Mr. Vandyke was licensed to possess restricted firearms and owned a lawfully registered handgun. The Court found (2013 ABPC 347) that on the day he was arrested, he had been cleaning the handgun in his garage. He placed it on the seat of his motor vehicle, where he forgot it. Later that day, he noticed the firearm on the seat. At that point, he was on his way to a bar. As he intended to leave his truck parked at the bar overnight, he decided to bring the firearm with him. He put it into his pants and went into the bar. There, he briefly showed the firearm to a patron (not in a threatening manner). Soon after, the police were called. Mr. Vandyke was arrested without incident.
Mr. Vandyke was charged, among other things, with an offence under section 95 of the Criminal Code (possession of a restricted firearm in a place not authorized, while loaded or with readily available ammunition). Why the firearm was loaded, given that it had been set down during cleaning, is not clear in the decision.
A guilty plea was entered to the section 95 offence, along with two others. The defence then challenged the constitutionality of the mandatory minimum sentence under s. 95, on the basis that it was contrary to section 12 of the Charter of Rights and Freedoms, the prohibition against cruel and unusual punishment. Section 95 creates a hybrid offence. Where the Crown proceeds by indictment, the minimum penalty is a three year penitentiary sentence. Where the Crown proceeds by summary procedure, there is no minimum sentence. The Crown had elected to proceed by indictment against Mr. Vandyke.
The Court in Vandyke relies heavily on the decision of the Ontario Court of Appeal in R. v. Nur, 2013 ONCA 677 in finding that the mandatory minimum where the Crown proceeds by indictment is “so excessive as to outrage the standards of decency” (quoting from Nur at para. 179). After declaring the three year mandatory minimum to be of no force or effect, the Court sentenced the accused to a 12 month conditional sentence order.
While this decision doesn’t extend the analysis carried out by the Ontario Court of Appeal in Nur (and the companion case of R. v. Smickle, 2013 ONCA 678), it is the first Alberta decision I am aware of that finds the minimum sentence for possession of a loaded restricted or prohibited firearm unconstitutional.
The Ontario Crown may appeal the rulings in Smickle and Nur. As those decisions were released November 12, 2013, the appeal period has not yet expired. As of January 13, 2014, no notice of appeal on either case was noted on the Supreme Court of Canada’s case information website.