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Mandatory minimums may face tough year in the courts with various challenges

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TORONTO - The coming year could bring some clarity to the murky legal waters of the federal Conservatives' law-and-order agenda, particularly mandatory minimum sentences, even as new complications are added to the mix.

One of the government's omnibus crime bills churned through the courts in 2012, with several planks falling victim to declarations of unconstitutionality. Meanwhile, a new slew of provisions entered the fray in the form of a second omnibus bill.

Major players in the legal community are predicting 2013 will bring even more questions about the constitutional validity of the two bills, both heavy on mandatory minimum penalties and tougher rules for violent offenders.

But at least some of the questions already raised will be answered by Ontario's highest court early next year as it is set to convene a special five-judge panel for February to rule on mandatory minimum sentences for gun crimes.

Several different judges in Ontario this year had to consider the constitutionality of those firearm laws. Their differing decisions left a fragmented landscape. Hearing six of those cases at the same time gives the Court of Appeal for Ontario the opportunity to deliver a uniform ruling.

The mandatory minimums were upheld in most of the cases the panel will hear. The case in which the law was struck down is that of Leroy Smickle — a man who very well demonstrates the problems with the legislation, said his lawyer.

The "very foolish" Smickle was alone in his boxers in his cousin's apartment posing with a loaded handgun while taking pictures of himself to post on his Facebook page, the judge found.

Unbeknownst to him, members of the Toronto police Emergency Task Force were amassing outside to execute a search warrant in relation to Smickle's cousin, who they believed had illegal firearms. Smickle was caught red handed.

Ontario Superior Court Judge Anne Molloy convicted Smickle of possessing a loaded illegal gun, but found that sending the first-time offender to prison for three years was cruel and unusual punishment. She struck down the mandatory minimum, declaring it unconstitutional.

The government is appealing, and at the special hearing in February both federal and provincial Crowns are set to make arguments.

The Department of Justice said no one was available for an interview, and sent a statement touting its tough-on-crime agenda.

But critics of mandatory minimum sentences say they don't actually help reduce crime and do more harm than good.

"In terms of reducing crime they're usually thought of as having a possible general deterrent effect," said Anthony Doob, a criminology professor at the University of Toronto.

"There's been so much research on this that I don't think that's really a question anymore. Anybody who looks seriously at the effect of mandatory minimums...would know that they're not going to reduce crime in that way."

Having mandatory minimum sentences means more people will end up in prison, and putting a first-time offender through the paces of prison culture can leave them at the end of their sentence more likely to re-offend, Doob suggested.

"So what you may be doing in these circumstances... is in the long term an increase in crime," he said.

Mandatory minimums are nothing new — both Liberal and Conservative governments have enacted them. Commissions looking at the issue going back several decades have called for mandatory minimums to be abolished.

Court decisions striking them down aren't new either. One of the biggest cases was from 1987, when the Supreme Court of Canada struck down a seven-year minimum sentence for importing a narcotic.

But this year saw a torrent of new legal challenges as the provisions from the 2008 legislation finally made their way through the backlog of the courts.

And those court delays will only get worse with the flood of new mandatory minimums, suggested Rick Woodburn, the president of the Canadian Association of Crown Counsel.

He wouldn't comment on the validity of the legislation, but said "a bill like this increases the workload."

Crowns typically offer plea bargains with conditional sentences to less serious offenders, but with more lenient sentences for certain crimes gone, guilty pleas — which save court time and resources — are drying up, Woodburn said.

"We're seeing that the delays are starting to get longer and longer in a very short period of time. There's no coincidence that delays across the country can be directly linked to the omnibus bill."

Another frequent criticism is that mandatory minimums strip discretion from judges, who know all the facts of a case and are the best equipped to determine an appropriate sentence. It's a blunt instrument to deal with a complex problem, said Smickle's lawyer, Dirk Derstine.

"Our judges know perfectly well that possession of firearms is a very, very serious thing," he said. "Really, what this indicates is a lack of trust in the judiciary."

Derstine also represents Hussein Nur in another case that will go before the Appeal Court panel in February. In that case, which came a few months before the Smickle decision was issued, the trial judge found merit to the constitutional challenge, but dismissed it.

Superior Court Judge Michael Code found that there were many circumstances in which a three-year sentence could end up being cruel and unusual, such as in the case of John Snobelen, a former Ontario cabinet minister who never got around to registering a gun in Canada after buying it among the contents of a ranch in the U.S. His wife told police about its existence during marital difficulties.

But the judge said the Crown, as it did in the Snobelen case, can decide to proceed to a summary conviction, which is treated less seriously and with less jail time than indictable offences. Snobelen was granted an absolute discharge.

That option in the firearms offence saves the law from being declared unconstitutional, Code said. But, he warned, "one unwise Crown election" may invalidate the whole sentencing scheme.

Nur also argued that the difference in penalties for summary conviction and indictment is arbitrary and Code agreed.

The government raised the mandatory minimum sentence for possession of a loaded prohibited firearm from one year to three years as part of the 2008 omnibus bill. But it didn't change the sentencing options for the same charge under a summary conviction.

The maximum sentence on a summary conviction for the crime remained one year. That has left a two-year gap that "makes no rational sense," Code said. It appears as though it happened by mere oversight, not by some advertent decision, he said.

He found that Nur's charter challenge of arbitrariness had merit, saying the gap "emasculates" the sentencing provisions and "will inevitably lead to unfit sentences" for less serious firearm cases. But Code found that he had to dismiss the challenge on a technicality.

In Quebec, the provincial bar association launched a legal challenge last month seeking to strike down sections of the 2012 omnibus bill involving mandatory minimums. The bar association said mandatory minimums don't protect the public and represent an unconstitutional interference from one branch of government, the legislature, in the business of another, the judiciary.

There will be more challenges to the new sentencing laws in the new year, professors, lawyers and other legal experts predict. University of Ottawa professor Carissima Mathen suggested that minimum sentences for some drug laws that came into effect this year are vulnerable.

Some experts say the new provisions mean that someone growing six marijuana plants in their own home could be sentenced to six months, but a person growing the same amount in a rental unit could get nine months.

Enacting mandatory minimums is an easy way to appear tough on crime, critics say.

"The reality is, if you don't care about sentencing policy but want to show some activity...you can pick a random offence and give it a mandatory minimum," Doob said.

Francoise Boivin, the NDP justice critic in Ottawa, said many problems will arise from the fact that the raft of new sentencing laws were enacted as part of omnibus bills.

"This is a huge, huge overhaul of the whole system to really implement your ideology on the issue," she said. "It's scary to know that you've changed so many laws — and not simple laws. Each one would have deserved a long and hard look. You're talking about child pornography in one minute and then you're talking about terrorism the second half of the meeting. It's completely nuts."

Many of the constitutional challenges, including the one being heard en masse in Ontario in February, are expected to eventually be heard by the Supreme Court of Canada.

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