as the crucial, if not determinative, consideration in Nur: at para. 164. [68] With respect to this factor, Doherty J.A. held as follows, at paras. 165-168, regarding the reasonable hypothetical that he employed to test the three-year mandatory minimum: (1) the fact that the firearm in the reasonable hypothetical is unloaded, significantly decreases the risk of harm posed by the misconduct at issue in the reasonable hypothetical (at para. 165); (2) the offender in the reasonable hypothetical is morally culpable in the sense that he or she is in knowing, unauthorized possession of a restricted firearm, at the place of possession (at para. 166); and (3) while the conduct captured by s. 95(1) includes offenders with varying levels of moral blame-worthiness, the reasonable hypothetical focuses on the less blameworthy category of potential offender. The moral culpability of the offender in the reasonable hypothetical ranks below that of persons who engage in firearms activities that “demonstrate a wanton or reckless disregard for the lives or safety of others” (at paras. 166-68). [69] Based on this assessment of the seriousness of the offence and the moral culpability of the offender in the Nur reasonable hypothetical, Doherty J.A. concluded, at para. 169, that a three-year mandatory minimum penitentiary term, for what is in essence a licensing offence, goes well beyond what could be justified for such an offence under any penological goals and sentencing principles. He therefore held that the challenged three-year penitentiary sentence is “grossly disproportionate to the severity of the offence” described in the Nur reasonable hypothetical. [70] I regard this reasoning as apposite to the testing of the five-year mandatory minimum penalty against the modified reasonable hypothetical that I have described. [71] I note, however, that the moral culpability of the offender in the modified reasonable hypothetical is higher than that of the offender described in the Nur reasonable hypothetical. The offender in the modified reasonable hypothetical is a repeat offender who has been convicted of a s. 95(1) offence and, as well, has previously been convicted and sentenced for an offence listed in s. 84(5)(a). It need hardly be said that breaking the law twice attracts a higher level of moral blameworthiness and, hence, a lengthier sentence. [72] That said, the moral culpability of the offender in the modified reasonable hypothetical remains below that of persons who engage in firearms activities that “demonstrate a wanton or reckless disregard for the lives or safety of others”: see Nur, at para. 168. The s. 95(1) offence in the modified reasonable hypothetical remains in the nature of a licensing offence. [73] Further, I again emphasize that if the three-year mandatory minimum sentence is grossly disproportionate on conviction for a first s. 95(1) offence in the Nur reasonable hypothetical, it defies logic and principle to conclude that a five-year mandatory minimum penalty is constitutionally valid simply because the s. 95(1) offender has also been previously convicted and sentenced for a s. 84(5) listed offence. For example, if eight years prior to conviction for a regulatory offence of the type envisaged by the Nur reasonable hypothetical, an offender was convicted and sentenced under s. 117.01(1) for breach of a prohibition order, the prior s. 117.01(1) offence would trigger the five-year mandatory minimum penalty. A five-year penitentiary sentence in these circumstances, in my view, would clearly be grossly disproportionate to the gravity of the offence. [74] In my opinion, a five-year penitentiary sentence for an offender in the modified Nur reasonable hypothetical significantly exceeds any punishment that would be regarded as proportionate to the gravity of the offence committed in the modified reasonable hypothetical. Nor, as in Nur, can such a sentence be justified under any established penal theory, even accepting that a second or subsequent offence mandates an augmented penalty for what, in essence, is regulatory misconduct. [75] I therefore conclude that the s. 95(2) mandatory minimum sentence of five years’ imprisonment cannot survive s. 12 Charter scrutiny when tested against the s. 95(2)(a)(ii) modified reasonable hypothetical. Further, for the reasons expressed in Nur, at paras. 177-181, this constitutional violation cannot be saved under s. 1 of the Charter. (2) Section 7 Charter Challenge [76] Section 7 of the Charter states: 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. [77] Charles argues that the inclusion of “less serious and non-firearm related offences” in s. 84(5)(a) is contrary to the principles of fundamental justice. He submits that the inclusion of such offences in s. 84(5)(a) renders that section overbroad. He also contends that the manner in which s. 84(6) addresses earlier or prior offences for the purpose of s. 84(5)(a) is arbitrary, inconsistent with the purpose of the five year mandatory minimum penalty, and produces unjustifiable sentencing disparities between similarly situated offenders. [78] I would reject the s. 7 Charter challenge in this case for several reasons. [79] First, having concluded that the s. 95(2) five-year mandatory minimum penalty constitutes cruel and unusual punishment, contrary to s. 12 of the Charter, and that this constitutional violation cannot be justified under s. 1, it is unnecessary to address Charles’ s. 7 Charter claim. If, as I would hold, the s. 95(2) five-year mandatory minimum penalty contravenes s. 12 and cannot be saved by s. 1 of the Charter, the fact that it may also violate s. 7 of the Charter is of little practical consequence. [80] Second, as I noted earlier in these reasons, Charles conceded at his sentencing hearing that the determination of his s. 12 Charter claim was dispositive of his ss. 7 and 9 Charter challenges. This court should be reluctant to permit Charles to revive and reframe on appeal a constitutional claim that he effectively compromised or abandoned on sentencing. This is especially so where, as here, the effect of this approach is to deprive this court of the benefit of the sentencing judge’s analysis of the s. 7 Charter challenge. [81] Third, I am also mindful of the Supreme Court of Canada’s caution in R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, that the issue of punishment should be addressed under a s. 12 Charter gross disproportionality analysis. A majority of the Supreme Court held, at para. 160: Is there then a principle of fundamental justice embedded in s. 7 that would give rise to a constitutional remedy against a punishment that does not infringe s. 12? We do not think so. To find that gross and excessive disproportionality of punishment is required under s. 12 but a lesser degree of proportionality suffices under s. 7 would render incoherent the scheme of interconnected “legal rights” set out in ss. 7 to 14 of the Charter by attributing contradictory standards to ss. 12 and 7 in relation to the same subject matter. Such a result, in our view, would be unacceptable. [82] The majority of the Malmo-Levine court went on to observe, at para. 161, that even if the constitutionality of a punishment should be considered under s. 7 of the Charter, instead of s. 12, the result would be the same. In both cases, the constitutional standard is gross disproportionality. Thus, the conclusion in this case that the s. 95(2) five-year mandatory minimum penalty breaches s. 12 of the Charter is dispositive of any claim of grossly disproportionate infringement of liberty. See R. v. Gill, 2012 ONCA 607, 112 O.R. (3d) 423. [83] In this case, relying on Malmo-Levine, the respondent, the Attorney General for Ontario, submits that notwithstanding Charles’ attempt to fashion a free-standing s. 7 Charter argument on appeal, the critical focus of Charles’ constitutional attack should properly remain on the s. 12 Charter gross proportionality inquiry. The respondent stresses that the key question raised on appeal is whether the increased mandatory minimum punishment of five years’ imprisonment mandated by s. 95(2)(a)(ii) for a second or subsequent offence constitutes cruel and unusual punishment in the form of a grossly disproportionate sentence. I agree. [84] That said, a statutory provision like s. 95(2)(a)(ii), which imposes a mandatory minimum sentence of imprisonment, engages s. 7 of the Charter. In Nur, at para. 61, this court noted: “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.” I did not understand the respondent or the intervener, the Attorney General of Canada, to argue to the contrary. (i) The Arbitrariness Claim [85] Charles argues that where the order of commission of offences is irrelevant, as under s. 84(6), the increased s. 95(2) five-year mandatory minimum sentence cannot be justified on the basis of its deterrent effect. He asserts in his factum: For subsequent offences to attract higher penalties and act as a deterrent, it is common sense that the offender must have been tried and punished before the second offence to which the escalating penalty applies is committed. [86] Charles further submits that s. 84(6) is arbitrary because it produces unjustified sentencing anomalies that run contrary to the purpose of the five-year mandatory minimum penalty and the principle of parity in sentencing set out in s. 718.2(6) of the Code.[2] [87] However, the feature of s. 84(6) said to render it arbitrary is not engaged on the facts of this case. As I have said, Charles was convicted and sentenced for his ss. 117.01(1) and 85(2) offences many years before his conviction for the s. 95(1) offence of possessing a loaded, prohibited firearm. On any definition, therefore, both of Charles’ prior offences are “earlier offence[s]”. [88] In addition, and importantly, Charles has not formally challenged the constitutionality of s. 84(6). Rather, he relies on the alleged effects of s. 84(6) to attack the constitutionality of s. 84(5)(a) and the s. 95(2) five-year mandatory minimum penalty. [89] In these circumstances, I agree with the respondent’s submission that any consideration whether s. 84(6) is arbitrary and whether its effects offend s. 7 of the Charter are more appropriately considered in a case where this provision operates to subject an offender to the s. 95(2) five-year mandatory minimum sentence. (ii) The Overbreadth Claim [90] I turn, finally, to Charles’ overbreadth claim in relation to s. 84(5)(a). [91] The overbreadth component of the s. 7 Charter challenge rests on the proposition, repeatedly emphasized by Charles in his submissions, that some offences listed in s. 84(5)(a) (like breach of a prohibition order and use of an imitation firearm in the commission of an indictable offence), are “non-firearm” offences that are not sufficiently serious to trigger an enhanced penalty under s. 95(2). Based on this characterization of these offences, Charles contends that their inclusion in s. 84(5)(a) renders that provision impermissibly overbroad. [92] I do not accept the contention that the violation of a firearms prohibition order and the use of an imitation firearm during the course of a robbery are properly to be regarded as “non-firearm” offences. Nor do I agree that they are not serious offences. [93] It is true that an offence under s. 85(2) does not involve the use of an actual firearm. The gravamen of the offence is the use of an imitation firearm while committing or attempting to commit an indictable offence. Similarly, as in this case, the breach of a firearms prohibition order may, but need not, involve the possession of an actual firearm. Only in this limited sense, in my opinion, can it be said that offences under ss. 85(2) and 117.01(1) are “non-firearm” offences. [94] But to regard offences under ss. 117.01(1) and 85(2) in this fashion minimizes the seriousness of the conduct prohibited by these provisions. It also ignores the purpose of the provisions and their role in Parliament’s firearms control scheme, established in part by ss. 84(5)(a), 84(6) and 95 of the Code. [95] Offences under ss. 85(2) and 117.01(1) are serious. That Parliament so regards s. 85(2) offences is evidenced by the penalties that attach to these offences under the Code. A first s. 85(2) conviction, for example, attracts a minimum sentence of one year and a maximum sentence of 14 years in jail. In the case of a second or subsequent conviction for a s. 85(2) offence, Parliament has decreed that a minimum sentence of three years and a maximum sentence of 14 years’ imprisonment apply: s. 85(3) of the Code. [96] The facts of this case provide a useful illustration of the gravity of an offence under s. 85(2). Charles was convicted of the use of an imitation firearm during the robbery of an employment agency when the manager and various employees of the agency were present. On the facts admitted at trial following a partial preliminary inquiry, Charles and three accomplices entered the agency at about 11:00 a.m. on a business day. Each of the four men was brandishing what appeared to be a gun. They were also wearing bandanas on their faces. Two of the men jumped over a counter, shouted for everyone not to move, waved their guns and pointed their weapons at the manager. The manager testified that he and his two female co-workers were very scared. After the robbers obtained a box of papers from the manager’s desk, they fled the scene. Charles was apprehended by the police shortly thereafter. [97] On these admitted facts, there can be no doubt that Charles’ conduct was very serious. He engaged in a robbery in a public place, during business hours, when innocent people were in attendance. Although none of the agency employees was injured, they did not know that Charles’ weapon was an imitation firearm that could not be used to shoot them. They were understandably frightened. Indeed, one of the employees collapsed on the floor in fear when the guns were pointed at the agency manager. As the Attorney General of Canada submits: “A robbery with an imitation firearm may be just as terrifying [as a robbery involving real firearms] for its victims who may not have the ability, while being held at gunpoint, to appreciate that the firearm being used is not real.” [98] This, in fact, is what occurred in the robbery in which Charles was involved. Insofar as the victims of that crime knew, they were being robbed at gunpoint with the threat of imminent violence. The fact that Charles’ gun was an imitation rather than a real gun in no way diminishes the gravity of his conduct or its devastating effect on his victims. [99] This very point was made in R. v. Steele, 2007 SCC 36, [2007] S.C.J. No. 36. In that case, the Supreme Court confirmed that the twin purposes of s. 85, including s. 85(2), are to prevent the danger of serious injury or death associated with the use of firearms and victim alarm and psychological trauma. The court indicated, at para. 23: “The use of a firearm in the commission of a crime exacerbates its terrorizing effects, whether the firearm is real or a mere imitation. Indeed, they share that very purpose.” [100] Nor, in my view, can it be suggested that Charles’ prior conviction under s. 117.01(1) was simply a minor offence. While only a small amount of ammunition was discovered by the police on that occasion, the purpose of ammunition is for use in firearms. The illegal possession of ammunition cannot be disassociated from its potential use. Prevention of the illegal possession of ammunition – especially by someone who is prohibited from having it – therefore serves a significant public safety function. There is an important societal interest in seeking to prevent repeat offenders who are subject to firearms prohibition orders from continuing to commit gun crimes. [101] Moreover, in this case, during the subsequent police search incident to his arrest, Charles was found in possession of a significant amount of crack cocaine. The dangers to public safety posed by the availability of firearms or ammunition in association with drugs are well known. [102] In addition, as the Attorney General of Canada stresses, an offence under s. 117.01(1) always requires an offender to breach a court order prohibiting him or her from possessing firearms, ammunition or other dangerous items. The breach of a firearms prohibition order is no trifling matter. In R. v. Wiles, [2005] 3 S.C.R. 895, Charron J. explained, at para. 9: “[t]he mandatory prohibition relates to a recognized sentencing goal – the protection of the public. … The state interest in reducing the misuse of weapons is valid and important.” [103] A challenged law is constitutionally overbroad when it deprives an offender of his or her s. 7 Charter rights more than is necessary to achieve Parliament’s objectives: Canada (Attorney General) v. Bedford, 2012 ONCA 186, 282 C.C.C. (3d) 1, leave to appeal to S.C.C. granted, [2012] S.C.C.A. No. 159, at para. 148; R. v. Heywood, [1994] 3 S.C.R. 761, at p. 793. The purpose of s. 95 of the Code is clear. It is useful to recall what Doherty J.A. said in Nur, at para. 198: [Section] 95 is part of a package of legislation presented by various governments over the last 10 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. Parliament’s response to this pressing societal concern has included an expansion of the reach of the criminal law and the creation of sentencing ranges for firearms-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, and in particular the three-year mandatory minimum, has as its objective the deterrence and denunciation of gun-related criminal activity and the incapacitation of those who engage in that activity. See also Nur, at paras. 54-55 and 57. [104] To this I would add that the five-year mandatory minimum penalty under s. 95(2) shares the same objective: “the deterrence and denunciation of gun-related criminal activity and the incapacitation of those who engage in that activity”. [105] Viewed in this fashion, there is a clear link between s. 84(5)(a), and the offences listed in it, and Parliament’s objectives under s. 95(2). Both provisions are designed to respond to what Doherty J.A. aptly described in Nur, in the above-quoted passage, as “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”. [106] In my opinion, Charles has failed to demonstrate any constitutionally impermissible overreach in s. 84(5)(a) arising from the inclusion in that section of offences under ss. 85(2) and 117.01(1), for the stated purpose of determining under s. 95(2) whether a s. 95(1) offender has committed a second or subsequent offence. VI. Disposition [107] For the reasons given, I would declare s. 95(2)(a)(ii) of the Code of no force and effect to the extent that it imposes a mandatory minimum sentence of five years’ imprisonment for a second or subsequent offence when the Crown proceeds by indictment. I would not give effect to the s. 7 Charter challenge in this case. [108] Charles’ ss. 7 and 12 Charter claims were the sole grounds for his sentence appeal. He does not argue that his global sentence is otherwise unfit or the product of an error in principle. Indeed, he has conceded that a sentence of five years’ imprisonment for his s. 95(1) offence alone is appropriate, even without the application of the five-year mandatory minimum penalty. I view the sentence imposed as entirely fit in all the circumstances of this offender and these offences. I would, therefore, grant leave to appeal sentence and affirm the overall sentence imposed by the sentencing judge. Released: “NOV 12 2013” “E.A. Cronk J.A.” “DD” “I agree Doherty J.A.” “I agree S.T. Goudge J.A.” “I agree R.A. Blair J.A.” “I agree M. Tulloch J.A.” [1] This court’s decisions in Nur and the companion appeals are being released contemporaneously with these reasons. [2] Section 718.2(b) reads: “A sentence shall be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”