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Mandatory minimum gun sentences unconstitutional: Ontario top court

By Michele Mandel, Toronto Sun

Leroy Smickle leaves University Ave. courthouse 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.” Christopher Lewis plans to launch a challenge to the same law on Friday. (ALEX CONSIGLIO/Toronto Sun files)

Leroy Smickle leaves University Ave. courthouse 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.” Christopher Lewis plans to launch a challenge to the same law on Friday. (ALEX CONSIGLIO/Toronto Sun files)

TORONTO - 

One size doesn’t fit all.

In a landmark decision Tuesday, the Ontario Court of Appeal has declared mandatory minimum sentences for gun possession unconstitutional because they constitute “cruel and unusual punishment.”

But Ontario’s highest court isn’t worried that these automatic penalties are too cruel for dangerous gun criminals. Instead, the judges believe they’re “cruel and unusual punishment” because they would equally apply to even the least blameworthy offender.

The unanimous ruling comes after the appeal court convened a special five-judge panel to look at six cases — four of them from Toronto — where the men were appealing their automatic sentences for gun possession under the Harper government’s 2008 tough-on-crime amendments. Under Section 95 of the Criminal Code, first offenders get a mandatory minimum three-year term while repeat offenders get five years.

In throwing out the mandatory minimums, the judges weren’t being soft on crime. Justice David Doherty, writing on behalf of the unanimous panel, said parliament’s stiffer sentences for gun-wielding criminals were a “rational legislative response to the very real public safety concerns.”

The problem, he warned, is that Section 95 “casts a wide net” and is a catch-all that would treat someone who poses no risk to the public in the same way as a dangerous criminal.

In a “reasonable hypothetical,” Doherty described a licensed gun owner who has an unloaded firearm and ammunition in a nearby drawer. If he safely stored that gun at his cottage rather than at his home, as required by his firearms certificate, he would still trigger the mandatory three-year federal prison term for what amounts to a “licensing offence.”

“No system of criminal justice that would resort to punishments that ‘outrage standards of decency’ in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry,” Doherty wrote on behalf of the court. “Similarly, no system of criminal justice that would make exposure to a Draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system.”

Among the six cases considered was that of Leroy Smickle, a 27-year-old Toronto man who faced an automatic three-year term for a first offender after police found him with his cousin’s loaded handgun as he posed for Facebook. Justice Anne Molloy was the first judge in Ontario to challenge the new Conservative mandatory minimum and in 2012 refused to sentence Smickle to three years.

But even while throwing out mandatory minimums, the appeal court said serious gun crimes require harsh sentences and overruled Molloy’s one-year conditional sentence for Smickle as “totally inadequate.”

“Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation,” the court ruled.

In the remaining five cases, the appeal court refused to reduce any of the sentences.

Sidney Charles, 30, was convicted of possessing a loaded semi-automatic handgun in his bedroom with an illegal magazine and another 14 rounds of ammunition — despite a lifetime ban on possessing firearms. Ian Chambers, with two previous gun convictions and two separate court orders not to possess firearms, was caught by police with a loaded .38-calibre handgun.

Both Toronto gunmen had their mandatory five-year prison terms as repeat offenders declared unconstitutional — but didn’t win any shorter prison time because of the severity of their crimes.

The appeal court also refused to reduce the 40-month sentence handed to Hussein Nur, a 19-year-old first offender arrested outside the Driftwood Community Centre after discarding a loaded .22 semi-automatic handgun. “A significant jail term was still necessary in the circumstances of this case,” Doherty wrote.

So the sky is hardly falling after this ruling.

Lawyer Dirk Derstine, who argued Nur’s appeal, said the court’s decision is likely headed for the Supreme Court. But in the meantime, he believes their judicial warning is clear: “Be careful of mandatory minimums. They may achieve real injustice in certain cases.”

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