Canada: Mandatory Minimum Sentences For Firearm Infractions: A Cruel And Unusual Punishment

On April 14, 2015 the Supreme Court of Canada released its decision in R v. Nur, 2015 SCC 15. The 6-3 majority held that the mandatory minimum sentences for possessing prohibited or restricted firearms that are loaded or kept with readily accessible ammunition are unconstitutional.

The mandatory minimum sentences set out in the Criminal Code required at least a three year prison sentence for a first offence and five years for a subsequent offence. The majority held that these mandatory minimums violated the guarantee in s 12 of the Canadian Charter of Rights and Freedoms against cruel and unusual punishment and were not saved by s 1 because they did not satisfy the minimal impairment test.

The case involved two respondents, Hussein Jama Nur and Sidney Charles, who were separately convicted of possession of a loaded, prohibited firearm. Nur and Charles were sentenced to three and five year mandatory minimum imprisonment terms, respectively. On appeal, the Ontario Court of Appeal held that the mandatory minimums were unconstitutional, but that the sentences imposed on Nur and Charles were appropriate. The Attorney General of Ontario and the Attorney General of Canada appealed, and the following constitutional questions were certified by the Court :

  1. Do the mandatory minimum terms of imprisonment in s 95(2)(a)(i) and (ii) of the Criminal Code infringe s 12 of the Charter?
  2. Do the mandatory minimum terms of imprisonment in s 95(2)(a)(i) and (ii) of the Criminal Code infringe s 7 of the Charter?
  3. If so, are they saved under s 1 of the Charter?

Mandatory Minimums Violate Section 12

Writing for the majority, the Chief Justice reasoned that the mandatory minimum sentence required by s 95(2)(a) was not cruel and unusual in most circumstances, including in the cases of Nur and Charles. However, the Chief Justice opined that applying the mandatory minimums in some reasonably foreseeable cases would violate s 12 of the Charter. Section 12 guarantees against cruel and unusual punishment. A sentence will be considered cruel and unusual if it is grossly disproportionate to the appropriate or proportionate sentence. Interestingly, beyond this test for a cruel and unusual sentence, the majority and dissent agreed on little else about the application of s 12.

The majority focused on reasonably foreseeable cases (or "reasonable hypotheticals") in which an individual innocently violates s 95(1) with no harm or risk flowing from the conduct. Although in her decision McLachlin CJ warns against focusing on a particular hypothetical, she imagines a few different examples in which the three year minimum sentence would be grossly disproportionate. One example is that of a licensed gun owner storing his gun and ammunition in his cottage when his license permits him to store it only in his home. Another is the case of a spouse finding herself in possession of her husband's firearm and innocently breaching the regulation.

Because the mandatory minimums were grossly disproportionate in reasonable hypothetical examples, the majority concluded that the mandatory minimums constituted cruel and unusual punishment. Similarly, because the mandatory minimums applied to morally non-blameworthy conduct, they could not be justified under s 1 of the Charter: A minimally impairing mandatory minimum sentence must be drafted to ensure it closely corresponds with significantly morally blameworthy conduct.

In light of the successful s 12 challenge, the majority found it unnecessary to address the s 7 argument.

McLachlin CJ noted that the gross disproportionality test is meant to capture punishments that are more than merely excessive. The majority also observed that grossly disproportionate sentences cannot be justified by the goal of general deterrence.

However, the majority's analysis raised an issue that became a key point of disagreement between the majority and the dissent. Because s 95 is a hybrid offence, the Crown has the discretion to proceed either summarily (with a maximum sentence of one year) or by indictment (with the mandatory minimum). Since the mandatory minimum is not necessarily engaged in the majority's reasonable hypotheticals (because the Crown may elect to proceed summarily), it is not clear that cruel and unusual punishment would ever, in fact, result. Can the majority's reasonable hypothetical approach nevertheless form a legitimate basis for finding the mandatory minimums unconstitutional?

Does the Reasonable Hypothetical Approach Demonstrate Gross Disproportionality?

Writing for a dissent comprised of himself, Rothstein J and Wagner J, Moldaver J levied a two-pronged attack against the reasonable hypothetical approach. As the first prong, the dissent argued that allowing for summary proceedings under s 95 "all but ensures" that minor offences will not attract the mandatory minimum sentence and therefore the majority's reasonable hypotheticals "strain the bounds of credulity" and "are not grounded in experience or common sense".

In support of the dissent's position, Moldaver J appealed first to experience, observing that since s 95 was enacted in 1995 there has not been a single instance of an offence involving little or no moral fault that has been prosecuted by indictment.

Turning to common sense, the dissent endorsed an observation made by Code J in Nur's trial decision: namely, that it is hard to conceive of a reasonable hypothetical that depends on the Crown unreasonably electing to proceed by indictment. The dissent submitted that an application of the reasonable hypothetical approach which ignores the fact that Crown counsel have a sworn duty to act in the public interest does not accord with common sense.

The majority's position was that relying on Crown election is entirely appropriate; however, the judge's role and the prosecutor's role must not be conflated. Hybrid offences are for the purposes of allowing prosecutorial discretion, not judicial discretion. Because it was reasonably foreseeable that the mandatory minimums might require a judge to impose a grossly disproportionate sentence, they were found to be unconstitutional.

Is the Reasonable Hypothetical Approach the Correct Framework for Hybrid Offences?

The second prong of the dissent's attack was to argue that the reasonable hypothetical approach is redundant. As the dissent puts it, when Parliament elected to make s 95 a hybrid offence, they effectively conceded that there were foreseeable cases in which a mandatory minimum would be grossly disproportionate. In light of that fact, the dissent proposed a two-stage framework in which the Court must determine 1) whether the hybrid scheme adequately protects against the imposition of grossly disproportionate sentences in general and 2) whether the Crown has exercised its discretion in a manner that results in a grossly disproportionate sentence for a particular offender, by electing to proceed by indictment.

The majority responded directly to the framework proposed by the dissent, arguing that the framework insufficiently protects against grossly disproportionate sentences, that there is no certainty prosecutorial discretion will always be used to avoid unconstitutional results (and thus the constitutionality of a provision cannot rest on this assumption) and that allowing prosecutors this discretion creates an unfair power imbalance.

The Court is Grappling with the Limits on the Use of Reasonable Hypotheticals

Since the release of R v. Nur the media has consistently commented on the Supreme Court of Canada's now long list of decisions striking down Conservative government laws and, in particular, tough-on-crime legislation. But at the heart of this decision is a fascinating debate about the appropriate constraints on the use of "reasonable hypotheticals" in determining the constitutionality of criminal legislation.

The reasonable hypothetical approach promises to allow judges free reign to consider myriad examples of the application of a law in a way that meaningfully informs the results of the cases before it. The Attorney General appellants in R v. Nur argued that this would create uncertainty and that lawyerly ingenuity would become the only limit on findings of unconstitutionality under s 12. The majority, on the other hand, observed that by confining the Court to consideration of the facts before it, parties gain certainty in cases typical of a particular offence, but at the expense of certainty in cases outside the norm.

The use of "reasonable hypotheticals" also seems to undermine the Mackay v. Manitoba, [1989] 2 SCR 357 line of cases, which required that constitutional adjudication had to rest on an appropriate factual record, and that "Charter decisions should not and must not be made in a factual vacuum". While the Court may take judicial notice of some of the broad social facts in relation to the impugned statute, which could allow the Court to rely on "reasonable hypotheticals", the Court should be prudent to do so when, as discussed by the minority, there was a total absence of a case where the Crown's discretion was improperly exercised, leading to a cruel and unusual punishment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions