Robert Pogson

One man, closing all the windows.

Mandatory Minimum Sentence For Firearm Ruled Unconstitutional

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Mandatory Minimum Sentence For Firearm Ruled Unconstitutional

It’s just a provincial court but it’s a start. The current criminal code of Canada holds that because an offence involves firearms it is proper to have a mandatory minimum sentence despite a constitutional requirement that the punishment must fit the crime.

“A B.C. provincial court judge has ruled that the mandatory minimum three-year sentence for possessing a loaded prohibited firearm has breached an offender’s constitutional rights.

see Minimum sentence for offender carrying banned firearm ruled unconstitutional.

The idea that a crime involving a firearm is particularly heinous and demands a harsher sentence is wrong many ways. A victim is just as dead shot as stabbed. A victim is just as robbed whether the perpetrator is armed with a firearm as with a knife. In this case, a judge would not have been able to give a lighter sentence no matter the character of the offender nor his frame of mind nor his situation. The judge ruled that he would have given a lighter sentence if not for the provision of the law requiring a mandatory minimum sentence so the provision was for an excessive punishment.

I doubt this will survive appeal to higher courts as they are stacked with judges who went along with taking possession of a firearm out of provincial jurisdiction, where it belongs under the constitution, and accepted that firearms law was “new” being about “safety” (not true at all) and so was a federal matter. Safety is a concept that was around long before Canada. Just ask the folks who took the land from the aboriginal people and defended chickens from coyotes and wolves. Safety was never an issue with the federal government until an MP was assassinated with one. Throwing out the constitution then was no more rational than now. It’s far easier to pass another law than to change the constitution…

Still, there is hope now that the registry is gone that judges may well see the flaws in the other parts of the law. Mandatory minimums have routinely been plea-bargained away. Apparently that could not be done as there was no other charge involved. This is an opportunity to take another chip off the federal Firearms Act, which has little to do with safety except licensing and storage.

Other concepts I would like to see removed from the Firearms Act?

  • That ordinary folks don’t have a right to own a firearm. A firearm is just a tool folks and can be used for good or evil just like a hammer or a knife. It is a crime to threaten or harm. There’s no need for extra offences in law just because a firearm is used. The complexity of the lives of ordinary folks using firearms is a waste of resources and breaks the fundamental rule of government, “Do no harm”. Folks who cannot buy a firearm because all the small businesses who used to sell firearms are gone, driven out by the paperwork are harmed. So are the small businesses that used to sell firearms and ammunition. Folks who live in remote places and receive little or no service from police or Natural Resources officers are harmed by the law as it now stands. One could reasonably ban criminals from owning firearms but banning ordinary good folks is wrong.
  • The storage provisions are inappropriate for tools people use. Education is the way to promote safety, not the criminal code. In the bush, a firearm may be in use 24×7 because that’s when the big bad predators arrive. There are places where police may take days to respond to a 911 call. If storage must be regulated it should be locally enforced and ordinary folks living in the reality of Canada should not be threatened by years in prison for protecting their lives. If a city with ~3 minute responses by police want a different standard, let them pass a by-law. Storage in a strong locked box makes no sense to people using firearms.
  • Giving up “home is castle” provisions of the constitution because one owns a firearm is wrong. The reason such provisions are in the constitution is because governments have abused such provisions in the past. We ignore history and are bound to repeat it if we throw out search warrants because city-dwelling legislators don’t like firearms.

5 Comments

  1. ram

    Good points Robert! I also note that ‘ioaohm’ continues to seriously misrepresent Australian gun control laws in practice. Gun crime, and crime in general, is way up here since John Howard forced through his gun laws. Gun ‘accidents’ are about to seriously increase with national parks being opened up for hunting (and effectively closed for tourism!). Australia is the perfect example of what NOT to do.

  2. Robert Pogson

    oiaohm wrote, “Unskilled self defence is pointless. You cannot kill a fox or any other predator with a gun if you cannot aim it correctly.”

    That’s why we have shotguns. No aiming required at typical effective ranges.

    oiaohm wrote, “Human are stupid with weapons without rules.”

    This is a fundamental flaw in “gun-control” laws. Humans through error, laziness, or emotion are stupid with or without rules. Criminals are humans. Good people are human. Making a rule/law has very little effect on widely held views, practices and customs. Education, on the other hand, can make a difference in the lives of individuals, their families and organizations. In Canada, the federal government and most provinces and territories have mandatory courses for basic training in safe use of firearms for hunting and basic firearms and restricted firearms (handguns). That is proven to save lives and is far more effective and costs much less than a firearms registry and having police harass citizens over firearms.

  3. oiaohm

    Even some of the Australian native tribes have traditional weapon laws. This is particularly important since some of there weapons use poisons. Like when not in use up tree or berried in pit. We have better options with locked boxes these days.

    Now it would be interesting to talk to the native tribes over there to find out if they have weapon storage laws by tradition. This could be as simple as hanging bow out of reach of children.

    Basically if Australian storage requirements don’t fit particular areas. There still should be storage requirements like gun must be above 170cm off ground/floor in a non climbable location if not locked away.

    Other I suspect if you ask bullet is not left in breach. So clip and bullets removed from gun would be another sane gun storage law. So people found leaving guns live can be corrected. Its not good for there own safety.

  4. oiaohm

    The funny one is a Gunman committing a crime with partners are also more likely to shot there partners in crime than a knife welder stab them.

    Really from my point of view ranged weapons should be one charge close combat weapons another.

    Ranged weapons show possible intent not to allow anyone to escape. Ranged weapons would include explosives, guns, bows, high power sling shots.

    Lets be truthful if a person wants to steal cash there are many ways todo so without putting shop people at risk.

    Yes it surprising how well a note with I have a bomb and wearing a jacket that looks bulky works.

    At a min there should be a lower punishment for those that use bluff instead of real weapon.

    Remember in Australia where I am. Shop keeper who has done firearm training could still have automatic pistol on them while they are in store uniform. The uniform does not have to be special for security personal.

    Firearm training requirement of our gun licensing is to make sure you can arm and shot it quickly and hit your target. No point firing at a person with a gun and miss then end up dead from their gun.

    There is some requirement for gun control and mandatory training for particular roles. You want to carry a gun for protection its perfectly fine in my eyes to legally mandate that you must be skilled enough to use it correctly.

    Australia gun laws have not put the criminals at the advantage. In fact criminals are more likely to give up if a shop person draws a gun here than to attempt to fight it out due to the fact the criminals know they are well trained shots. They are not going to miss. The training includes shooting through obstructions.

    Unskilled self defence is pointless. You cannot kill a fox or any other predator with a gun if you cannot aim it correctly. You are a hazard to everyone around you if you cannot handle or store a gun correctly. So there is some requirements of a training requirement. This does not remove your right to carry arms. Just says if you want to you must be trained.

    Sorry a firearm is never in 24×7 usage unless you have enough humans to be awake all the time.

    The idea of sleeping with a gun is a stupid one. The idea of leaving a gun laying someone is also a stupid one. Human predator might get in house without waking you. So end up using the gun you left unsecured against you.

    Storage provisions no matter how much you hate them are mandatory. Human are stupid with weapons without rules.

  5. bw

    The law in your bailiwick is, like similar laws in the US, intended to discourage brigands from using firearms. The major difference between using a pistol and using a knife as a threat in a robbery is the speed at which lethality occurs. A speedy person can run away from a knife, but not from a gun. A nervous gunman is certainly more likely to shoot inadvertently than a knife wielder is to stab, too.

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