The decision in R v Smickle was published today (2012 ONSC 602) and is sure to have far-reaching effects.

The applicant, Smickle, had been visiting his cousin’s house and posing for facebook photos with his cousin’s handgun when police broke into the apartment to enforce a warrant. The accused was young, with no record, and no evidence established any intent to use the weapon. Nonetheless the prosecution proceeded by way of indictment in respect of possession of a restricted firearm and the accused was convicted and sentenced to the minimum three years confinement:

  • 95. (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of
    • (a) an authorization or a licence under which the person may possess the firearm in that place; and
    • (b) the registration certificate for the firearm.
  • (2) Every person who commits an offence under subsection (1)
    • (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
      • (i) in the case of a first offence, three years, and
      • (ii) in the case of a second or subsequent offence, five years; or
    • (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

The accused made an application to the Superior Court questioning the constitutionality of the minimum sentencing provisions, and Justice Molloy upheld the application. In the Court’s view, an appropriate sentence in the absence of s.95(2) would have been one year, the maximum sentence for the summary charge for the same offence.

The three year minimum was not only grossly disproportionate but entirely inconsistent with sentencing principles, which require the court to consider, inter alia, rehabilitation of the accused and whether other sanctions than deprivation of liberty are available to accomplish the objectives.

The gap between the one year maximum for the summary proceeding and the three-year minimum for the indictment in respect of the same hybrid offence was found to be arbitrary and without legislative purpose, to limit Crown discretion, and to lead to inconsistent and improper sentences.

In the result, Justice Molloy found the provision offended sections 7 and 12 of the Charter; it could not be saved by section 1 as it failed both the proportionality and minimal impairment tests.

If you or someone you know has been affected by mandatory minimum sentences, contact one of our lawyers using the links above or on the right.