Last week’s column looked at the offences for failure to licence and register firearms. This week’s column looks at the trial, sentencing and police discretion involving such charges.
At a trial, the crown will first try to prove its case, after which the accused can raise any defences. Given the newness of this area and the controversy, I wouldn’t even try to predict the various defences that might be put forward.
However, the accused will not be able to question the federal government’s constitutional authority to pass this law since in 2000 the Supreme Court ruled that gun control laws were criminal laws and therefore within federal authority.
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The opposing argument was that gun laws were a matter of property rights and therefore within provincial authority. Another defence I suspect will be raised without much success is that gun laws interfere with an individual’s property rights.
Our constitution does not guarantee individual property rights. Nevertheless, some people have argued that section 7 which protects “the right to life, liberty and security of the person” includes property rights. To date, Canadian courts have rejected this argument.
What sentences will be imposed on conviction? The sentencing process is the same, whether one has pleaded guilty or been found guilty after trial. Maximum sentences are set out in law for all offences but are rarely imposed.
Sentences are a matter of judicial discretion and several factors will influence the range. Our legal system is precedent-bound so judges will look at what other judges are doing. The first cases really will set the tone. Once cases reach the appeal level, appeal courts will define the range of sentences that should be applied for gun control offences. Attorneys general, ministers of justice and police cannot tell judges what sentences to impose. Factors considered in sentencing include previous charges, character and age of the accused.
In the case of gun charges, a factor that might be considered is whether the accused has deliberately challenged the law and has encouraged others to do so. A deliberate disregard of the law is often treated more harshly.
In addition to fines and jail, a court can grant an absolute discharge, meaning no sentence or conditional discharges that might include community service and probation.
There are thousands of laws in this country. Not all are given the same attention by police and prosecutors. First, the authorities are encouraged to consider alternative measures for young offenders and first-time offenders of less serious crimes. Offences such as drinking and driving, or involving violence and sexual attacks on children are given high priority.
Based on media reports I have read, gun registration offences will not be given high priority. While the federal government is responsible for criminal law, the provinces are responsible for the administration of justice including policing, prosecution and running courthouses and jails for offenders sentenced to less then two years.
Several provincial justice ministers have declared they will not be co-operating with the federal government. And many police and federal officials have declared that they hope to encourage people to follow the law rather than prosecute.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
