By Gerald V. Paul

The African Canadian Legal Clinic (ACLC) intervened at the Supreme Court of Canada in the Queen vs Nur, which will consider the constitutionality of mandatory minimum sentences for possession of a restricted firearm.

This case is an appeal by the Crown of the Nov. 12, 2013, decision of Ontario Court of Appeal, striking down s95 (2) of the Criminal Code. This provision calls for a three-year mandatory minimum sentence for a first-time offence of possession of a restricted firearm.

The court ruled that this provision creates a grossly disproportionate sentence, amounts to cruel and unusual punishment and is therefore unconstitutional due to its violation Section 12 of the Charter of Rights in particular. The court based this decision on the fact that Section 95 is written so broadly that it captures offenders with diminished levels of moral blameworthiness.

Margaret Parsons, the executive director of the ACLC, states: “To craft an appropriate sentence, judges must be directed to consider whether the contemporary impacts of the historical legacies of slavery, colonialism and anti-Black racism that continue to affect African Canadians played a role in the offender’s involvement in the crime.”

Parsons added, “For too long judges in the criminal justice system have taken a colour-blind approach when it comes to African Canadians and in result, the rate of incarceration of African Canadians in federal prisons has ballooned by almost 90% since the early 2000s. This case offers the Supreme Court the opportunity to rebalance the scales of justice.”

Contesting the Crown’s appeal at the Supreme Court of Canada will be Anthony Morgan, ACLC policy research lawyer, and Faisal Mirza, ACLC co-council. As the ACLC did at the Court of Appeal, they will once again assert the argument that the three-year mandatory minimum sentence is grossly disproportionate, and thereby violates the Charter.

The ACLC’s position is that this mandatory minimum should be struck down by the Supreme Court because it prohibits sentencing judges from accounting for relevant socio-economic factors of systemic discrimination and historic disadvantages that have contributed to the offending behavior and which could lead to a reduced sentence.

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