The high court agreed Thursday to hear a pair of Crown appeals of Ontario cases in which the province's Appeal Court struck down the law, ruling it constitutes cruel and unusual punishment.
The sentencing laws increased the mandatory minimum sentences for possession of a loaded, prohibited firearm from one year to three years for a first offence and five years for a second offence.
They were enacted as part of the Conservative government's 2008 omnibus bill and the Supreme Court case will be a test of the Tories' tough-on-crime agenda.
As usual, the Supreme Court gave no reasons for agreeing to hear the mandatory minimum appeals.
When the Court of Appeal for Ontario struck down the law as unconstitutional in November, the judges said they could conceive of a scenario in which people were sent to prison for three years for what would amount to a licence violation.
In that situation, there is a "cavernous disconnect" between the severity of such an offence and the severity of the sentence, the court ruled.
The law as written could capture anyone from a person keeping an unloaded restricted gun, with ammunition accessible, in their cottage when their licence requires it to be in their home, to a person standing on a street corner with a loaded gun in his back pocket "which he intends to use as he sees fit," the court said.
Ontario's Appeal Court heard six mandatory minimum appeals together, but dismissed the arguments in some. Two cases are proceeding to the Supreme Court, including one in which the court considered what is called a reasonable hypothetical.
It raised the case of John Snobelen, a former Ontario cabinet minister who was charged after his wife told police — during marital difficulties — about a gun he bought in the U.S. and forgot to register.
He received an absolute discharge because the Crown proceeded summarily. The three-year mandatory minimum is in place if the Crown proceeds by indictment, which is more serious.
By making it a hybrid offence, which allows the Crown to pick whether it prosecutes the case as a summary or indictable offence, Parliament acknowledged that conduct captured by the offence runs the gamut, the court said. The Crown argued that for less morally blameworthy situations, the Crown will simply proceed summarily.
However, the court said, since those decisions are made early on, there will "inevitably" be cases that mean the Crown would have made a different choice as more facts emerge.
In Snobelen's case, if his wife had alleged Snobelen had used the presence of the gun to intimidate her, the Crown could have opted to proceed by indictment, the court wrote.
"In those circumstances, the three-year penitentiary term would surely be a grossly disproportionate sentence," the court ruled.