By Stacey Nichols and Joseph A. Neuberger, Neuberger & Partners LLP
In a bold and admirable ruling, Justice Anne Molloy of the Ontario Superior Court of Justice struck down the mandatory three year jail term that was a result of the Conservative government's 2008 Tackling Violent Crime Act, declaring that to impose a three-year jail sentence for Mr. Leroy Smickle would be "fundamentally unfair, outrageous, abhorrent, and intolerable." [i]
Mr. Smickle was sitting in his underwear on a couch in his cousin's apartment playing with a loaded revolver and making remarks about his manly qualities into a webcam hooked up to his laptop computer, while posting pictures of himself to his facebook account. Police burst into the apartment and arrested Mr. Smickle for possession of a loaded restricted firearm. Smickle had no prior criminal record. Mr. Smickle had not used the handgun in the commission of any violent act nor had he threatened anyone with the handgun.
Section 95(2) of the Criminal Code of Canada mandates a mandatory minimum of three years in prison for this type of weapons offence if the Crown proceeds by indictment. Smickle challenged the constitutionality of the three year minimum sentence and its hybrid nature, arguing that it was arbitrary and contrary to section 7 of the Charter. In her judgment, Justice Malloy noted that "in creating the hybrid offence with no minimum sentence on summary conviction, Parliament recognized that there will be circumstances in which possession of a loaded prohibited weapon will not require any term of imprisonment, and indeed could justifiably result in an absolute or conditional discharge." [ii]
Justice Malloy decided that this law violated Smickle's constitutional rights and struck down the mandatory three year provision. Justice Malloy wrote "to impose such onerous punishment would, in my view, be grossly disproportionate to what Mr. Smickle deserves for a single act of bad judgment and foolishness." [iii] Justice Malloy sentenced Mr. Smickle to a year in jail, where there was no danger to the public and where Mr. Smickle's actions were no more than a moment of "bad judgment". He was given credit for time served of 7 months. He was ultimately sentenced to serve the remaining 5 months as a conditional sentence, under house arrest.
Justice Malloy noted that section 12 of the Charter of Rights and Freedoms provides that everyone has the right not to be subjected to cruel and unusual punishment. Her Honour explained that it is difficult to justify inflicting cruel and unusual punishment on an individual to meet an overall legislative objective of general deterrence and that "some flexibility is required to deal with those exceptional circumstances whether the imposition of a mandatory minimum sentence would run afoul of the Charter." [iv]
The ruling is a step in the right direction in restoring the important principle of judicial independence and trust in the discretion that judges must have in order to deal with a myriad of facts scenarios that come before them on a daily basis. Sentencing is a complex matter that requires the careful balancing of many factors and principles. Judges must be trusted to use their discretion to impose just and fit sentences in order to respond to the uniqueness of any given case. What sentencing must not be is an arbitrary imposition of the supposed opinion of the majority, but rather a principled and thoughtful process engaging the full spectrum of sentencing options in order to truly promote a fair and just criminal justice system. This goes a long way to having efficient use of resources that would otherwise be wasted on lengthy trials, where an accused must fight the case at all costs because of the prospect of a crushing sentence.
The case will undoubtedly be appealed but for now it remains a beacon of light in an otherwise dark time of criminal law.
[i] Regina v. Smickle,  O.J. No. 612 (Ont. S.C.J.) at para 89
[ii] Regina v. Smickle, supra at para 53
[iii] Regina v. Smickle, supra at para 81
[iv] Regina v. Smickle, supra at para 117