In challenge to Ottawa, judge refuses to impose mandatory sentence

TheGlobeandMail.com – news/politics
Published Monday, Feb. 13, 2012. Last updated Tuesday, Feb. 14, 2012.   Kirk Makin Justice Reporter

An Ontario Superior Court judge has refused to impose a mandatory three-year sentence on a man caught with a loaded handgun, putting the courts on a collision course with the federal government’s belief in fixed sentences that provide judges with little discretion.

In a decision Monday, Madam Justice Anne Molloy added fuel to a rising sense of judicial anger over mandatory minimum sentences by striking down the compulsory term as cruel and unusual punishment.

Instead, she sentenced the defendant, Leroy Smickle, to a year of house arrest. Judge Molloy concluded that Mr. Smickle, a 30-year-old Toronto man with no criminal record, had merely been showing off by striking a “cool” pose over the Internet when police happened to burst into an apartment on March 9, 2009, in search of another man.

The government has adamantly held to the view that mandatory minimums are a necessary restraint on judges who might impose inappropriately lenient sentences for certain offences. That is part of a larger tough-on-crime agenda that includes everything from harsher prison sentences to restricting parole and pardons.

Several months ago, in another major challenge in Ontario Superior Court, a similar sentencing provision was upheld in a firearms case, Regina v. Nur. That, combined with the Smickle ruling, could well result in a high-profile appeal that goes all the way to the Supreme Court of Canada.

Critics argue that a one-size-fits-all sentencing policy inevitably leads to unfair results. In her ruling Monday, Judge Molloy added her voice to those criticisms by saying there are an endless number of scenarios where a fixed sentence would be so cruel as to violate the Charter of Rights.

She said the federal goal of deterring crime is understandable and effective – up to a point. The problem is that individuals can be unfairly crushed along the way, she said. The judge cited Mr. Smickle as just such a case – a peaceable man with solid career prospects whose life would likely have been ruined by the imposition of a three-year penitentiary sentence.

“In my opinion, a reasonable person knowing the circumstances of this case and the principles underlying both the Charter and the general sentencing provision of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable,” Judge Molloy said.

At the same time, she noted that Mr. Smickle was “guilty of colossally bad judgment” for believing that posing with a loaded gun would enhance his image with his friends on Facebook. When police broke down the apartment door, Mr. Smickle was reclining on a sofa operating a webcam. He had the gun in one hand and his laptop computer in the other.

Defence counsel Dirk Derstine and Jeff Hershberg argued that Mr. Smickle had no intention of threatening the police. Judge Molloy agreed, noting that Mr. Smickle, who is right-handed, was holding the gun in his left hand.

She also observed that Mr. Smickle was so startled by the intrusion that he dropped both the gun and his laptop – hardly the act of a cool criminal who was primed to shoot the officers.

Judge Molloy emphasized that penitentiaries are violent places where harsh conditions and seasoned criminals tend to militate against offenders emerging to become better citizens.

“Mr. Smickle is not a person who needs to be rehabilitated,” she said. “However, keeping Mr. Smickle employed and attached to his family and community is the best chance of ensuring he stays on the right side of the law.”

The judge noted that bad drafting was partially to blame for the legal straitjacket she found herself in. She took issue with a discrepancy in the firearms law, passed in 2008, which allows a judge to impose a more lenient sentence should the Crown choose to proceed summarily with a charge – an option that includes no jury and swifter resolution.

She said that if the Crown instead proceeds by indictment, as it did in Mr. Smickle’s case, the minimum sentence automatically becomes three years.

The discrepancy created by the two sentence ranges is so “irrational and arbitrary” that it would shock the community were she to impose the mandatory sentence on Mr. Smickle, Judge Molloy said.

She also refused to suspend her judgment to allow the government to fix the law before her ruling takes effect. “If a suspension is ordered, there is a real risk that individuals will be subjected to the arbitrariness of the scheme and/or cruel and unusual punishment during the period of suspension,” she said.

Judge Molloy added that nothing in her judgment should be read to minimize the danger of firearms. “As a trial judge in Toronto,” she said, “I am painfully aware, and am reminded almost daily, of the deadly scourge represented by handguns in our community.”

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