Sometimes when you lose you win!

Today’s Supreme Court of Canada Judgment in R. v. Nur, the minimum sentences for “gun offences” case, has been praised and assailed, as usual.
I think it plays an important strategic role in government electoral strategy and basic policy.
A nutshell of the Court’s reasoning is:
For legislated minimum sentences for crimes involving guns (s.95 of the Criminal Code) to be considered “cruel and unusual punishment” and therefore struck down under s.52 of the Charter,
the provisions must either:
a)impose cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular individual ( the accused) before the court or
b) involve reasonably foreseeable applications that would impose cruel and unusual punishment on OTHER people charged under the provisions.
In the Nur case the accused did not argue that they themselves were disproportionately affected by s.95. They argued that the provisions, as they currently read, could foreseeably produce grossly disproportionate results in some of the contexts that could be caught by the legislation.
Here the Court held that, for example, certain gun registration or storage offences could fall under the scope of s.95. In such cases, otherwise law-abiding gun owners could find themselves subject to minimum one and three year sentences on the basis of mistakes in the proper management of their “legal” weapons.
Under long-accepted constitutional reasoning, such anomalous results need not occur often in order to render the legislation unconstitutional. They need only be reasonably predictable and occur other than in “remote or far-fetched” circumstances.
While this analysis – either arguing it or adjudicating it – is pretty complex, I think that the Department of Justice might well have anticipated it when they were drafting the legislation. I.e. they probably knew it would be stuck down.
Moreover, it’s notable that the Court didn’t even consider other, potentially successful arguments under s.7 of the Charter – not to be deprived of liberty except in accordance with principles of fundamental justice- which also could have imperilled the legislation.
So, it’s arguable that the Government knew the minimum sentencing law would be thrown out.
So why enact it? Surely this case embarrasses the Government.
Here’s the thing. Just my little thought, mind you.
You throw legislation into the hopper that you know will be impugned by the Courts right around election time.
When this reversal happens, opportunities abound:
a) you can express surprise at how the carefully-drafted provisions could be found unconstitutional (thus implying great “nit-picking” on the part of the Court)
b) you can reiterate the popular, if not very factual, slogans underlying tough-on-crime legislation – e.g. “we were just trying to combat a HUGE problem”
c) you can “allow” to be promoted the populist mantra that the Courts should not be able to overturn the will of the people.( aka the “Charter is not a law” theory)
d) most important, you can thereby advance a fundamental objective of Stephen/ Preston conservatism – reducing the authority of a written constitution.
After all, isn’t 37%-ish enough to do what’s right for everybody?

Here’s the link to the case:
http://scc-csc.lexum.com/scc-…/scc-csc/…/item/15272/index.do

R. v. Nur – SCC Cases (Lexum)
Attorney General of Alberta, Pivot Legal Society, John Howard Society of Canada, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Advocates’ Society, Canadian Bar Association, Canada’s National Firearms Association, Canadian Association for Community Living and Afr…
SCC-CSC.LEXUM.COM
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