Thursday, January 05, 2006

Election Canada 2006: Harper's new gun-crime policy (via the Globe and Mail): unconstitutional?

Harper's new gun-crime policies may offend the Charter of Rights. First the story from the Globe and Mail:

A Conservative government would undertake a sweeping series of reforms aimed at toughening Canada's justice system, starting with imposition of mandatory minimum prison terms of between five and 10 years for people convicted of major firearms offences, Stephen Harper said today.


The Conservative plan also calls for a mandatory sentence of five years for possession of a loaded restricted or prohibited weapon such as a handgun.

Let me be one of the first, if not the first, to suggest that Harper's new proposed "tough on crime" legislation could be ruled unconstitutional by the Supreme Court.

I personally find minimum sentences appealing. In fact, the idea of imprisoning people for 5 years for possessing a handgun does not bother me. But it may offend the Charter.

There is a little section (s.12) in the Charter that reads, "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."Under historical evidence, this right was to prevent treatment and punishment via torture or prolonged agony.

However, the Supreme Court of Canada, in R. v. Smith [1987], ruled that a minimum mandatory sentence (of 7 years for narcotics possession) violated s.12 of the Charter. As Justice Wilson put it,"
"The arbitrary nature of the mandatory minimum sentence is fundamental to its designation as cruel and unusual under s. 12 of the Charter. The seven-year minimum sentence is not per se cruel and unusual but it becomes so because it must be imposed regardless of the circumstances of the offence or the offender."

It seems that a punishment "so excessive as to outrage standards of decency" would warrant a contravention of s. 12.

Which begs the question, is Harper's proposal against the Charter?

- It may indeed be. It could be argued that possessing an illegal gun does not justify 5 years in prison. In fact, I would be surprised if such a law holds up in Canada's Supreme Court. There are many circumstances where possession of a firearm can get tricky: finding an illegal gun in a car owned by a person unrelated to the gun, a person who used to have an illegal weapon but whose fingerprints are still on it, etc. But even besides all these points, the policy remains to be debated: is 5 years for gun possession cruel and unusual? Is it too excessive?

- One way for Harper to actually test such a tricky law is submit the question to the Courts in terms of a reference. Such a measure is terribly underused by Parliament. The reason such a reference exists - and should exist - is to provide Canadians with laws that are consistent with each other. Otherwise, people could be paying a price of liberty (ie. being in jail for a law that should be illegal) for sloppy legislation.

The rule of law requires clarity and consistency in order for humans to plan their actions and realize their bounds of liberty. Harper's plan, in legal not political terms, needs to be tested by the Courts. It may just be unconstitutional.

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