OTTAWA - An Ontario Court judge has struck down a cherished part of the Harper government's tough-on-crime agenda.
Justice Paul Bellefontaine ruled Friday in Oshawa, Ont., that Christopher Lewis — a crack dealer who offered to sell an undercover police officer a gun — should not have to face the mandatory minimum sentence of three years in jail for firearms trafficking.
Mandatory minimum sentences are the backbone of the Conservative reforms to criminal law.
But Lewis' lawyer, Jeffrey Mazin, said three years was far too much for someone who never had a gun, nor did he ever intend to sell one to the officer.
"Basically it was a sales pitch — to keep the officer interested in further drug sales," Mazin, a Toronto criminal defence lawyer, said in an interview.
The federal government's 2008 changes to the criminal code increased penalties in a number of areas, including gun control, drunk driving and the age of consent.
The Oshawa case only dealt with the firearms trafficking part of the Tackling Violent Crime Act, in which offering to sell someone a gun carries an automatic three-year sentence.
Mazin argued that the mandatory minimum sentence in this case was too harsh, and would run up against the Charter of Rights and Freedoms provisions against cruel and unusual punishment.
"The reality is ... it's remarkably easy to commit in terms of the element of the offence. All you need to do is make an offer and intend that the recipient take it seriously."
The judge agreed, saying the penalty was disproportionate.
He gave Lewis one year in jail for the firearms offence — although he also gave him an extra two years for other drug-related offences.
There are implications for other cases, Mazin said.
"(It) demonstrates that not all gun offences should be punished the same way. Different firearms offences can be committed in a myriad of ways, with different levels of culpability."
Lewis was convicted after selling crack cocaine to an undercover officer on a few occasions, and then offered to sell him a .45 calibre gun, Mazin said.
Mandatory minimums are included in several areas of the Conservative crime reforms, but they have drawn much criticism for being too inflexible and not effective in deterring crime.
Mazin said Friday's ruling was the first time a judge has struck down the mandatory minimum for firearms trafficking.
But it's not the first time a judge has challenged Ottawa's 2008 law. In February, Ontario Superior Court Judge Anne Molloy struck down a three-year minimum sentence for a first offence of illegally possessing a loaded gun.
A spokeswoman for Justice Minister Rob Nicholson offered little comment on Lewis' case Friday, but said the Conservative government believes that for certain offences a minimum period of incarceration is justified to protect public safety.
"Parliament acted because Canadians were concerned that the courts were not applying appropriate sentences for serious gun crimes," said Julie Di Mambro.
"In order to maintain the integrity of the court case, which is currently within the appeal period, we cannot comment further."
15 Things Critics Fear In The Tory Crime Bill
Opposition parties, professionals working within the corrections and justice systems, the Canadian Bar Association and various other interest groups have raised wide-ranging concerns about the <a href="http://www.huffingtonpost.ca/news/omnibus-crime-bill" target="_hplink">omnibus crime bill</a>. Here is an overview of some of their objections. (CP/Alamy)
15. Harsher Sentences For Young Offenders
Changes to the Youth Criminal Justice Act will impose tougher sentences for violent and repeat young offenders, make it easier to keep such offenders in custody prior to trial and expand the definition of what is considered a "violent offence" to include "creating a substantial likelihood of causing bodily harm" rather than just causing, attempting to cause or threatening to cause bodily harm. The new legislation will also require the Crown to consider adult sentences for offenders convicted of "serious violent offences" and require judges to consider lifting the publication ban on names of offenders convicted of "violent offences" even when they have been given youth sentences. Some of the concerns around these provisions raised by some of the professionals who work with young offenders include: (Alamy)
14. Young Offenders - Naming Names
The publication of names of some young offenders will unjustly stigmatize them for life. Quebec has asked that provinces be allowed to opt out of this provision. (Getty)
13. Young Offenders - Stiffer Sentences
Stiffer, longer sentences will turn young offenders into hardened criminals and undermine any potential for rehabilitation. (Alamy)
12. Young Offenders - Minorities Take The Brunt
As with other parts of the crime bill, critics says harsher sentencing rules and increased emphasis on incarceration will <a href="http://www.huffingtonpost.ca/2012/02/20/bill-c-10-omnibus-crime_n_1289536.html?ref=omnibus-crime-bill" target="_hplink">disproportionately affect aboriginal</a> and black Canadians, who are already over-represented in the criminal justice system. (Alamy)
11. Young Offenders - Forget Rehabilitation
The changes shift the emphasis of the Act from rehabilitation to "protection of society," which critics say will put the focus on punishing young offenders rather than steering them away from a life of crime. <a href="http://www.huffingtonpost.ca/2011/11/22/crime-bill-quebec-canada_n_1107717.html?ref=omnibus-crime-bill" target="_hplink">Quebec, in particular, which prides itself on the success of the rehabilitative aspects of its youth justice system, has argued for stronger language prioritizing rehabilitation</a>. (Alamy)
10. Fewer Conditional Sentences
The legislation will eliminate conditional sentences, those served in the community or under house arrest, for a range of crimes, including sexual assault, manslaughter, arson, drug trafficking, kidnapping and fraud or theft over $5,000. It will also eliminate double credit for time already served. Critics say these changes will: (Getty)
9. Fewer Conditional Sentences - Spike Costs
Cost the federal and provincial justice and corrections systems millions of additional dollars a year. The parliamentary budget officer, <a href="http://www.huffingtonpost.ca/2012/02/28/omnibus-crime-bill-costs-conditional-sentences_n_1306528.html?ref=omnibus-crime-bill" target="_hplink">Kevin Page, has estimated that the average cost per offender will rise from approximately $2,600 to $41,000</a> as a consequence of the elimination of conditional sentences. (Alamy)
8. Fewer Conditional Sentences - More Trials And Hearings
- Lead to more trials as those accused of crimes will be less likely to plead guilty if they know there is no chance they will get a conditional sentence and will be more likely to take their chances on a trial. Some have predicted this will lead to greater backlogs in an already backlogged court system. - Result in more parole hearings. Page's analysis predicted that with the increase in the number of incarcerations, there will be more offenders coming up for parole, which will increase costs for federal and provincial parole review boards. A single review by the Parole Board of Canada costs an estimated $4,289, Page estimated. (Alamy)
7. Mandatory Minimums
<a href="http://www.huffingtonpost.ca/2012/02/22/bill-c-10-drugs-mandatory-minimums-omnibus_n_1292894.html?ref=omnibus-crime-bill" target="_hplink">By far the most criticized aspect of the bill is the introduction of mandatory jail sentences for certain crimes, including drug trafficking, sex crimes, child exploitation and some violent offences</a>. Opponents of the measures have argued that this type of sentencing has been tried in other jurisdictions, most notably in the U.S., and has created more problems than it has solved. Critics say that coupled with other changes in the bill, such as increases in the maximum sentences handed down to some drug offenders and sexual predators and elimination of conditional sentences in some cases, mandatory minimums will burden Canada's prison and court systems in ways that are unfeasible, untenable and have little benefit. In particular, they argue that mandatory minimum sentences will: (Jupiter Images)
6. Mandatory Minimums - Higher Costs
Increase the costs of prosecuting and incarcerating offenders and leave fewer funds for rehabilitation programs. (Alamy)
5. Mandatory Minimums - Overcrowding
Lead to overcrowding in prisons. (Alamy)
4. Mandatory Minimums - Make Judges Less Powerful
- Remove judges' discretion to tailor sentences to the specifics of a particular case and offender and force them to apply blanket, one-size-fits-all sentences regardless of circumstances - Limit the use of alternate sentencing measures of the type currently applied to aboriginal offenders. (Alamy)
3. Mandatory Minimums - Over-Punish Drug Offenders
<a href="http://www.huffingtonpost.ca/2012/03/02/omnibus-crime-bill-pierre-claude-nolin_n_1316481.html?ref=omnibus-crime-bill" target="_hplink">Disproportionately punish small-time drug offenders and have limited effect on the drug producers, organized crime bosses and serious drug traffickers</a> the government says it wants to target. (Alamy)
2. Mandatory Minimums - What's The Point?
Have little rehabilitative effect on offenders and rather leave them more, not less, likely to re-offend. <a href="http://www.huffingtonpost.ca/2011/11/27/tough-on-crime-conservatives-doubt-tough-sentences_n_1115012.html?ref=omnibus-crime-bill">Critics point to numerous studies showing harsher incarceration laws do not have a deterrent effect on criminals or lower crime rates</a>. (Alamy)
1. Mandatory Minimums - What Charter?
Violate provisions of the Charter of Rights and Freedoms and open up the government to legal challenges on grounds that the sentencing rules violate certain rights that offenders have under the Charter, such as the right to liberty, the right not to be subjected to cruel and unusual punishment and the right to equal protection and benefit of the law. (Alamy)