CANADA: Ontario Crown appeals after court shoots down minimum gun sentences


By Bradley Bouzane, Postmedia News February 27, 2012

The Ontario Attorney General has appealed a recent court ruling that deemed mandatory minimum sentencing for gun crimes unconstitutional.

The Ontario Crown served the appeal on Friday, setting up a future appearance before the Ontario Court of Appeal.

One of the lawyers who argued the constitutional issues surrounding the sentence for Leroy Smickle of Toronto – who eventually received a lighter sentence for a gun crime despite the mandatory minimums imposed by the federal Conservative government – said it’s no surprise the Crown intends to contest the ruling from the Ontario Superior Court.

“There’s a section of the Criminal Code that was declared to be unconstitutional,” said Dirk Derstine, who was brought in by Smickle’s lawyers to argue the constitutional matter. “The Attorney General’s office has a mandate to defend the Criminal Code. It’s a very important section from the Crown’s point of view. I’d be surprised if they would just let it lie.

“We’ve all told Mr. Smickle that there may well be an appeal.”

Representatives for the Ontario Attorney General were not available early Monday evening.

Earlier this month, Smickle, 30, who was found holding a loaded handgun, was sentenced to five months under house arrest in addition to the equivalent of seven months spent in pre-trial custody. Mandatory sentences, under changes to the Criminal Code made by the Conservative government, would have required at least three years in prison for the crime.

Judge Anne Molloy described the mandatory sentence as “cruel and unusual punishment” and said sending Smickle to prison for such a lengthy term would be “fundamentally unfair, outrageous, abhorrent and intolerable.”

In her ruling, Molloy cited the section of the Charter of Rights that says every person “has the right not to be subjected to cruel and unusual punishment.”

The mandatory minimum gun law came into force in 2008 as part of the Conservative government’s “Tackling Violent Crime Act.” A similar approach is part of the new Bill C-10, the Conservative government’s omnibus crime bill.

The bill has been attacked by the Canadian Civil Liberties Association, which says there is little evidence mandatory minimums provide deterrence, enhance safety or lower crime rates.

Although the Toronto judgment will have important ramifications, the case it emerged from is oddly comic.

A Toronto police tactical squad burst into an apartment in the early morning hours one day in 2009.

Smickle happened to be spending the night at the apartment when officers came looking for his cousin.

When officers burst in, Smickle was on the couch in boxer shorts, tank top and sunglasses, a pistol in his left hand and a laptop computer in his right, apparently taking pictures of himself looking “cool,” court heard.

The gun wasn’t his and police found other guns in the tenant’s bedroom, court heard. Smickle had no criminal record, held a job, has a young child and a fiancee and was working to finish high school.

He was charged with possession of a loaded firearm.

Derstine said Monday that the appeal is likely to be joined with an earlier application dealing with the case of Hussein Nur, another Toronto man who was found in possession of a gun. He had no prior criminal record.

While he could not provide an exact timeline for the matter, Derstine said it would be about six months before the appeal was heard in court.

With files from the National Post

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