Argument that mandatory minimum is ‘bad law’ not hard to accept: Ontario judge

TORONTO – A mandatory minimum sentence enacted by the federal Conservatives that sees first offenders sent to prison for three years on a gun possession crime is a “bad law,” one of Ontario’s most senior judges suggested Wednesday.

Appeal Court Justice David Doherty is one of five judges hearing a joint set of six appeals, each of which involves mandatory minimum sentences for gun crimes.

The mandatory minimums were struck down in one case and upheld in the rest – though narrowly in one – and hearing all of them at the same time gives the court the opportunity to send a uniform message in a currently fragmented landscape.

The arguments, being heard all week, focus on the three-year mandatory minimum sentence for possessing a loaded prohibited gun – a law enacted in 2008 as part of the Tories’ omnibus crime bill.

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Lawyer Dirk Derstine, who represents a man convicted and sentenced under the law, argued against it Wednesday and began his remarks with broad strokes comments about what he called the dangers of the law.

Eventually, Doherty urged Derstine to get into the specifics of why he was arguing the law was unconstitutional, saying the focus of Derstine’s arguments thus far seemed to be “this is a bad law.”

“Speaking for myself, you’re not going to have that hard a time convincing me of that,” Doherty said.

Appeal judges often strenuously question the lawyers appearing before them, challenging them and playing devil’s advocate in order to explore the issues fully.

Doherty seemed far less convinced of the merits of the specific case of Leroy Smickle, the one case in which the trial judge struck down the three-year mandatory minimum as unconstitutional.

Smickle was caught alone in his boxers in his cousin’s apartment posing with a loaded handgun while taking pictures of himself on a webcam to post on Facebook. The police burst in looking for his cousin and illegal weapons and a surprised Smickle dropped the gun.

The Crown is taking issue with Judge Anne Molloy’s findings of fact and her characterization of Smickle’s behaviour as “adolescent preening.”

He was no adolescent, Smickle’s lawyer Mark Halfyard conceded.

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“It’s not becoming of someone who’s 27 years old, engaged to be married and has two kids,” he said. “It’s colossally stupid.”

But Doherty’s assessment of Smickle’s actions went beyond that, with the judge noting the gun was not just loaded but cocked and could have easily gone off when it was dropped, killing or injuring Smickle, the police officers or a neighbour.

“He’s not picking up a gun the way you pick up a pop,” Doherty said. “It’s very easy to kill somebody.”

The offence is a “prophylactic” one, allowing police to intervene “before someone is lying dead on the floor,” Doherty said.

“Here there’s a very real danger that somebody was going to end up shot,” he said. “(He’s) the exact guy the minimum was aimed at.”

The four days of hearings began Tuesday with lawyers for both the federal and Ontario governments raising the issue of recent gun violence in Toronto as they argued in support of the mandatory minimums.

Derstine on Wednesday said there is no denying the tragedy of gun deaths, but, he said, the tragedy of the over incarcerated must also be considered.

“Before we come forward with this, ‘Lock up your children, our safety’s under siege’…we must be careful to parse what that concern is,” he said.

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It is easy to become “preoccupied” with rising gun violence in a few Toronto neighbourhoods, Derstine said.

“But this is national policy,” he said.

Derstine also argued that the law violated the charter with a two-year gap in available sentences. The gun possession crime at issue is a hybrid offence, meaning the Crown can choose to proceed summarily or by indictment.

Summary convictions are treated less seriously and with less jail time than indictable offences. The penalty for the gun possession offence on summary conviction can range from an absolute discharge to one year in jail.

When the minimum sentence on indictment was raised from one year to three, the penalties for the offence on a summary conviction didn’t change.

That left a two-year gap between the one-year maximum on summary conviction and the three-year minimum on indictment.

That means offenders who fall into a less serious category, who may otherwise have received sentences of one or two years, are being forced into serving harsher sentences, Derstine said. The very fact that less severe penalties are available for the offence means Parliament recognized some shouldn’t be subject to the mandatory minimum, he said.

“Mid-range offenders are being deprived of the ability to argue for a fit and appropriate sentence,” he said. “You’re offering a hand to Peter and slapping down Paul and Frank.”

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Several organizations are also intervening in the cases. The African Canadian Legal Clinic argued Wednesday that the law will have a “grave impact” on the black community. Longer sentences will perpetuate the disadvantages people in the community already face, the clinic’s lawyer argued. That should be taken into account on sentencing, much as it is already for members of First Nations communities, argued Faisal Mirza.