R. v. Nur (H.) 2013 ONCA 677
Civil Rights - Discrimination - Race and national or ethnic origin - Criminal matters - Mandatory minimum sentences
The accused was charged with one count of possession of a loaded prohibited firearm and accessible ammunition (Criminal Code, s. 95(1)). The Crown proceeded by indictment, and the accused elected to be tried by judge alone. The accused eventually pleaded guilty to the charge. The matter proceeded to sentencing. The accused challenged the constitutionality of the mandatory minimum three year sentence imposed by s. 95(2)(a)(i) of the Code.
The Ontario Superior Court (trial judge), in a decision reported  O.T.C. Uned. 4874, held that the three year mandatory minimum sentence did not offend s. 12 of the Charter (the provision prohibiting cruel or unusual punishment) or s. 15 (the provision respecting discrimination). The trial judge held that the scheme in s. 95, infringed s. 7 of the Charter; however, the accused had no standing to advance the s. 7 argument in this case. The trial judge concluded that a sentence of 40 months was appropriate, having regard to the mandatory three year minimum. The accused appealed.
The Ontario Court of Appeal allowed the appeal on the constitutional issue, but affirmed the sentence imposed by the trial judge. The court held that the three year minimum sentence infringed s. 12 of the Charter and could not be saved by s. 1. The court declared s. 95(2)(a)(i) to be of no force and effect to the extent that it imposed a mandatory three year minimum term of imprisonment when the Crown proceeded by indictment. The court agreed with the trial judge that the three year minimum did not offend s. 15. The court disagreed with the trial judge’s s. 7 analysis and opined that s. 7 was not violated.
Editor’s note: This appeal was heard together with five other appeals: See R. v. Charles,  O.A.C. TBEd. NO.014; 2013 ONCA 581, R. v. Smickle,  O.A.C. TBEd. NO.010; 2013 ONCA 678, R. v. Chambers,  O.A.C. TBEd. NO.012; 2013 ONCA 680, R. v. Rocheleau,  O.A.C. TBEd. NO. 011; 2013 ONCA 679; and R. v. Meszaros,  O.A.C. TBEd. NO.015; 2013 ONCA 682.