Her Majesty the Queen v. Smickle
[Indexed as: R. v. Smickle]
2012 ONSC 602
Superior Court of Justice, Molloy J. February 13, 2012
Charter of Rights and Freedoms — Cruel and unusual treatment or
punishment — Mandatory minimum sentence — Accused convicted of
possession of loaded firearm after posing briefly with loaded handgun
— Firearm not belonging to accused — Relatively youthful accused having no criminal record — Appropriate sentence in absence of mandatory
minimum three-year sentence in s. 95( 2) of Criminal Code being one
year — Three-year sentence grossly disproportionate to what accused
deserved for single act of bad judgment — Mandatory minimum sentence violating s. 12 of Charter — Violation not justified under s. 1 of
Charter — Impugned provision not minimally impairing and failing to
meet proportionality criterion — Appropriate remedy declaration of
invalidity — Canadian Charter of Rights and Freedoms, ss. 1, 12 —
Criminal Code, R.S.C. 1985, c. C- 46, s. 98.
Charter of Rights and Freedoms — Fundamental justice — Mandatory
minimum sentence — Two-year gap existing between maximum sentence of one year for possession of loaded firearm under s. 95 of Code
where Crown proceeds summarily and mandatory minimum sentence of
three years where Crown proceeds by indictment — Hybrid scheme in
s. 95 arbitrary and violating s. 7 of Charter — Violation not justified
under s. 1 of Charter — Impugned provision not minimally impairing
and failing to meet proportionality criterion — Appropriate remedy
declaration of invalidity — Canadian Charter of Rights and Freedoms,
ss. 1, 7 — Criminal Code, R.S.C. 1985, c. C- 46, s. 95.
The accused, a relatively youthful first offender, was convicted of possession of
a loaded firearm contrary to s. 95 of the Criminal Code. He was posing in his
cousin’s apartment with a loaded handgun, taking his picture for his Facebook
page, when the police broke in to execute a search warrant in relation to his
cousin. The evidence did not establish that the firearm belonged to the accused or
that he intended to use it as a weapon against the police. As the Crown had proceeded by indictment, the offence attracted a mandatory minimum sentence of
three years’ imprisonment under s. 95( 2) of the Code. The accused brought
an application challenging the constitutionality of the mandatory minimum
Held, the application should be allowed.
In the absence of the mandatory minimum penalty, the appropriate sentence in
the circumstances would be one year. A three-year sentence was not necessary to
rehabilitate the accused, nor did it comply with recognized sentencing principles.
On the contrary, it was inconsistent with many of the purposes and principles of
sentencing, notably the goal of rehabilitation and the requirement that an individual not be deprived of his liberty if other sanctions are available which satisfy
the other goals of sentencing. A three-year sentence would be grossly disproportionate to what the accused deserved for a single act of bad judgment and foolishness. The mandatory minimum sentence violates s. 12 of the Canadian
Charter of Rights and Freedoms.