Ontario court rules mandatory minimum sentence unconstitutional in gun case - The Globe and Mail
An Ontario Superior Court judge has struck down a mandatory sentence of three years for a firearm offence, saying the sentence would have had grave consequences for a defendant who intended no harm.
Madam Justice Anne Molloy said it would amount to cruel and unusual punishment to impose a three-year sentence on the accused, Leroy Smickle, who was arrested while posing with a loaded gun and striking a “cool” pose.
Instead, Judge Malloy gave Mr. Smickle a one-year conditional sentence to be served under house arrest.
The decision is almost certain to be appealed, putting the courts on a collision course with the Harper government, which has made mandatory minimum sentences a cornerstone of its tough-on-crime justice platform.
Judge Malloy said that the presence of handguns in the community is a grave concern, but that Mr. Smickle’s bad judgment fell well short of dangerous criminal intent.
“To impose such an onerous punishment would, in my view, be grossly disproportionate to what Mr. Smickle deserves for a single act of bad judgment and foolishness,” she said.
Judge Malloy found there was evidence that Mr. Smickle, 30, was holding a loaded firearm when police suddenly smashed down the door of a relative’s apartment where he was staying. Police were executing a search warrant on the owner of the apartment, Mr. Stickle’s cousin, who was believed to be in possession of illegal weapons. Judge Malloy said that Mr. Stickle did not intend to threaten the police, but was merely engaged in the “very foolish act” of posing with the gun while holding his laptop computer in his other hand.
The judge cited the fact that Mr. Stickle, who is right-handed, was holding the gun in his left hand when police burst in. She also said that Mr. Stickle was so startled by the intrusion that he dropped both the gun and his laptop.
Judge Malloy said the mandatory sentence of three years was out of line with Mr. Smickle’s offence, and that elements of the law containing the sentence are “irrational and arbitrary.”
She added that a three-year prison sentence would have a harsh effect on his fiancée and a young child he has from a previous relationship. He would also face great difficulty finding a job after surviving the rigours of three years in prison, she said.