Lawyer Jeff Hershberg, left, and his client Leroy Smickle stand outside the University Ave. courthouse in Toronto on Monday, Feb. 13, 2012 after Superior Court Justice Anne Molloy ruled sentencing Smickle to the mandatory minimum of three years for a gun offence would constitute "cruel and unusual punishment."
Credits: ALEX CONSIGLIO/Toronto Sun
TORONTO -- The crime is the same -- possession of an illegal gun. But one Toronto man gets hit with the mandatory minimum three year sentence while another gets lucky and has a rogue judge who strikes down the new higher penalty as unconstitutional.
So which is it?
The constitutionality of the Harper government’s tough mandatory minimums for gun crimes will go under the legal microscope this month when a special panel of the Ontario Court of Appeal convenes to issue a uniform ruling on six recent cases.
The four-day hearing is scheduled to begin Feb. 19 -- five years after the Tackling Violent Crime Act was passed in Parliament -- and will seek to clarify the confusing landscape since Superior Court Justice Anne Molloy, among others, declared the law’s tougher penalties violated the Charter of Rights and Freedoms.
In her controversial decision last February, Molloy refused to impose the new mandatory three-year sentence on Leroy Smickle -- the “foolish” Facebook ham caught taking pictures of himself while posing in his boxers with his cousin’s loaded handgun.
Ruling that such a sentence would be “cruel and unusual punishment” for a first-time offender, she instead gave the employed 27-year-old a one-year conditional term.
Now five other Ontario men convicted of gun crimes want their mandatory minimum sentences thrown out as unconstitutional -- appeals which are being vociferously opposed by both the Ontario government, and, as an intervenor, the attorney general of Canada.
“Whether firearms are used as tools of intimidation or status, they present ‘the ultimate threat of death to those in [their] presence.’ When loaded, ‘death and serious injury are literally at hand, only an impulse and trigger-pull away,’” argues the factum from Ontario’s attorney general.
“The illicit nature and deadly risk inherent in a charge of possession of a loaded prohibited firearm justifies the three-year mandatory minimum sentence in all but the most minor and exceptional of cases.”
In two of the appeals, the defendants are seeking to overturn their mandatory five-year sentences as repeat gun offenders. But according to the federal government, the two Toronto criminals are poster boys for why we need harsher prison terms for gun-wielding criminals.
Sidney Charles, 30, has a lengthy criminal record and a lifetime ban on possessing firearms after he was nabbed for robbery with an imitation handgun. Even so, he was found with a loaded semi-automatic handgun in his bedroom with an illegal magazine and another 14 rounds of ammunition.
Ian Chambers shot twice himself, had two previous gun convictions and two separate court orders not to possess firearms. So much for those. On March 23, 2010, less than two years after his last conviction, he armed himself with .38 caliber handgun and refused to surrender when confronted by police.
“(They) serve as excellent examples why repeat offenders should face the stiff punishment,” argues the federal justice department.
The appeal court will also deal with the issue of unfairness under the current system. It’s up to the Crown prosecutor to decide how to proceed on a charge of possessing a loaded illegal gun: If they elect to go summarily, which is considered less serious, the maximum sentence is one year. But if they proceed by indictment, the mandatory minimum of three years kicks in.
That leaves a two-year differential for the same crime that “makes no rational sense,” Superior Court Judge Michael Code acknowledged -- yet still rejected Hussein Nur’s charter challenge on the issue and sentenced him to the three-year sentence just the same.
Nur’s appeal is one of the six to be heard. The Somalian-born refugee was a 19-year-old first offender when he was arrested outside the Driftwood Community Centre discarding a loaded .22 semi-automatic handgun.
His lawyers contend that studies have proven that tougher sentences don’t deter crime but may, in fact, do the opposite: sending a young first-offender to federal prison is enrolling him in a “finishing school for criminals.”
Also arguing against the constitutionality of mandatory minimums will be the Canadian Civil Liberties Association, the John Howard Society, the African Canadian Legal Clinic and the Advocates Society.
Whatever the appeal court’s ruling, this is only the first shot in a battle that is expected to end up before the Supreme Court.