What is the effect of section 12 of the Charter on a minimum sentence imposed under section 344(a) of the Criminal Code?

British Columbia, Canada

The following excerpt is from R. v. Wust, 1996 CanLII 740 (BC SC):

To attempt to restate the above, right thinking persons will accept tough measures if tough but fair. Fairness in respect of time served is, in my view, to be found in proper exercise of the judicial discretion offered by way of s. 721(3). In considering the degree of disproportionality, I note the doubling effect of what I consider to be the modest circumstances of the first example and I also note the arbitrary effects illustrated in the second and third, which add to a perception of unfairness. This arbitrary element is at least marginally relevant on the principles set out in Smith and in total, these considerations lead, in my opinion, to a finding of a s. 12 breach. Charter s. 1 requires consideration of whether an important legislative objective justifies overriding a constitutionally protected right or freedom. This decision does not impugn the four year minimum as being an inappropriate sentence for an offender under s. 344(a), a section obviously designed to effect the important purpose of reducing the frequency of this violent offence, especially when perpetrated through the use of a firearm. So long as an appropriate remedy is fashioned pursuant to Charter s. 24, there is no dilution of what continues to be effectively four years of incarceration. The appropriate remedy, in my view, is to declare that the discretion allowed by s. 721(3) shall be applicable to sentences imposed under s. 344(a). By another analysis, this might be likened to applying consideration of s. 12 in the construction of the application of s. 721(3) to this mandatory sentence, a consideration which was not available when Regina v. Brown was decided.

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