Reasons for Judgment — Charron J. (McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Abella JJ. concurring)
Charron J. — Does the mandatory weapons prohibition order under s. 109(1) (c) of the Criminal Code , R.S.C. 1985, c. C-46 , when imposed upon conviction of the offence of production of cannabis, violate the appellant’s right “not to be subjected to any cruel and unusual treatment or punishment” guaranteed by s. 12 of the Canadian Charter of Rights and Freedoms ? If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter ? These are the constitutional questions raised on this appeal.
Mr. Wiles entered a plea of guilty on two charges of unlawfully producing cannabis, contrary to s. 7(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“CDSA ”), the second offence having been committed while he was on release in respect of the first. The marihuana grow operation was discovered on the first occasion when the police responded to a 911 call made accidentally by one of Mr. Wiles’ daughters. At this time, the police noted that Mr. Wiles possessed six firearms, all properly stored and licensed. The firearms were left in his possession. At sentencing, the Crown sought the mandatory prohibition orders under s. 109(1) (c) of the Criminal Code in addition to the sentence jointly agreed upon by counsel. Under the terms of s. 109, a 10-year minimum prohibition order is mandatory upon first conviction of any one of certain enumerated drug offences (s. 109(2)). Upon subsequent convictions, the prohibition order is for life (s. 109(3)). Mr. Wiles challenged the constitutionality of s. 109(1)(c), alleging that the imposition of the mandatory weapons prohibition orders constitutes “cruel and unusual punishment” in violation of s. 12 of the Charter . The relevant legislative and Charter provisions are annexed.
The Crown concedes that a weapons prohibition order constitutes a “treatment or punishment” within the meaning of s. 12 of the Charter . In my view, this concession is well made. Although the purpose of the prohibition order is primarily preventative, in taking away the privilege to possess weapons, it may have some punitive effect on the offender. The question then is whether the loss of this privilege upon conviction of the offence of production is “cruel and unusual”.
This Court has dealt with s. 12 on many occasions and there is no controversy on the test that must be met. Treatment or punishment which is disproportionate or “merely excessive” is not “cruel and unusual”: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072. The treatment or punishment must be “so excessive as to outrage standards of decency”: Smith, at p. 1072; R. v. Goltz, [1991] 3 S.C.R. 485, at p. 499; R. v. Luxton, [1990] 2 S.C.R. 711, at p. 724. The court must be satisfied that “the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable”: R. v. Morrisey, [2000] 2 S.C.R. 90, 2000 SCC 39, at para. 26 (emphasis in original).
The court must first determine whether the treatment or punishment is grossly disproportionate for the individual offender having regard to all contextual factors. Relevant factors may include: the gravity of the offence, the personal characteristics of the offender, the particular circumstances of the case, the actual effect of the treatment or punishment on the individual, relevant penological goals and sentencing principles, the existence of valid alternatives to the treatment or punishment imposed, and a comparison of punishments imposed for other crimes in the same jurisdiction: see Morrisey, at paras. 27-28. If the treatment or punishment is grossly disproportionate for the individual offender in light of all relevant contextual factors, the court proceeds to determine whether the infringement can be justified under s. 1 of the Charter . If it is not disproportionate for the individual offender, the court must still consider whether the treatment or punishment is disproportionate having regard to reasonable hypotheticals. In Goltz, it was made clear that reasonable hypotheticals can not be “far-fetched or only marginally imaginable” (p. 515). They cannot be “remote or extreme examples” (p. 515). Rather they should consist of examples that “could commonly arise in day-to-day life” (p. 516).
Mr. Wiles presented no evidence as to his need for the firearms found in his possession and made no argument that the prohibition orders had any particular impact upon him. He bases his constitutional argument, rather, on the general effect of the mandatory weapons prohibition, essentially raising two grounds. First, he contends that by virtue of its mandatory nature, s. 109(1)(c) does not permit a distinction between big marihuana grow operators and small ones. To make his point, he raises the hypothetical of a 75-year-old grandmother experimenting with growing a single marihuana plant on the kitchen windowsill who is caught and charged under s. 7(1) of the CDSA . This hypothetical offender would be subject to the same minimum weapons prohibition as the large commercial producer. On this point, Mr. Wiles asks this Court to draw on its analysis in Smith where the mandatory imposition of a minimum seven-year jail sentence for the offence of importing narcotics was held to be unconstitutional, essentially on the basis of its grossly disproportionate effect on hypothetical offenders. Second, Mr. Wiles submits that s. 109(1)(c) is grossly disproportionate because it does not require any consideration as to whether the underlying offence involved violence or whether the individual offender poses a future risk to public safety.
At the sentencing hearing, Chief Judge Batiot found that the mandatory prohibition infringed s. 12 of the Charter because there was not necessarily a nexus between the purpose of the mandatory prohibition — the reduction of the risk of future violence, and the offence of production under s. 7 of the CDSA ((2003), 110 C.R.R. (2d) 1, 2003 NSPC 14). With respect to this particular offender, he noted that “but for” s. 109, there would not be any mention of a firearms prohibition, as it would have been “irrelevant”, given that the accused’s firearms were legally stored, and not used to defend his grow operation (para. 16). Therefore, the fact that the mandatory prohibition attached to all offences under s. 7(1) without regard to whether the individual accused posed a risk of future violence rendered it “grossly disproportionate” and a violation of the accused’s right not to be subjected to cruel and unusual punishment. Similarly, because s. 109 did not provide for discretion not to impose the prohibition in cases, such as the one at hand, where the accused did not present “an actual or potential danger with [a] firearm” (para. 41), the accused’s right was not minimally impaired, and the violation could not be upheld as a demonstrably justified limit under s. 1. The sentencing judge therefore read down the section to provide for a discretionary rather than mandatory order and declined to make the prohibition orders.
Bateman J.A. for the Nova Scotia Court of Appeal, Oland and Hamilton JJ.A. concurring, overturned the sentencing judge’s decision, holding that the test for an infringement of s. 12 had not been met ((2004), 220 N.S.R. (2d) 126, 2004 NSCA 3). The Court of Appeal found that there was a connection between the mandatory prohibition and s. 7 offences, based on evidence presented at the hearing as to the frequency with which firearms are used to protect grow-operations against theft, to the point, as noted by the sentencing judge (para. 17), that in any raid, the police will assume guns are present and will take the necessary precautions for the officers’ safety. The Court of Appeal also found that the sentencing judge failed to take into account the ameliorative effects of the exception provided for by s. 113 of the Criminal Code in cases where the prohibition would result in a deprivation of livelihood or sustenance. In Bateman J.A.’s opinion, this provision eliminated those cases where the imposition of a mandatory prohibition might be found to be “grossly disproportionate”.
I agree with the Court of Appeal. Mr. Wiles has not established that the imposition of the mandatory weapons prohibition orders constitutes cruel and unusual punishment. As noted by the Court of Appeal, the prohibition has a legitimate connection to s. 7 offences. The mandatory prohibition relates to a recognized sentencing goal — the protection of the public, and in particular, the protection of police officers engaged in the enforcement of drug offences. The state interest in reducing the misuse of weapons is valid and important. The sentencing judge gave insufficient weight to the fact that possession and use of firearms is not a right or freedom guaranteed under the Charter , but a privilege. It is also a heavily regulated activity, requiring potential gun-owners to obtain a licence before they can legally purchase one. In Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, this Court held that requiring the licensing and registration of firearms was a valid exercise of the federal criminal law power. If Parliament can legitimately impose restrictions on the possession of firearms by general legislation that applies to all, it follows that it can prohibit their possession upon conviction of certain criminal offences where it deems it in the public interest to do so. It is sufficient that Mr. Wiles falls within a category of offenders targeted for the risk that they may pose. The sentencing judge’s insistence upon specific violence, actual or apprehended, in relation to the particular offence and the individual offender takes too narrow a view of the rationale underlying the mandatory weapons prohibition orders.
Insofar as the individual offender is concerned, there is no evidence as to any effect that the prohibition orders will have on Mr. Wiles, apart from the loss of the firearms already in his possession. Since he was legally in possession of the firearms, the sentencing judge inferred that he was a recreational hunter and shooter. Even assuming that to be the case, the loss of this privilege would not support the sentencing judge’s finding of gross disproportionality. As a twice convicted producer of a controlled substance, Mr. Wiles’ loss of the privilege to possess firearms for recreational purposes falls far short of punishment “so excessive as to outrage our standards of decency”. In addition, the mandatory provision does not have a grossly disproportionate effect having regard to any reasonable hypothetical. Again here, I agree with the Court of Appeal that the sentencing judge did not properly weigh the ameliorative effect of s. 113 of the Criminal Code which permits the court to lift the order for sustenance or employment reasons. As stated by Bateman J.A., “[t]his is a key companion provision to s. 109(1)(c) which would eliminate, where appropriate, any unacceptable consequences of a firearms prohibition” (para. 57).
For these reasons, I would dismiss the appeal.
Cases cited
- R. v. Smith (Edward Dewey) 18561-1987-06-25 p 1072 ¶ 4, ¶ 6
- R. v. Goltz 21826-1991-11-14 p 499 ¶ 4, ¶ 5
- R. v. Luxton 21252-1990-09-13 p 724 ¶ 4
- R. v. Morrisey 2000 SCC 39 para 26 ¶ 4
- Morrisey Morrisey, at paras. 27-28 paras 27-28 ¶ 5
- 110 C.R.R. (2d) 1 110 C.R.R. (2d) 1 ¶ 7
- 2003 NSPC 14 2003 NSPC 14 para 16 ¶ 7
- 220 N.S.R. (2d) 126 220 N.S.R. (2d) 126 ¶ 8
- 2004 NSCA 3 2004 NSCA 3 para 17, para 57 ¶ 8, ¶ 10
- Reference re Firearms Act (Can.) 2000 SCC 31 ¶ 9