The mandatory minimum sentences for possession of firearms brought in by the Conservative government in 2008 are unconstitutional, ruled the Ontario Court of Appeal in decisions released Tuesday morning.

They are “cruel and unusual punishment” and “grossly disproportionate,” found the five-judge panel unanimously.

The sentencing laws struck down are part of Section 95, covering possession of a loaded prohibited or restricted firearm or unloaded with ammunition easily accessible.

The panel ruled that both the three-year mandatory minimum for first offences and the five-year mandatory minimum for repeat offences violate Section 12 of the Charter of Rights and Freedoms.

But the panel, which heard six gun-crime cases in a February hearing, also upheld a one-year mandatory minimum for committing an offence using a firearm whether or not it causes bodily harm.

While courts will rely on judicial discretion in sentencing firearm possession cases for now, the next stop is likely the Supreme Court of Canada.

The Crown is considering whether to appeal, according to a statement from Conservative Minister of Justice Peter McKay.

Mandatory minimum sentences for gun crimes were stiffened by the Conservative government in 2008 in a tough-on-crime push following a spate of gun-related violence including Toronto’s 2005 “Summer of the Gun.”

Before that, firearm possession netted a minimum of one year.

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The Court of Appeal decisions do not comment on the effectiveness of mandatory minimums in deterring crime; however, they do emphasize that serious gun charges will continue to get serious sentences.

Notably, the decision to strike down the law was not made based on the facts of any of the cases under appeal, but on a hypothetical case.

None of the sentences were lowered by the verdict. Indeed, in the case where a judge issued a one-year sentence rather than three years, the sentence was deemed “totally inadequate” and will be increased.

The problem with Section 95 is that it “casts a wide net” since to be convicted of possessing a firearm does not require proof of harm done or even the risk that harm could be done, wrote Justice David Doherty in the decision on the case of Hussein Nur.

The section could cover anything from having a licenced firearm in an area that is not covered by the licence to carrying a loaded handgun illegally for criminal purposes.

For Nur, caught carrying a loaded handgun outside a northwest Toronto community centre, a three-year sentence is appropriate given the serious nature of the crime, wrote Doherty,

However, when considering a less serious hypothetical case, the three-year sentence becomes problematic, Doherty wrote.

Firearm possession is a hybrid offence, meaning that the Crown can decide to prosecute the charge in two ways: summarily or by indictment.

Proceeding summarily, the option for minor cases means a maximum sentence of one year. Proceeding by indictment holds a mandatory minimum of three years.

The summary option is intended as a safeguard but that only works when “the facts are known from the outset and agreed upon by the parties,” wrote Doherty. “The Crown election provides no safeguard in the vast majority of cases where the facts are in dispute or unknown at the time of the election.”

Given the facts at the end of a trial, there will inevitably be cases where the Crown would have to proceed differently, but by then it’s too late, he wrote.

Doherty suggests a scenario where a person had a licenced, unloaded gun with ammunition nearby in a place the license did not cover. The person is not using the gun for any dangerous or unlawful purpose.

Doherty pointed to the John Snobelen case to illustrate his point.

Snobelen, a former Ontario cabinet minister, had a gun licenced to him in Oklahoma unknowingly shipped to his Milton home after the ranch in Oklahoma was sold. His wife reported the existence of the gun to police during a marital dispute and he was charged with possession of a restricted firearm and readily accessible ammunition.

The Crown proceeded summarily, Snobelen pleaded guilty, and the judge granted an absolute discharge.

However, if the wife had credibly alleged that the firearm was used to intimidate her, it’s likely the Crown would have proceeded by indictment, wrote Doherty.

But if the judge dismissed the wife’s evidence during trial, he would be bound to sentence the accused to three years in prison upon conviction.

“A three-year penitentiary sentence for what is essentially a violation of a term of a licence, albeit a knowing violation, is unheard of in Canada,” wrote Doherty.

There could be a “cavernous disconnect” between the severity of the offence and the sentence, he added.

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To have a mandatory minimum sentence struck down as unconstitutional is a rare occurrence, says lawyer Dirk Derstine, who represented Nur.

The last time a mandatory minimum sentence was struck down for a Section 12 breach was in 1987. The Supreme Court ruled the seven-year minimum sentence for importing drugs was unconstitutional then, but has since upheld the sentencing floors set by the government.

Tuesday’s decision “shows that court is very concerned with removing discretion from judge to use their good judgment to determine what is an appropriate sentence in a case,” says lawyer Mark Halfyard, who represented Leroy Smickle. In Smickle’s case, trial judge Justice Anne Molloy struck down the three-year mandatory minimum and gave him a sentence of one year.

Doherty, writing for the Court of Appeal panel, ruled that the sentence of one year is “totally inadequate” and will take further submissions from lawyers on an appropriate sentence.

However,

Virgina Nelder, the lawyer representing the African-Canadian Legal Clinic, which acted as an intervenor in the appeal, expects the decision will lead to fewer black offenders serving time in federal prisons.

Since judges are no longer limited from using their discretion to take into account the background of an offender when sentencing, they can consider sentences that offer the best prospect of rehabilitation, she said.

Federal Liberal justice critic Sean Casey also welcomed the Court of Appeal decision.

“We believe mandatory minimums are bad policy, it’s a policy based on emotion, not on evidence,” he said. Instead, sentencing decisions should be left in the hands of the judiciary, he said.

“We believe that gun crime should be strongly punished but there should be more emphasis on preventive measures.”

The cases:

Hussein Nur

Nur was caught carrying a gun outside a community centre in 2011. He pleaded guilty to possessing an illegal firearm and was sentenced to three years and four months. In his ruling, Justice Michael Code determined the law is not discriminatory but could be unconstitutional if applied in the wrong way.

RESULT: The three-year mandatory minimum sentence was struck down, but three years was deemed appropriate in this case.

Leroy Smickle

The 27-year-old was caught by police posing for a Facebook photo holding a loaded handgun and was convicted of illegal firearm possession. Justice Anne Molloy ruled that the appropriate sentence for Smickle was one year in jail — and that forcing a three-year sentence on him is unconstitutional.

RESULT: Contrary to Molloy’s finding that Smickle’s actions were just “adolescent preening,” the Court of Appeal found that he “demonstrated a wanton or reckless disregard for the lives and safety of others.”

Mathew Rocheleau

The Smith Falls, Ont. man pleaded guilty to 24 robbery-related charges. They included one count of robbery with a firearm (four-year minimum), three counts of forcible confinement with a firearm (one-year minimum) and one of robbery with an imitation firearm (one-year minimum). Ontario Court Justice Jack Nadelle declared that the eight-year minimum sentence was not unconstitutional, though a five- or six-year sentence would have been appropriate.

RESULT: The convictions for three counts of forcible confinement with a firearm were overturned, however the Court of Appeal ruled that the eight-year sentence was still appropriate. The constitutionality of the one-year mandatory minimum for the overturned charges was not addressed.

<bullet>Frank Meszaros

The 62-year-old fired a shotgun to scare off two men fishing in a pond on his property in Brant County. Ontario Superior Court Justice Harrison Arrell found him guilty of assault and using a firearm while committing an indictable offence. The minimum sentence for using a firearm while committing an indictable offence is one year in jail — an appropriate sentence in this case, ruled Arrell.

RESULT: The constitutionality of the one-year mandatory minimum was upheld, since it does not meet the threshold for “cruel and unusual punishment.” Both the conviction and sentence appeal were dismissed.

<bullet>Ian Chambers

The 25-year-old pleaded guilty to eight charges including possession of firearm with ammunition (five-year minimum) and two counts of possessing a firearm while prohibited (one-year minimum). A judge sentenced Chambers to eight years including an extra year above the minimum because he was in a busy public area with the gun.

RESULT: The sentence appeal was dismissed. The panel did not consider the whether the five-year mandatory minimum sentence for repeat offenders is constitutional.

<bullet>Sidney Charles

After a loaded gun was found in the bed at his rooming house, Charles pleaded guilty to several firearm-related offences. He got a five-year sentence — the mandatory minimum for a second illegal firearm possession offence.

RESULT: The five-year minimum for a repeat firearm offence was struck down, but the sentence was affirmed.