The case has raises some interesting questions for Canadian criminal law, but we offer it to you for its entertaining facts and the lively writing of the opinion:
R. v. Smickle, 2012 ONSC 602 (CanLII)
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.
Mr. Smickle was charged with various offences in relation to the possession of the gun. The Crown proceeded by indictment and, after the preliminary inquiry, Mr. Smickle was committed for trial. He pleaded not guilty and elected to be tried by a judge sitting alone without a jury. At the trial before me, Mr. Smickle testified on his own behalf. His evidence was essentially the same as that of the police officers, except that he denied the presence of any gun. I did not believe his testimony on that point and was satisfied beyond a reasonable doubt that he did have the gun in his hand when the police entered the apartment, just as described by the officers who testified.
Having convicted Leroy Smickle of possession of a loaded firearm contrary to s. 95(1) of the Criminal Code, I must now impose a fit sentence for this offender and this crime. Mr. Smickle has no criminal record. Pursuant to s. 95(2) of the Code, the mandatory minimum sentence for a first offence under this provision, if prosecuted by indictment, is imprisonment for three years. Mr. Smickle challenges the constitutional validity of the minimum mandatory sentence I would be compelled to impose under s. 95(2). If the legislation is valid, I have no discretion; he must be sentenced to three years in a federal penitentiary.
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I. CONCLUSION
[162] A declaration shall issue that the reference to a minimum punishment of imprisonment for a term of, “in the case of a first offence, three years” as set out in s. 95(2)(a)(i) of the Criminal Code is inconsistent with the Charter of Rights and Freedoms and of no force or effect.
[163] On Count 1, Leroy Smickle is sentenced 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, subject to the statutory conditions and any further conditions I may impose after hearing further submissions on February 13, 2012.
[164] All other counts are duplicative and are stayed pursuant to the principles in R. v. Kienapple.
HT: Slaw
