This week the Ontario Court of Appeal is set to hear a series of cases that challenge the constitutionality of mandatory minimum sentences. CCLA has objected to mandatory minimum sentences for years, in large part because they take judges’ discretion to determine the sentence that is fit for the circumstances of the crime and the accused. At times, mandatory minimum sentences may impose disproportionate amounts of jail time on individuals whose actions, while illegal, should not result in years of imprisonment. This week we will appear before the Court of Appeal to again argue that mandatory minimums violate constitutional rights.
The facts of one of the cases the Court of Appeal will be considering serves as an example of the danger posed by mandatory minimums. Leroy Smickle had done what the lower court called “a very foolish act.” He was at his cousin’s apartment for the night, and because he had work the next morning, he had decided to stay in while his cousin went to a club. He was doing what some people do when they are at home alone – posing for facebook self-portraits using the camera on his laptop. At some point, he decided that he would pose for a facebook photo while holding a handgun. At just that moment the police burst in to search his cousin’s apartment for illegal firearms. Although his cousin had been the target of the search, Mr. Smickle had been caught holding a loaded handgun without the appropriate permits. He dropped the laptop and the handgun immediately, as ordered by the police, and was charged with possession of a loaded firearm contrary to s. 95(1) of the Criminal Code – an offence that carries a mandatory minimum of three years in jail. The judge found that sending Mr. Smickle, who had no prior criminal record, to jail for three years for posing for a facebook photo, was disproportionate and hence a cruel and unusual punishment, contrary to the Charter.
Mr. Smickle’s act is not the only “foolish” act that could lead to a mandatory three year sentence. Under s. 95, a person can be convicted without
committing a “gun related crime”, and, in fact, without “using” a gun at all. People who could be caught under this section of the Criminal Code would include:
- a teenager shows off his father’s firearm at a party in a picture that is posted online,
- a family member who transports a firearm to a person who is legally allowed to have it,
- a person who buys a ranch but doesn’t register the firearm that was in one of the buildings,
- an American tourist brings a firearm to Canada that is licensed in the US but not in Canada, or
- a firearms collection that is inherited by family members who never registered the guns.
For these individuals it would not matter that their intentions were good, that they had no criminal record, that they had jobs, families and commitments. The law simply states that, if the Crown proceeds by indictment, they must go to jail for three years. The CCLA will be intervening in the Smickle case and its companion, Nur, to argue that the mandatory minimum sentence imposed on this offence is unconstitutional because, in cases like those listed above, three years behind bars is so disproportionate that it amounts to cruel and unusual punishment.
To read more about CCLA’s position on mandatory minimums you can read our op-eds here or here, or take a look at our submissions on the most recent omnibus crime bill which instituted mandatory minimums for drug crimes.