R. v. Lewis, 2012 ONCJ 413

In R. v. Lewis, Justice Bellefontaine of the Ontario Court of Justice applied the precedent-setting decision in R. v. Smickle, to strike down a three-year mandatory minimum sentence for “trafficking” in firearms.

The accused, Christopher Lewis, had sold cocaine on a number of occasions to an undercover police officer, who subsequently urged Lewis to acquire and sell him a handgun. Lewis initially agreed to do so, but over a number of weeks the deal failed to materialize and it eventually became clear that Lewis did not have a firearm to sell. The judge found that “Mr. Lewis intended his offer to be taken seriously by Detective Palmer in order to keep him interested in Mr. Lewis’ services as a drug supplier, but that Mr. Lewis never had access to a gun and never had any intention to carry through with the offer to transfer a firearm.”

In these circumstances, the defence argued that a three-year mandatory minimum sentence for firearms trafficking, separate and apart from the drug trafficking penalties, would constitute cruel and unusual punishment, contrary to Section 12 of the Charter of Rights and Freedoms.

The established legal test for “cruel and unusual punishment,” Justice Bellefontaine pointed out, is not merely a harsh or unreasonably excessive punishment, but a punishment “so excessive or grossly disproportionate as to outrage decency.”

In Mr. Lewis’ circumstances, Bellefontaine found that a three-year prison term would be excessive and unreasonable, but that in view of Mr. Lewis’ extensive criminal record, it would not meet the high threshold set by the Supreme Court of Canada for cruel and unusual punishment:

“While I consider a three year penalty to be excessive and disproportionate for Mr. Lewis, I am not prepared to find that it is so at a level that would be grossly disproportionate and /or would outrage standards of decency. Accordingly, as the facts and circumstances do not warrant a finding of gross dis-proportionality at a constitutionally impermissible level with respect to Mr. Lewis on an individual basis further consideration must be given to the second aspect of the analysis required pursuant to R. v. Goltz. The second aspect requires that the validity of the statutory provision be considered on the grounds of gross dis-proportionality as evidenced in reasonable hypothetical cases. This approach flows from the Supreme Court of Canada decision in R. v. Smith, which struck down the minimum seven year sentence for importing a narcotic into Canada. The decision was not struck down on the basis of Mr. Smith’s personal circumstances. He was a seasoned drug trafficker importing seven and one half ounces of 85 to 95 percent pure cocaine into the country from Bolivia. The analysis was conducted on the basis of a young first offender entering the country with his or her first ‘joint of grass’.”

Based on hypothetical cases provided by the defence, Justice Bellefontaine ultimately found that the mandatory minimum sentence in question could result in cruel and unusual punishment if it were applied to a hypothetical “youthful individual with no criminal record,” who made an empty promise to sell a handgun that he or she did not actually have and had no intention to acquire.

Based on this finding, the mandatory minimum sentence in question was struck down as a violation of Section 12 of the Charter. Mr. Lewis was sentenced to 1 year in prison for firearms trafficking, which the judge viewed as reasonable in view of the circumstances.

Lewis is an example of the court exercising its duty to consider all potential ramifications of its decision, and ultimately strike down legislation which would undoubtedly lead to “cruel and unusual punishment” in future cases if it were allowed to stand.

Decided by the Ontario Court of Justice on July 6, 2012.
Click here for the full text of the decision.

Leave a Comment

Filed under Section 12: Cruel & Unusual Punishment

Leave a Reply

Your email address will not be published. Required fields are marked *