Judge rejects "outrageous" mandatory gun sentence

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Columbo
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Judge rejects "outrageous" mandatory gun sentence

Postby Columbo » Mon Feb 13, 2012 11:30 pm

Judge rejects ‘outrageous,’ unconstitutional mandatory gun sentence

The Conservative government’s tough-on-crime rewriting of the Criminal Code took a potentially fatal blow when an Ontario judge struck down mandatory minimum prison sentences for gun crimes, declaring them “cruel and unusual punishment.”

Ontario Superior Court Judge Anne Molloy concluded that sending a man to prison for three years in the case before her, even though he was found holding a loaded handgun, was unconstitutional.

Leroy Smickle, 30, of Toronto, was caught in “adolescent preening” with a pistol and a web camera when, coincidentally, police burst into his cousin’s apartment.
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“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,” she wrote in her judgment released Monday.

The Criminal Code’s mandatory minimum provision violates Smickle’s Charter rights she ruled and, as such, she struck it down.

“Section 12 of the Charter provides that, ‘Everyone has the right not to be subjected to cruel and unusual punishment.’ That right is enshrined in our Constitution, which is declared to be the ‘supreme law of Canada’ such that any law inconsistent with the Charter is ‘to the extent of the inconsistency, of no force and effect,’” she wrote.

Justice Molloy understood the potential danger of guns but decried one-size-fits-all punishment.

“As a trial judge in Toronto, I am painfully aware, and am reminded almost daily, of the deadly scourge represented by handguns in our community,” she wrote.

“Possession of a loaded restricted or prohibited firearm is a serious matter. But, typically, it is the circumstances in which the gun is possessed, and what is done with the gun, that give rise to the more serious concerns affecting community safety.

“It is also difficult to see how inflicting cruel and unusual punishment on an individual can be justified based on an overall legislative objective of general deterrence.”

Ottawa defended mandatory minimums and suggested an appeal is likely.

“Canadians are concerned about crime — especially crimes involving firearms. To respond to these concerns our government passed mandatory minimum sentencing for certain serious gun crimes,” said Julie Di Mambro, spokeswoman for Rob Nicholson, the Minister of Justice.

Brendan Crawley, a spokesman for the Attorney General of Ontario, said the Crown is reviewing the decision before deciding what to do next.

The mandatory minimum gun law came into force in 2008 as part of the Conservative government’s “Tackling Violent Crime Act.” A similar approach is part of the new Bill C-10, the Harper government’s omnibus crime bill.

The bill has been attacked by the Canadian Civil Liberties Association, which says there is little evidence mandatory minimums provide deterrence, enhance safety or lower crime rates.

Although the Toronto judgment will have important ramifications, the case it sprang from is strikingly droll.

It took three smashes of a battering ram for a Toronto police tactical squad to burst into an apartment at 2 a.m. in 2009.

Smickle happened to be spending the night at the apartment when officers came looking for his cousin. Smickle thought it was thunder.

When officers burst in, he was on the couch in boxer shorts, tank top and sunglasses, a pistol in his left hand and a laptop computer in his right, apparently taking pictures of himself looking “cool,” court heard.

The gun wasn’t his and police found other guns in the tenant’s bedroom, court heard. Smickle had no criminal record, held a job, has a young child and a fiancée and was working to finish high school.

He was charged with possession of a loaded firearm.

Justice Molloy sentenced him to serve five months under house arrest in addition to the equivalent of seven months spent in pre-trial custody.

Jeff Hershberg, one of his two lawyers, was elated.

“The effect of this well-reasoned and thorough judgment is to put back in the hands of the judges the discretion during a sentencing hearing to provide a just and fit sentence,” he said after court.
http://news.nationalpost.com/2012/02/13/judge-rejects-outrageous-unconstitutional-mandatory-gun-sentence/
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Re: Judge rejects "outrageous" mandatory gun sentence

Postby gotchya » Tue Feb 14, 2012 1:07 am

A crazy decision that I hope will be overturned on appeal. I don't see how a judge can leave the realm of judiciary and enter the realm of law making. If Parliament decides to enact legislation with minimum mandatory sentences it should generally be respected.

This guy wasn't caught j-walking, he was caught with a loaded firearm.
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Re: Judge rejects "outrageous" mandatory gun sentence

Postby clachambre » Tue Feb 14, 2012 5:17 am

The guy was sitting inside a private residence... yes, playing with a loaded gun was stupid, regardless of where he was. But I agree with the judge when she says that the more important issue is what the person was doing with the gun. His intention was clearly not violent.
Seems like a stroke of horrible luck to me.

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Re: Judge rejects "outrageous" mandatory gun sentence

Postby Bald Man » Tue Feb 14, 2012 7:29 am

So if judges don't follow the law, what happens to them? What's the point in having law if judges think they can create their own?

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Re: Judge rejects "outrageous" mandatory gun sentence

Postby ryan.p » Tue Feb 14, 2012 8:51 am

Bald Man wrote:So if judges don't follow the law, what happens to them? What's the point in having law if judges think they can create their own?


pendiente resbaladiza
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Re: Judge rejects "outrageous" mandatory gun sentence

Postby SupahDuck » Tue Feb 14, 2012 1:33 pm

ryan.p wrote:
Bald Man wrote:So if judges don't follow the law, what happens to them? What's the point in having law if judges think they can create their own?


pendiente resbaladiza


Yes, very slippery.....
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Re: Judge rejects "outrageous" mandatory gun sentence

Postby GoodWitness » Tue Feb 14, 2012 2:52 pm

Bald Man wrote:So if judges don't follow the law, what happens to them? What's the point in having law if judges think they can create their own?

Well, as I understand it, the crown can now appeal, and it can be decided by a higher court, and so on, and so on, until the Supremes decide. Isn't that how it's supposed to work?

I thought the intention of this law was to be a strong deterrent to committing violent crimes with guns. He was charged with possession of a loaded firearm - and was in his cousin's house at the time, not out committing a crime with the gun. (Stupidity isn't a crime yet, I don't think...)

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Re: Judge rejects "outrageous" mandatory gun sentence

Postby SupahDuck » Tue Feb 14, 2012 3:55 pm

I'm sorry, but if he wants to play the part (i.e. posing with a loaded gun for a picture to post online), then he'd damn well better be able to do the time.

Having an inexperienced idiot waving a loaded gun around is just a recipe for disaster..... there was a very real possibility that the cops doing the warrant entry could have been shot...... there HAS to be a strong deterrent for this crime, REGARDLESS of the circumstances.

If you have a loaded gun in your hand, the assumption is that you're going to use it. No excuses.
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Re: Judge rejects "outrageous" mandatory gun sentence

Postby 48highlander » Tue Feb 14, 2012 9:31 pm

Was listening to this story on CFRB 1010 on the way to the gym this afternoon, the host was going to have Irwin Cotler on (liberal justice critic), since he (Cotler) is predictably foaming at the mouth because of this law and how this instance shows why man-mins are dumb. I said was going to be on, but I guess after the host mentioned a few time that he intended to ask Cotler if he thinks this law is/was a bad idea, then why did he and several other Liberals/NDP vote for it in the first place, Cotler decided to rethink his appearance.

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Re: Judge rejects "outrageous" mandatory gun sentence

Postby Bald Man » Tue Feb 14, 2012 10:04 pm

GoodWitness wrote:
Bald Man wrote:So if judges don't follow the law, what happens to them? What's the point in having law if judges think they can create their own?

Well, as I understand it, the crown can now appeal, and it can be decided by a higher court, and so on, and so on, until the Supremes decide. Isn't that how it's supposed to work?

I thought the intention of this law was to be a strong deterrent to committing violent crimes with guns. He was charged with possession of a loaded firearm - and was in his cousin's house at the time, not out committing a crime with the gun. (Stupidity isn't a crime yet, I don't think...)


I know it will be appealed, at least I hope so. I'm just thinking of the judges who face no repercussions for blatantly disobeying the law.

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Re: Judge rejects "outrageous" mandatory gun sentence

Postby SupahDuck » Wed Feb 15, 2012 12:00 am

He sure does look like a poor little innocent boy caught in the wrong place at the wrong time....... NOT!

:nono:

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Re: Judge rejects "outrageous" mandatory gun sentence

Postby gotchya » Wed Feb 15, 2012 12:04 am

Bald Man wrote:I'm just thinking of the judges who face no repercussions for blatantly disobeying the law.

I agree.

It is not the job of Judges to make or repeal law, that is something reserved for Parliament, as envisions in the Constitution by the separation of the three branches of government. For one to overstep their purview it undermines the integrity of each institution.
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Re: Judge rejects "outrageous" mandatory gun sentence

Postby gotchya » Wed Feb 15, 2012 12:14 am

R. v. Smickle, 2012 ONSC 602 (CanLII),http://canlii.ca/t/fq2d0

I did a quick run through, and it appears that this decision was more of someone having an axe to grind than anything else.
Last edited by gotchya on Wed Feb 15, 2012 9:33 am, edited 1 time in total.
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Re: Judge rejects "outrageous" mandatory gun sentence

Postby FedCO » Wed Feb 15, 2012 6:10 am

gotchya wrote:R. v. Smickle, 2012 ONSC 602 (CanLII), <http://canlii.ca/t/fq2d0>

I did a quick run through, and it appears that this decision was more of someone having an axe to grind than anything else.


Is there anything the "Joe Public" can do to help this be resolved. Like email and call your MPP and parliament and say how disgusted we are with how judges don't follow the law?

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Judge rejects "outrageous" mandatory gun trafficking sentenc

Postby gotchya » Sat Jul 07, 2012 6:14 pm

Rather than start a new thread, figure just revive the old one...

In the latest blow to the Harper government’s tough-on-crime agenda, an Ontario judge has struck down mandatory minimum sentencing for first-offence firearms trafficking.

The landmark ruling in an Oshawa courthouse Friday centred on the case of 21-year-old cocaine dealer Christopher Lewis, who faced the mandatory three-year sentence after offering to sell an undercover policeman a .45 caliber handgun — despite having no access to the gun nor any intention to carry through on the sale.

His lawyer, Jeffrey Mazin, challenged the constitutionality of the sentence, calling it “cruel and unusual punishment.” While Justice Paul Bellefontaine did not agree the prison term was grossly disproportionate for Lewis, who has racked up numerous convictions over the years, he deemed the law in a broader sense to be fundamentally unconstitutional.

“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,” Judge Bellefontaine wrote in his 20-page ruling. “The minimum three-year sentence does not address the different degrees of moral blameworthiness associated with the different circumstances under which the offence can be committed.”

In addition to dropping Lewis’s sentence on the firearms offence to one year, Judge Bellefontaine declared section 99 (2) (a) of the Criminal Code — which sets out a three-year minimum sentence for first-offence firearms trafficking — to be “invalid and of no force and effect.”

This is the second recent setback for the federal government’s 2008 Tackling Violent Crime Act, which strengthened bail provisions and increased mandatory prison sentences for serious firearms offences. In February, a Superior Court judge struck down another amended section of the Criminal Code that mandated a three-year minimum sentence for a first-offence loaded firearm possession conviction. The Crown is appealing that decision.

In the Lewis case, the Crown had recommended an eight-year sentence, with three years for the firearms charge and five years for associated cocaine trafficking charges. Lewis had dangled the prospect of a gun sale in front of an undercover officer to keep him interested in his services as a cocaine dealer, the court heard — even though Lewis had no intention of delivering the promised firearm. The defence had asked for a total sentence of two years.

On Friday Judge Bellefontaine imposed three years, including one for the firearms offence.

Wearing a white T-shirt and glasses and with his black hair styled in a short mohawk, Lewis stood in the prisoner’s box for the duration of the judge’s ruling and nodded his head repeatedly toward the end. Outside court, Mr. Mazin lauded the outcome.

“This ruling demonstrates that not all offences involving firearms, real or imagined, should carry the same penalty,” he said. “In this case, it was found that Mr. Lewis had neither the inclination nor the wherewithal to go through with the sale. It’s a victory for Charter rights in this country.”

A spokesman for the Crown declined to comment on Judge Bellefontaine’s ruling, saying only that the Crown was “reviewing the judge’s decision to determine the next steps,” which could include an appeal. The federal Justice Department also declined to comment.


I light of the recent shootings in Toronto, you'd figure the judge would see the need for stiff penalties for those who traffic in weapons, but perhaps I'm the only one who would think so foolishly.
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