Nikos Harris

Class of 1994-1995

Nikos Harris is an experienced appellate counsel and award-winning Lecturer at the Allard School of Law. He describes his recent experience as co-counsel, with Eric Gottardi, for the Canadian Bar Association which intervened in the Supreme Court of Canada case of R. v. Nur. This decision addresses the use of mandatory minimum sentences for firearms offences in Canada.

 

How would you summarize the R. v. Nur decision?

This case involves a complex issue of the role of mandatory minimum sentences in sentencing regimes. In most sentencing hearings, a trial judge will balance numerous factors to come up with an appropriate sentence. It is a very complex process and many judges will say that no case is exactly the same when looking at the circumstances of the offence and the particular background of the offender.

One tool that has been used in sentencing is a mandatory minimum sentence which requires a judge to impose a specific term of imprisonment.  The judge has a discretion to impose a greater term of imprisonment, but has no discretion to impose a sentence less than the minimum.  Historically, these provisions were relatively rare, but over the past decade there has been a significant increase in the use of these provisions in Canada.  If the offence which requires a minimum sentence is narrowly defined, such as causing death through improper use of a firearm, the minimum sentences can be less controversial.  However, where minimum sentences is attached to an offence which covers a broad range of conduct and offenders, a sentencing judge may be forced to impose a significant jail sentence on an offender who would ordinarily received a much lesser sentence.  This is sometimes called the problem of the “exceptional case.”

In our criminal justice system, minimum sentences can be challenged under section 12 of the Charter which guarantees against cruel and unusual punishment.  This is a difficult standard to meet, as it must be demonstrated that the minimum sentence would be grossly excessive to the sentence which would be provided to the offender, or other typical offender, without the minimum requirement.

R. v. Nur involved a three year minimum mandatory minimum for illegal possession of various firearms. Possession of a firearm is generally a very serious offence, but the scope of this offence was very broad.  The offence includes persons in illegal possession of a firearm due to a failure to follow certain licensing requirements, or persons who are in brief illegal possession of a firearm without the intent use it in an offence.  

There were numerous groups that intervened in this case, and the CBA took the position that mandatory minimum sentences generally do not serve the best interests of our society or our criminal justice system.  The CBA submitted that a most just tool is a presumptive minimum sentence where a sentence judge will impose a minimum sentence for an offence unless it is demonstrated to the judge that there are exceptional circumstances in the case.  Presumptive minimum sentences allow Parliament to increase the severity of a provision while still affording a trial judge the critical discretion to make sure that a sentence is not clearly unjust in a given case.  The CBA also took the position that mandatory minimum sentences have the adverse effect of increasing levels of incarceration of groups already over-represented in our prisons, including aboriginal persons.

 

How is this case important to the future of mandatory minimum sentences in Canada?

The court in Nur ended up striking down the minimum sentence in that case.  The decision was a very important one because there had been a number of unsuccessful challenges to minimum sentences in the Supreme Court in the past decade.  If the Charter challenge to the minimum sentence in Nur was dismissed, it might have signaled that almost all minimum sentences were constitutionally acceptable.  The Nur decision has raises the issue of whether other minimum sentences which were not before the Court in that case are constitutionally sound, and certainly provides support for the principle that minimum sentences cannot be used to create fundamentally unjust sentences for individual offenders.

This decision provides the opportunity for Parliament to do one of two things. One is to craft a minimum penalty for firearm offences which is more narrowly targeted, such as a person who has possession of a firearm that they intend to use in a crime.  The second option is to consider using the concept of the presumptive minimum sentence which is a broadly used tool in common law jurisdictions all over the world.

 

How does this fit into the larger context?

Over-incarceration is a growing problem in Canada, and minimum sentences are greatly contributing to this problem. Minimum sentences also have a disproportionate effect on marginalized groups, including those suffering from a mental illness. Minimum sentencing is also increasing the already massive over-representation of aboriginal offenders in our prisons. Where a judge is given no discretion but to provide a lengthy term of imprisonment to an offender, various offenders are inevitably put in prison without any justification other than fulfilling the legislative requirement. The Nur decision, at least for that particular offence, restores the ability of a judge to balance all of the sentencing principles and provide a just sentence to each offender.

 

Tell us about your experience with the Nur case.

It was a great experience to be involved with the CBA who represent 37, 000 lawyers across Canada. The CBA has long been active in attempting to improve our criminal justice system, and the Nur case provided the opportunity to advocate on one of the most pressing issues in our society today.