Struck Down by Ontario Judge Mandatory Minimum Sentence

14 Oct, 2012

In the latest blow to the Harper government’s tough-on- crime agenda, in July an Ontario judge has struck down mandatory minimum sentencing for first-offence firearms trafficking.

The landmark ruling in an Oshawa courthouse centered on the case of a 21-year-old co- caine dealer, who faced the mandatory three-year sentence after offering to sell an undercover policeman a .45 caliber handgun—despite having no access to the gun nor any inten- tion to carry through on the sale.
His lawyer, Jeffrey Mazin, challenged the constitutionality of the sentence, calling it ‘cruel and unusual punishment’. While Justice Paul Bellefontaine did not agree the prison term was grossly disproportionate for he offender, who has racked up numerous convictions over the years, he deemed the law in a broader sense to be fundamentally unconstitutional.

“Parliament has imposed a minimum penalty that addresses a worst case offence but which grossly over penalizes the many lesser ways that the same crime can be committed,” Judge Belle-fontaine wrote in his 20-page ruling. “The minimum three-year sentence does not address the different degrees of moral blameworthiness associated with the different circumstances under which the offence can be committed.”

In addition to dropping the offender’s sentence on the fire- arms issue to one year, Judge Bellefontaine declared Section 99 (2) (a) of the Criminal Code—which sets out a three-year minimum sentence for first-offence firearms trafficking—to be “invalid and of no force and effect.”

This is the second recent setback for the federal government’s Tackling Violent Crime Act, which strengthened bail provisions and increased mandatory sentences for serious firearms offences. In February, a Superior Court judge struck down another amended section of the Criminal Code that mandated a three-year minimum for a first offence loaded firearm possession conviction. The Crown is appealing that decision.

“This ruling demonstrates that not all offences involving firearms, real or imagined, should carry the same penalty,” Jeffrey Mazin said. “In this case, it was found that my client neither had the inclination nor the wherewithal to go through with the sale. It’s a victory for Charter rights in this country.”

The National Post 

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