19-year old accused pleaded guilty to robbery using a prohibited or restricted weapon. Accused, along with a 13-year old accomplice, used an unloaded sawed-off rifle to rob a convenience store of $290 in lottery tickets. Gladue factors. Issue of whether 5-year mandatory minimum under s 344(1)(a)(i) CC violates s 12 of the Charter.
Held: minimum unconstitutional; 2 years less a day imposed.
Prior decisions upholding the constitutionality of mandatory minimums for robbery with a firearm and with a prohibited or restricted weapon “fail to give appropriate weight to the 1995 amendments to the Criminal Code which added sections 718, 718.1, 718.2 and 718.3 in their present form.” As per Proulx, 2000 SCC 5, “two of Parliament’s principal objectives in enacting this new legislation [were]: (i) reducing the use of prison as a sanction, and (ii) expanding the use of restorative justice principles”. 5-year minimum under 344(1)(a)(i) CC grossly disproportionate in both accused’s case and 3 reasonable hypotheticals. 2 years less a day was fit here.
P. Moreau – Defence Counsel