July 13, 2012

Mandatory Minimums for Firearm Trafficking Struck Down by Ontario Court Judge

• Mandatory minimum sentences are significant part of the government’s “tough-on-crime” legislation;
• From 1998-2008, the mandatory minimum for a conviction under section 99 of the Criminal Code of Canada was one (1) year imprisonment. In 2008, this minimum penalty was elevated to three (3) years imprisonment;
• On 6 July 2012, Justice Bellefontaine ruled that Christopher Lewis who was convicted of offering to sell an undercover police officer a .45 calibre gun should not be required to serve the mandatory minimum of three (3) years of custody as required by section 99(2)(a) of the Criminal Code of Canada for firearms trafficking;
• Justice Bellefontaine was satisfied that the three (3) year minimum sentence is “cruel and unusual punishment” contrary to section 12 of the Canadian Charter of Rights and Freedoms;
• Section 99(2)(a) of the Criminal Code of Canada was declared to be invalid and of no force and effect;
•  What does this mean for immigration applicants? Prior to this decision, a permanent resident convicted of firearms trafficking would lose his/her right to appeal to the Immigration Appeal Division. However, with this provision being unconstitutional, a permanent resident convicted of firearms trafficking would not automatically lose the right to appeal to the Immigration Appeal Division.