Tuesday, February 14, 2012

Justice Molloy Refuses Mandatory Minimums

In a case that's getting a lot of media coverage nationwide, Justice Molloy ignored a mandatory minimum sentence for a gun possession offence.  Okay, it isn't correct to say that she ignored it.  She addressed it head on, and determined that the correct decision was to disregard it.

I haven't been able to review the decision itself, but from the news coverage I'm inferring that the offence was against s.95 of the Criminal Code, which prohibits possessing a loaded prohibited firearm, or a prohibited firearm with ammunition readily accessible, unless the person has a licence/authorization to possess the firearm and holds the firearm's registration certificate.

This is a "Crown election" offence.  That means that the Crown can choose to proceed by way of summary conviction proceedings, with is an expedited process with no jury right, and for this particular offence would mean a maximum sentence of 1 year in prison.  Alternatively, the Crown can choose to proceed by indictment, in which case this particular offence carries a maximum sentence of 10 years in prison, and a minimum penalty of 3 years in prison.

The defendant in this case was Leroy Smickle, who apparently was holding the weapon to strike a "cool" pose when the police burst into the apartment in search of another person.  Smickle, age 30, had no prior criminal record.

Deciding that a sentence of 3 years in prison for an individual under such circumstances would be so disproportionate as to shock the community, Justice Molloy decided to impose a sentence of one year house arrest.  Appeals are nigh-inevitable.  But Justice Molloy is a well-respected judge, and much of the judiciary will share her view about the inappropriateness of mandatory minimums.

What do you think?  Is 3 years in jail for Mr. Smickle too harsh?

The controversy about mandatory minimums is two-sided.  Its proponents - including the current conservative government - argue essentially that judges impose too lenient of sentences for serious offences, and therefore their discretion needs to be limited.

Opponents of mandatory minimums, on the other hand, argue that every case is unique on its facts, and that tying the judge`s hands will necessarily create injustice in some cases.

One relatively straightforward example of a mandatory minimum sentence is the sentence for murder.  For second degree murder, the minimum sentence is life, with no chance of parole for upwards of 10 years.  For first degree murder, the minimum sentence is life, with no chance of parole for 25 years (subject to the 'faint hope' clause).  Relatively uncontroversial, yet even that has its detractors:  Consider, for example, euthanasia.  Should it be legal under certain circumstances?  That's a controversial enough point.  But with it being illegal, with euthanasia falling into the same framework as murder, does it seem right that a person who administers a fatal drug to a person already dying of ALS (and agonizingly so) should be treated exactly the same as the person who shoots and kills a police officer in the commission of a robbery?  Likewise, think of Robert Latimer, who was convicted of second-degree murder after killing his daughter who suffered from cerebral palsy, to end her suffering.  Should it have been criminal?  I think so, yes.  But the intent and the act seem somehow less blameworthy than a 'normal' murder, and it does seem inappropriate to treat him the same as any other murderer.

In Latimer's case, the trial judge came to similar conclusions to Justice Molloy, finding that the mandatory minimum was too harsh, instead sentencing him to 2 years less a day.  However, the Supreme Court of Canada rejected that finding in 2001, concluding that the lengthy sentence would not be "cruel and unusual" and that the judge was wrong not to impose the mandatory minimum.

Mandatory minimums are a particularly touchy topic right now, with Bill C-10 before the Senate, which imposes a much broader range of mandatory minimums.  If Justice Molloy is right, then the Charter will likely play a much larger role than in the past in informing sentencing principles, and Parliament will be unable to legislate around principles such as 'proportionality'.

My Thoughts

I consider myself to be in the camp of opposing mandatory minimums.  There is a certain persuasiveness to the notion that some people get off too lightly, but this can be dealt with through sentencing reform less invasive and sweeping than mandatory minimums.  The existing sentencing provisions in the Criminal Code put a strong emphasis on restraint, on not imposing custodial sentences unless they're necessary under the circumstances.  That principle could be modified in such a way as to dial up the sentences for serious offences.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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