Many people have asked me what judges will do with the new mandatory minimum jail sentences for several marijuana offences.  Two recent Ontario gun cases suggest that judges may refuse to impose mandatory jail sentences which are grossly disproportionate.

These cases are another set-back for the Federal governments “tough on crime” agenda, which has imposed mandatory jail sentences for many offences in an effort to limit the discretion of judges.

The Christopher Lewis Case: Trafficking in Firearms

The Christopher Lewis decision was released July 6, 2012.  Mr. Lewis was a street-level crack dealer.  He sold drugs to an undercover officer a few times.  He offered to sell him a .45 calibre handgun.  He did not actually have a handgun and did not seriously want to sell one.  He thought the offer of the gun would keep the undercover officer interested in more drug deals.

The Crown wanted the judge to impose the mandatory three-year jail sentence for trafficking in firearms.  The judge imposed a one-year jail sentence.  The judge ruled that the mandatory minimum sentence violated the Charter of Rights and Freedoms.  Justice Bellefontaine of the Ontario Court of Justice wrote: “Parliament has imposed a minimum penalty that addresses a worst case offence but which grossly overpenalizes the many lesser ways that the same crime can be committed.”

The Leroy Smickle Case: Possession of a Loaded Handgun

In February of 2012, an Ontario judge refused to impose the mandatory minimum three-year jail sentence for possessing a loaded handgun in the Leroy Smickle case.  Mr. Smickle was reclining on a sofa in his cousin’s apartment using a webcam to pose with his cousin’s loaded handgun.  He wanted to post the pictures on Facebook.  Unfortunately for him, the police executed a search warrant at that very moment.

Mr. Smickle had a family, a job, and no criminal record.  Justice Molloy of the Ontario Superior Court imposed a one-year conditional sentence of house arrest, stating: “a reasonable person knowing the circumstances of this case, and the principles underlying both the Charter and the general sentencing provisions of the Criminal Code, would consider a three year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable.”  The Crown is appealing the decision. (Read the case of R. v. Smickle here.)

Gun cases are taken seriously in Ontario

Many Canadians would argue that mandatory minimum sentences for gun offences are not grossly excessive.  Legal commentator and lawyer James Morton blogs: “Gun trafficking is one of those cases where the Courts should have exercised caution. A three year mandatory minimum sentence for firearms trafficking is not cruel and unusual — it is a sensible and stiff sentence crafted by Parliament and intended to deter a dangerous crime. The Courts should have deferred to the legislators in this case.”

The Lewis and Smickle decisions should not be taken as a signal that the courts are soft on gun crime or that minimums will be routinely declared unconstitutional.   The courts will impose the mandatory minimums in most cases.  Take for example the 2011 decision in R. v. Nur.  Mr. Nur was a 19-year-old first time offender who pleaded guilty to possession of a loaded semi-automatic handgun. He had been standing outside a community center when the police arrived.  A chase ensued during which he threw the gun away.  Despite Mr. Nur’s youth, Justice Code imposed a jail sentence of 40 months.

 The problems with mandatory minimum sentences

These guns cases illustrate the more general problems with mandatory minimum sentences:

  1. By removing judicial discretion it is inevitable that sympathetic cases will arise where the judge has no choice but to impose an unjust sentence, or to find the minimum sentence unconstitutional.
  2. Mandatory sentences transfer discretion from judges to prosecutors, who can choose to proceed on lesser charges if an accused person pleads guilty.  As a result, mandatory minimums may induce innocent people to plead guilty to avoid draconian sentences.  Judicial decisions can be scrutinized by the public and appellate courts, the same cannot be said for prosecutorial discretion which occurs behind closed doors.
  3.  Mandatory sentences have the potential to clog the court system.  An accused person who faces a mandatory minimum sentence has little incentive to plead guilty and avoid a trial.
  4. Finally, mandatory minimums sentences devalue rehabilitation.  Lengthy prison terms which are not connected to the particular circumstances of an accused person have the potential to create worse criminals.

The litigation over mandatory minimum sentences is set to increase drastically with the enactment of the mandatory minimum sentences for some marijuana offences.  As these gun cases illustrate, unfair mandatory minimum sentences can be effectively challenged in court.

 Media:

Mandatory minimum for firearms trafficking struck down, Canadian Press”, July 6, 2012

“Ontario judge strikes down mandatory minimum sentence for first-offence gun trafficking”, Megan O’Toole, National Post, July 6, 2012

“In challenge to Ottawa, judge refuses to impose mandatory sentence”, Kirk Makin, The Globe and Mail, February 12, 2012

Re-Evaluating Mandatory Minimums, CBC Radio, The Current, March 1, 2012