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The Supreme Court’s funny priorities

By | on Apr 20 2015

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As the Post’s Chris Selley pointed out on Friday, there’s been a surprisingly warm reception among non-Conservatives to the Supreme Court of Canada’s recent decision striking down mandatory minimum sentences in firearm possession cases.

The surprise isn’t because the decision is off-base or illogical. It’s because it wasn’t so long ago that many of those hailing the decision, including the Toronto Star and various Liberal governments, were as bullish as can be on cracking down on gun crimes with tough mandatory minimums. The lack of evidence that such efforts actually deter gun violence didn’t seem to be troubling anybody much until now, when the Supreme Court pointed it out and so many of the previously tough-on-gun boosters started nodding knowingly.

This decision is frustrating for reasons beyond just exposing rampant inconsistency and hypocrisy, though. In doing the right thing here by protecting Canadians from cruel and unusual punishment — by basically ensuring that a non-violent violation of a gun law by someone who poses no threat to the public doesn’t automatically land that person in prison for three years — Canada’s Supreme Court has underlined its failure to do the same thing in similar circumstances.

Mandatory government forfeiture of private property remains on the books for people who violate a firearms law, even if the violation is a minor one and there is no danger to the public.

This is what happened to Bruce Montague, a talented gunsmith who purposely let his firearms licences expire as an act of public political protest. He then challenged the constitutionality of the gun laws he opposed until he was finally charged and sentenced to 18 months in jail and 90 days community imprisonment.

Montague served his time, but the Court of Appeal for Ontario ordered him and his wife, Donna, to forfeit ownership of their entire firearms inventory, an asset worth $100,000, as part of the mandatory forfeiture provisions. That inventory represented the Montagues’ entire life savings — except for their home, which the Ontario government is seeking through a separate civil forfeiture proceeding.

Montague sought leave to appeal his case to the Supreme Court, but the high court declined to hear it, leaving the status quo as the law of the land.

As a consequence, we are left with an absurd result. It is considered cruel and unusual punishment to mandate a three-year jail sentence for a firearms infraction, since that mandatory minimum could be applied to a licensing offence. And as the court put it, “there exists a cavernous disconnect between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment.” Yet it’s considered perfectly OK and constitutional to punish the exact same “licensing-type offence” by taking the offender’s entire life savings, regardless of how disproportionate that punishment might be.

In discussing its reasons for deciding that a five-year mandatory minimum sentence for repeat offenders of the firearms law is unconstitutional, the court reasons that for less serious offenders, this “goes far beyond what is necessary in order to protect the public, to express moral condemnation of the offenders, and to discourage others from engaging in such conduct.”

Surely the same can be said for taking property worth $100,000 (or more, since there is no upper limit on the mandatory forfeitures) from an individual who has already served significant jail time for a paper crime that caused no harm to anyone.

Instead of being grateful for a court that is willing to protect individuals from grossly disproportionate punishments, then, we are left scratching our heads about the inconsistency in the law.

Apparently, those safeguarding our rights are looking out for us when the government unfairly takes our physical liberty, but not when the government unfairly takes everything we have worked and saved for over a lifetime. Funny priorities, those.

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