In 2008, the Conservative government introduced the Tackling Violent Crime Act, a bill that amended the Criminal Code by adding mandatory minimum sentences for those found guilty of various firearm offences.

Cronk JA, writing for the court, found that the mandatory minimum five-year sentence was unconstitutional, as it was grossly disproportionate when compared to a reasonable hypothetical.

[14] Further, McLachlin CJ held that courts may consider “reasonably foreseeable” hypothetical situations when conducting a section 12 Charter analysis,[15] for two reasons: McLachlin CJ rejected the argument that such hypotheticals would amount to an overbroad conferral of discretion on courts, writing instead that the question is one of statutory interpretation,[17] “grounded in experience and common sense”.

[19] McLachlin CJ dismissed the Attorney General of Ontario's argument that only a higher likelihood standard to find gross disproportionality would offer certainty.

Instead, McLachlin CJ found that the principle of stare decisis would make it unnecessary for courts to “duplicate the analysis” in every new section 12 case.

McLachlin CJ found a rational connection between the mandatory minimum sentences and Parliament's objectives, but held that there were “less harmful means of achieving the legislative goal”, including by adding elements to section 95(1) that would restrict the provision to cases of criminal or dangerous conduct.

Moldaver J suggested that McLachlin CJ's hypothetical examples of innocent licensing behaviour caught by section 95(1) “stretche[d] the bounds of credulity”[29] and were not reflected in the case law or in common sense,[30] since Parliament intended to craft section 95(1) as a hybrid offence that would allow Crown prosecutors significant discretion when electing to proceed by summary judgment or by indictment.

[35] As an example, Moldaver J considered a hypothetical driver suspected of gang-related activity possessing an unlicensed handgun in the back seat.

Moldaver J argued that this approach would be consistent with the Court's abuse of process jurisprudence,[38] and could be made out through both prosecutorial misconduct and “circumstances… where the integrity of the justice system is implicated”.

[40] Moldaver J also argued that it would not “[insulate] mandatory minimums from Charter scrutiny”, as the majority feared,[41] since the courts would retain ultimately authority to find a law unconstitutional or a sentence grossly disproportionate.

[42] Applying his framework to the case at hand, Moldaver J found that neither Nur's nor Charles’ sentence under section 95(2) of the Criminal Code was grossly disproportionate.

Instead, Moldaver J argued that such concerns were solely founded on hypothetical arguments and that the prior offences captured under section 95(2)(a)(ii) were sufficiently serious in nature.

[47] On the other hand, law blog The Court preferred the majority's test, writing that “the impotency of judges to configure a sentence that is unique to each offender… open[s] up a greater potential for failure of mandatory minimum sentences to be consistently proportionate to an offence.”[48] The Canadian Broadcasting Corporation referred to the case as the latest in a "legal losing streak" for the Conservative government.

[49] Justice Minister Peter MacKay criticized the Supreme Court's decision to employ a "far-fetched hypothetical scenario" to invalidate the law.

[2] Liberal Party leader Justin Trudeau was quoted as saying that mandatory minimum sentences do not "necessarily [keep] us that much safer and also [waste] large amount of taxpayers dollars".