April 15, 2015
The Supreme Court of Canada struck down the mandatory minimum sentence for possession of a prohibited weapon as unconstitutional. CACL applied for and was granted leave to intervene in the Supreme Court of Canada case last year as people with intellectual disabilities are disproportionately represented in prison populations. They face significant barriers in having their experiences and voices heard, respected and supported in the criminal justice system.
“The decision has important implications for persons with an intellectual disability. CACL wanted to highlight for the Court the disparate impact mandatory minimum sentences have on persons with disabilities who are over-represented in prison populations. Mandatory minimum sentences prevent judges from what they do best – that is exercising their discretion in sentencing judiciously. That means, where appropriate, Judges will consider the unique circumstances and needs of an offender who has a disability in rendering his or her sentence. In enacting mandatory minimum sentences where Parliament fails to take into account the effects on persons with disabilities, it will be difficult if not impossible to constitutionally justify them,” said Dulcie McCallum, CACL Director and member of CACL’s Strategic Litigation Advisory Committee.
“Mandatory minimum sentences make it impossible for judges to consider the unique mitigating circumstances of the offender before the Court, including the role that disability may have played in the person’s commission of an offence. Many of the mandatory minimum sentences on the books are now constitutionally suspect,” said Joanna Birenbaum, counsel for CACL.
Laurie Larson, President of CACL, said, “We are very encouraged that the SCC has highlighted the need for judges to have discretion when determining what is an appropriate sentence in the circumstances of the individual case. This is one step that will help ensure that people with intellectual disabilities are treated fairly within the justice system.”
The Nur case involved a constitutional challenge to a mandatory minimum sentence for possession of a prohibited firearm under s.95 of the Criminal Code. The Court held that the mandatory minimum 3 year sentence in the case was unconstitutional and violated s.12 of the Canadian Charter of Rights and Freedoms, which guarantees the right “not to be subjected to any cruel and unusual treatment or punishment.” They ruled that mandatory minimum sentences only pass constitutional muster if they are constitutional as applied to all persons who may “reasonably” be caught by the law.