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!


  1. 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.


  2. The reasons in R v. Smickle are now on CanLII.

    [3] Having convicted Leroy Smickle of possession of a loaded firearm contrary to s. 95(1) of the Criminal Code, I must now impose a fit sentence for this offender and this crime. Mr. Smickle has no criminal record. Pursuant to s. 95(2) of the Code, the mandatory minimum sentence for a first offence under this provision, if prosecuted by indictment, is imprisonment for three years. Mr. Smickle challenges the constitutional validity of the minimum mandatory sentence I would be compelled to impose under s. 95(2). If the legislation is valid, I have no discretion; he must be sentenced to three years in a federal penitentiary.

    [9] For the reasons that follow, I find the minimum sentence imposed by s. 95(2) to be unconstitutional. The appropriate sentence for the type of conduct engaged in by Mr. Smickle does not approach three years in a federal penitentiary. To impose such a sentence on him in these circumstances, particularly in light of his unblemished past, constitutes cruel and unusual punishment and would breach s. 12 of the Charter. Further, in my view, the structure of the hybrid scheme for prosecution of this offence is irrational and arbitrary and breaches s. 7 of the Charter. The proper constitutional remedy is to strike down section 95(2) of the Criminal Code. This will take effect immediately. I consider one year to be an appropriate sentence for Mr. Smickle and I see no reason why that should not be served in the community as a conditional sentence.

    [emphasis added by me]

    [28] Thus, under the current scheme, if the Crown proceeds summarily, the maximum sentence is one year in prison and there is no minimum. If the Crown proceeds by indictment, the maximum sentence is 10 years and the minimum sentence is three years for the first offence and five years for a subsequent offence. Since the maximum sentence upon summary conviction is one year and the minimum sentence upon conviction on an indictment is three years, it is impossible to impose a sentence for anything between one and three years. The defence’s Charter argument under s. 7 focuses on this two-year gap as being arbitrary and unjustifiable. The defence’s Charter argument under s. 12 focuses on the three year minimum sentence on indictment as being cruel and unusual punishment, both in respect of this offender and reasonable hypothetical situations that could arise.

    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.

    [7] With respect to the “cruel and unusual punishment” issue, the Crown initially took the position that on the facts of this case it is a reasonable inference that the gun belonged to Mr. Smickle, that he brought it with him to his cousin’s apartment that night, and that he therefore had been walking about in the community with it. Based on that factual underpinning, it was argued that a three year sentence was within the appropriate range of sentence and could not be considered cruel and unusual punishment. As I will develop more fully below, my findings of fact do not support this scenario. Based on the facts as found, i.e. that Mr. Smickle was merely posing with a gun that he likely found in the apartment, the Crown argues that even if a three year sentence could be described as “unfit,” it does not reach the level of “cruel and unusual punishment” required to violate s. 12 of the Charter.

    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.

  3. 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

    [16] The Crown argues that it is a reasonable inference from those findings that Mr. Smickle had no knowledge of any gun in the apartment and that he must, therefore, have brought the gun himself. I do not agree that such an inference can reasonably be drawn from those words. However, if that inference does arise from the language I used, it was certainly not my intention to make such a finding. On the contrary. There was no evidence as to the ownership of the gun and I have no reason to believe that it belonged to Mr. Smickle. There was evidence before me that Mr. Smickle was never on the police radar; it was Mr. Brown who was believed to be the tenant of the apartment and Mr. Brown who was believed to be in possession of illegal firearms. Other guns were found in Mr. Brown’s bedroom. The point I was attempting to make in my oral reasons at the conclusion of the trial was that Mr. Smickle, as a mere visitor to the apartment, could not be fixed with knowledge of all of its contents. In particular, there was no basis for concluding that Mr. Smickle had knowledge of the other guns in Mr. Brown’s bedroom.

    [17] It would be an aggravating factor in sentencing if Mr. Smickle was the owner of the gun and had brought it with him to the apartment. I would therefore need to be satisfied of that fact beyond a reasonable doubt before taking it into account on sentencing.[2] I am not satisfied of that fact beyond a reasonable doubt. There is no evidence, beyond physical possession at the time of the police entry, linking Mr. Smickle to the gun. The most likely explanation, given the information about Mr. Brown and the other guns found in the apartment, is that Mr. Smickle found the gun somewhere in the apartment and took that opportunity to “show off” with it for the benefit of his friends on Facebook.

    [18] It took three smashes from the battering ram to break down the apartment door. Mr. Smickle testified that when he heard the first bang, he thought it was thunder. Upon hearing the second blow, he wondered if it might be the police. Then, with the third blow, the police entered, ending all speculation. When the police seized the gun from where Mr. Smickle dropped it, they learned that it was cocked, with a bullet in the chamber. The Crown urges me to find that Mr. Smickle cocked the gun when he realized the police were at the door, that this represented a serious danger to the police officers present, and that this is an aggravating factor in sentencing.

    [19] There is no question that the police officers were faced with grave danger when they entered the apartment and found Mr. Smickle with a gun in his hand. However, I do not accept that the evidence supports any inference that Mr. Smickle cocked the gun himself because he believed the police were at the door. The whole thing was over in a matter of seconds. Mr. Smickle had his laptop computer in his right hand when the police entered. There was no evidence before me as to whether it is possible to cock a gun of this type with one hand. However, even if this were possible, Mr. Smickle would have had very little time to do so – a second or less. Further, Mr. Smickle is right-handed and the gun was in his left hand. If he was truly intending to use it against the police, one would expect him to use his dominant hand. Finally, the conduct alleged is not consistent with the evidence of the police officers. They testified that Mr. Smickle had just begun to rise from the couch as they entered and that he immediately dropped both the gun and the computer. They were clear that the gun was never pointed towards them. I am satisfied on the evidence that Mr. Smickle never intended to use the gun as a weapon against the police and did not cock it in response to their being at the door.

    [20] I find on the evidence that Mr. Smickle was posing with the gun in his non-dominant left hand, while using his laptop in his dominant right hand to take his own photograph. The sunglasses were a prop, designed to make Mr. Smickle look “cool.” In my view, his use of the gun falls into the same category – a prop for the photograph. There is no evidence, whether direct or circumstantial, upon which I would conclude that his connection to the gun went any further than that.

    (ii) Circumstances of the Offender

    [21] Leroy Smickle was born in Toronto in October 1981. He was 27 at the time of this offence. He has no criminal record. He graduated from Grade 11 and has some Grade 12 credits. He has been working to complete his high school diploma through on-line credits. He was employed full-time with a cleaning company at the time of his arrest. He had made preliminary inquiries into becoming a correctional worker, but was unable to proceed with that due to these outstanding charges.

    [22] Mr. Smickle’s father lives in Jamaica and he has no contact with him. He was raised by his mother and his maternal aunt, both of whom live in Toronto and are highly supportive of him.

    [23] Mr. Smickle has a 13 year old child with whom he has no contact and a four year old daughter with whom he apparently enjoys an excellent relationship. He has been in a serious relationship with Sonia Campbell for three years and they are engaged to be married. She is not the mother of either of his children.

    [24] He does not appear to have had any prior problems with the law, apart from a Highway Traffic Act conviction for speeding and driving while suspended for which he received a suspended sentence and probation.

    [25] His pre-sentence report was quite positive. Its author found him to be a suitable candidate for community supervision with no recommended restrictions on his liberty other than that he attend school and/or maintain employment and report as required.