Opening the Floodgates: Mandatory Minimum Gun Sentence Struck Down in Ontario
It’s so nice to be proven right so quickly. As my wife often reminds me, this is a rare event akin to a solar and lunar eclipse happening on the same day that the Leafs win the Stanley Cup but I’ll take it.
Less than a month after I ranked “Constitutional Challenges to the Tory Crime Agenda” as my number two prediction-to-watch for in my 2012 Crime & Punishment column, an Ontario Superior Court has launched the first salvo in the resurgent war against mandatory minimum sentences.
Justice Anne Malloy found Leroy Smickle guilty of possession of a loaded firearm but today refused to impose the mandatory minimum three-year sentence on the first offender saying that such a draconian term would amount to “cruel and unusual punishment” for such a “foolish act” in violation of the Charter.
Let the games — and the inevitable appeal — begin!
Edward,
Not on point but
R. v. J.A., 2011 SCC 28, [2011] 2 SCR 440
majority McLachlin C.J. (Deschamps, Abella, Charron, Rothstein and Cromwell JJ. concurring)
dissent Fish J. (Binnie and LeBel JJ. concurring)
R. v. D.A.I., 2012 SCC 5
majority McLachlin C.J. (Deschamps, Abella, Charron, Rothstein and Cromwell JJ. concurring)
dissent Binnie J. (LeBel and Fish JJ. concurring)
I’ll guess that the “who was on what side echo” hasn’t gone unnoticed on among the defence bar, particularly with Justice Binnie retired and Justices Lebel and Justice Fish not far from 75.
David
The reasons in R v. Smickle are now on CanLII.
[emphasis added by me]
The reasons don’t contain anything formally explaining why the Crown chose to proceed by indictment. However, there’s a “somebody in the Crown believed he’s a bad person who just hasn’t been caught yet” implication one might wish to read into this paragraph and other submissions made by the Crown.
Of course, if one wants to be very Machiavellian and assume that somebody high enough in the Crown, in a position to do something, also believes that the legislation is wrong and wanted it declared unconstitutional, Mr. Smickle provided the instance, and the ammunition.
R. v. Smickle, 2012 ONSC 602
a few more paragraphs worth reading, that might make some people wonder why the Crown chose to proceed by indictment