Sentencing idiots

There are days when I really regret going into a career that requires so much research. On the other hand, it’s because of my research duties that I’m aware of cases like R. v. Smickle  – kudos to Molloy J. for knowing how to write a lede:

At just before 2:00 am on March 9, 2009, Leroy Smickle was engaged in a very foolish act. He was alone in the apartment of his cousin, Rojohn Brown, having elected (because he had to be at work in the morning) to stay in while his cousin went out to a club. Mr. Smickle was reclining on the sofa, wearing boxer shorts, a white tank top, and sunglasses. Thus clad, he was in the process of taking his picture for his Facebook page, using the webcam on his laptop computer. For reasons known only to Mr. Smickle, and which arguably go beyond mere foolishness, he was posing in this manner with a loaded handgun in one hand. Unfortunately for Mr. Smickle, at this exact moment, members of the Toronto Police Emergency Task Force and the Guns and Gangs Squad were gathered outside the apartment preparing to execute a search warrant in relation to Mr. Brown, who was believed to be in possession of illegal firearms. They smashed in the door of the apartment with a battering ram, and Mr. Smickle was literally caught red-handed, with a loaded illegal firearm in his hand. He immediately dropped the gun and the computer, as ordered to by the police, and was thereupon arrested…..

Not surprisingly, Leroy Smickle was convicted. The next step was the sentencing hearing, from where this excerpt originates. The interesting part of this decision, and the reason it should be read (apart from literary flair), is because of Molloy J.’s refusal to impose the mandatory minimum sentence. Molloy J., knowing she must impose a fit sentence, finds that a three year mandatory penitentiary term  is cruel and unusual punishment, finds the legislation unconstitutional and and strikes it down. This will not sit well with a federal Conservative government heavily invested in a tough-on-crime, law-and-order agenda.

Molloy J. does not condone gun-related activity. Just the opposite. However, she is clearly dealing with a known quantity in Leroy Smickle:

It took three smashes from the battering ram to break down the apartment door.  Mr. Smickle testified that when he heard the first bang, he thought it was thunder.  Upon hearing the second blow, he wondered if it might be the police.  Then, with the third blow, the police entered, ending all speculation….

[…]

….Mr. Smickle is guilty of colossally bad judgment. I might also question his sense of values if he believed posing with a gun would enhance the image he wished to project to his friends on Facebook. However, apart from this one lapse in judgment, he is not a criminal.”

Having regard to the lethality of his particular brand of poor judgment, she also notes that his possession of the gun was brief, there was no indication he actually owned it, he lacked any criminal intent, there was nobody else present, and no drugs were involved.

In short, Leroy Smickle wasn’t being a criminal; he was being an idiot.

As is usual, she canvasses the case law to determine what range of sentence is typically handed out in these circumstances. Interestingly, she cites the case of R. v. Snobelen, a businessman and former Conservative cabinet minister in the Provincial Legislature, who was charged with possession of a Colt 22 semi-automatic, together with accessible ammunition. Mr. Snobelen, having been charged in 2007, had the benefit of escaping a mandatory minimum or he, too, would have been facing a three-year penitentiary term. Noting that Mr. Snobelen actually owned the gun, and he was in possession of it far longer than Mr. Smickle, Molloy J. finds that “if it was appropriate for Mr. Snobelen to come through the process with no criminal record at all…, then principles of parity cannot support a three year penitentiary term for Mr. Smickle.” (R. v. Snobelen (25 April 2008), unreported, S.D. Brown J. (Ont. C.J.).

If this decision wasn’t political enough, this is sure to attract some attention. Particularly since the Conservative’s omnibus Bill C-10 — currently facing scrutiny in the Senate — combines nine different pieces of legislation, covering everything from drug and sex crimes to young offenders, criminal pardons and the issue of Canadians jailed abroad. It also creates new mandatory minimum sentences for drug crimes and child sex crimes, sharply reduces the use of house arrest, toughens the treatment of young offenders and those seeking criminal pardons.

What about Leroy Smickle? Having struck down the offending mandatory minimum, Molloy J. sentenced him to a term of five months (after credit of seven months for time served and time spent on bail), to be served conditionally in the community.

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About InfoLawyer

I'm an cybersecurity, data protection and privacy lawyer lawyer at the Toronto law firm of McCarthy Tetrault. When not writing here, I am writing restaurant reviews for Precedent legal magazine or using the backs of restaurant napkins to work out the odds of whether I can be replaced by an artificially intelligent machine (this week's odds are 70:30).
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