R. v. Smickle, 2012 ONSC 602

The Defendant, Leroy Smickle, had been charged with possession of an illegal handgun. He was in his cousin’s house, holding the handgun and taking pictures of himself, and was caught by police during a raid on the premises. The circumstances were described by the trial judge as follows:

At just before 2:00 am on March 9, 2009, Leroy Smickle was engaged in a very foolish act. He was alone in the apartment of his cousin, Rojohn Brown, having elected (because he had to be at work in the morning) to stay in while his cousin went out to a club. Mr. Smickle was reclining on the sofa, wearing boxer shorts, a white tank top, and sunglasses. Thus clad, he was in the process of taking his picture for his Facebook page, using the webcam on his laptop computer. For reasons known only to Mr. Smickle, and which arguably go beyond mere foolishness, he was posing in this manner with a loaded handgun in one hand. Unfortunately for Mr. Smickle, at this exact moment, members of the Toronto Police Emergency Task Force and the Guns and Gangs Squad were gathered outside the apartment preparing to execute a search warrant in relation to Mr. Brown, who was believed to be in possession of illegal firearms. They smashed in the door of the apartment with a battering ram, and Mr. Smickle was literally caught red-handed, with a loaded illegal firearm in his hand. He immediately dropped the gun and the computer, as ordered to by the police, and was thereupon arrested.

The firearm did not belong to Mr. Smicke, he had no criminal record, and there was no evidence tying him to illegal activity, except for his mere possession of the firearm at the time police entered the apartment.

Mr. Smickle was convicted of possession of a loaded firearm, contrary to Section 95(1) of the Criminal Code, which carries a mandatory minimum sentence of three years’ incarceration. The Charter issue was raised on sentencing, and concerned the issue of whether three years’ incarceration was “cruel and unusual punishment” given the circumstances of Mr. Smickle’s offence.

The trial judge found that the imposition of such a “one-size-fits-all” sentence in the circumstances would indeed violate Section 12 of the Charter, and that the infringement could not be justified under the Oakes test since it was not proportional and not a minimal impairment of the right to be free from cruel and unusual punishment:

In my opinion, it is possible to craft a sentencing provision for the offence of possession of a loaded weapon that advances the government’s stated purpose of deterring crimes involving guns by increasing the severity of sentence for such crimes, while still vesting a residual discretion in the trial judge to prevent any Charter breach that might arise from the imposition of a mandatory sentence on absolutely every offender who meets the definition of the crime regardless of the circumstances. It is impossible to imagine or predict the variety of circumstances that might arise. The possibilities are endless and exceed the human imagination. This is not a “one-size-fits-all” type of offence. Therefore, some flexibility is required to deal with those exceptional circumstances where the imposition of a mandatory minimum sentence would run afoul of the Charter. The existing legislation is cast too broadly to prevent such abuse and does not meet the minimal impairment test provided for in Oakes.

The sentencing judge ultimately found that the appropriate sentence for Mr. Smicke was a one year conditional sentence to be served in the community, with seven months credit for time already served.

This decision paves the way for judges to exercise their discretion in sentencing, pursuant to age-old common law principles, rather than merely accepting the Napoleonic decrees of a Parliament which is blind to the facts of each individual case.

Decided by the Ontario Superior Court of Justice on February 13, 2012.
Click here for the full text of the decision.

Leave a Comment

Filed under Section 12: Cruel & Unusual Punishment

Leave a Reply

Your email address will not be published. Required fields are marked *