Mandatory Minimum 3 Year Sentence For Loaded Firearm Ruled Unconstitutional

On February 13, 2012 in the case of the Queen versus Leroy Smickle, (2012 ON SC 602) Superior Court Justice Molloy struck down section 95(2)(a)(i) of the Criminal Code as contrary to sections 7 and 12 of the Canadian Charter of Rights and Freedoms. The ruling recognizes that the mandatory 3 year jail sentence for possession of a loaded firearm for a small class of offenders will amount to cruel and unusual punishment.

Also, the ruling confirmed that the legislative disparity between a 1 year maximum jail sentence upon conviction should the Crown proceed summarily compared to a mandatory minimum 3 year jail upon conviction should the Crown proceed by indictment will in some cases arbitrarily limit Canadians rights to life, liberty and security of the person.

The net effect of the ruling is that individual offenders that are not otherwise viewed as gun toting criminals that were in temporary possession of a loaded firearm due to momentary poor judgment should not receive 3 years of jail in the federal penitentiary. Instead, judges apprised of all the facts should be able to craft a meaningful sentence that reflects the circumstances of the offence while accounting for the offenders background.

By way of update, our office will be involved as an Intervener at the Ontario Court of Appeal in the  Smickle case and the related case of the Queen versus Nur (2011 ONSC 4874) which will be argued the week of February 19 to 22, 2013.

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