Reasonable Doubt: Mandatory minimum jail sentences shouldn't negate judiciary discretion

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      This is a bittersweet post for me. It will be the last column I write since I’m leaving Cobb St. Pierre Lewis in August and will be embarking on a new legal adventure at a civil litigation firm. It’s going to be quite the culture shock for me—my entire career thus far has been spent in criminal law. I’ll relish this one last opportunity to wax philosophical about a subject matter that I love and am passionate about.

      The news lately has been full of devastating tragedies involving guns. There was the terrifying shooting at a neighbourhood party in Toronto on July 16, followed shortly by the nightmarish massacre that occurred in Aurora, Colorado, on July 20 at a screening of The Dark Knight Rises.

      The only word to describe these events is horrific.

      Guns have played a prominent role in recent news for another reason. Two judges from Ontario have recently struck down mandatory minimum jail sentences as unconstitutional in a couple of cases involving firearms. Some are saying that judges are once again overstepping their boundaries.

      Of course we should punish those who illegally possess firearms and represent a real and dangerous threat to society. What better way to do that than to guarantee a stiff jail sentence if you’re convicted? However, not every case involving a firearm will deserve this consequence as is demonstrated by the following.

      In R. v. Smickle, the accused was alone in his cousin’s apartment at 2 a.m. He was on the sofa, wearing boxer shorts, a white tank top, and sunglasses. He was posing with a loaded handgun in one hand and was holding his laptop computer in the other, using a webcam to take a photo for his Facebook page. At that very moment, police officers, who were investigating Smickle’s cousin, barged into the apartment pursuant to a search warrant. Smickle was convicted at trial for possession of a loaded, prohibited weapon. The mandatory minimum sentence attached to a conviction for this offence is three years jail.

      Defence counsel successfully argued that to send this offender, with these particular facts, to jail for three years constituted cruel and unusual punishment contrary to section 12 of the Charter. Smickle was a 27-year-old man with no criminal record. It wasn’t his apartment nor was it his handgun. He made an extremely foolish choice to use the handgun in order to look cool on Facebook. When the police entered the apartment, he immediately dropped the handgun and was cooperative.

      In her decision, Judge Molloy acknowledged the “almost daily…deadly scourge represented by handguns in our community.” However, she decided that the mandatory minimum was unconstitutional in this unique set of facts and declared it to be of no force and effect. Instead of three years in jail, Smickle received a five-month conditional sentence order, with credit for seven months for time served in custody and time spent on bail.

      On July 6, 2012, Judge Bellefontaine of the Ontario Court of Justice issued his ruling in R. v. C.L. The accused was the target of an undercover operation. He sold cocaine numerous times to an undercover officer and told him he could also sell him firearms. No firearm was ever sold.

      The accused was convicted of trafficking in a firearm by offer. A mandatory minimum sentence of three years jail attached to this conviction. Defence counsel argued that the minimum sentence for what was nothing more than “an ill-advised sales pitch” to keep a customer interested in the drug purchases constituted cruel and unusual punishment. The judge agreed, finding that, while firearms are dangerous and a pressing public concern in the greater Toronto area, the hollow offer that formed the substance of the charge was less serious than the actual possession of a firearm.

      The judge declared the law to be of no force and effect and sentenced C.L. to one year for the drug trafficking charges, one year for the firearm offence (to be served consecutively), and gave him credit for the year he spent in pre-trial custody.

      Guns are a very real and pressing danger in our society. Our government has taken a strong stance against gun crime and is hoping that a minimum mandatory jail sentence will begin addressing the problem. While the intention behind the legislation is laudable, taking away judges’ discretion to impose an appropriate sentence based on the specific facts of a case and the circumstances of an offender is not going to help. In situations like the two cases I’ve just outlined, the judges did the right thing.

      That’s all, folks. I hope you’ve all enjoyed reading my thoughts as much as I’ve enjoyed sharing them with you in this great space.

      Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.

      A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.

      Comments

      2 Comments

      jonny .

      Jul 27, 2012 at 11:48am

      it is illegal to hold a gun in your own property, or in a friends property? that makes no sense to me.

      why was that guy even arrested?! if he dropped the gun as soon as the cops barged in, i dont think he did anything wrong.

      12 9Rating: +3

      Martin Dunphy

      Jul 27, 2012 at 1:00pm

      jonny:

      This is Canada (thank alleged god). If a handgun is not licensed and registered, it is illegal to even possess one, much less hold it "in your own property". You need special permission to even transport it. And even then, you can only take it to a room where other people like you, for some reason, make small pieces of lead go very fast and cause holes to appear in pieces of paper with bright circles painted on them.
      That "makes no sense to me", either.
      A chacun son gout.

      12 9Rating: +3