Editorials

Winnipeg Free Press - PRINT EDITION

Minimum sentences need a safety valve

By: Editorial

Posted: 02/16/2012 1:00 AM | Comments: 0 (including replies)

(DALE CUMMINGS / WINNIPEG FREE PRESS)

The Harper government was forewarned its move into mandatory minimum sentences would unfairly penalize some criminals. And so it has happened. A 30-year-old Toronto man who was found guilty while foolishly playing with an illegal, loaded handgun was automatically to be imprisoned for a minimum of three years. But the judge ruled he did not deserve the penalty and struck down the Criminal Code provision as unconstitutional.

Madam Justice Anne Molloy stressed in her ruling she knew, as a Toronto Superior Court judge, the toll illegal guns take on society. But putting Leroy Smickle in jail would not serve the purpose of the law -- to punish and deter those who pose a danger to society -- and amounted to cruel and unusual punishment, which the Canadian Charter of Rights and Freedoms protects against. She struck down Sec. 95(2), which carries a mandatory minimum sentence of three years for possessing a loaded prohibited firearm.

Mr. Smickle may be guilty of a lot of things, primarily stupidity, but a danger to society he is not. A father with a full-time job, he was sleeping at his cousin's apartment and turned down an invitation to go clubbing because he had to get up for work the next day.

Lounging in his boxers on the sofa at 2 a.m., he was posing with the gun and taking pictures with his computer to upload some "cool" shots on Facebook. Just then, police broke down the door to arrest his cousin, whom they believed to possess illegal firearms and shocked Mr. Smickle. He has no previous criminal record.

By any reasonable interpretation of criminality, this man is not someone who would deserve to sit three years in jail. But the law, in line with increasingly harsh penalties the Harper government is passing, removed all discretion from judges. Other jurisdictions that have passed similar mandatory sentences have written into law the power of judges to make exceptions on extraordinary circumstances -- in other words, were given safety valves that recognize a law with no exceptions is one that may prove unjust, in specific cases.

The charter protection against cruel and unusual punishment preserves the jurisprudence supporting the principle punishment must fit the crime.

Judge Malloy's ruling sits as precedent for other judges to consider and may make its way to the Supreme Court of Canada, where a ruling will have national effect. The Harper government should not try to defend the indefensible. It should amend this law to provide for discretion under extraordinary circumstances.

Republished from the Winnipeg Free Press print edition February 16, 2012 A10

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