Another judge balks at mandatory minimum sentences for gun crimes

Expect more to come

Cruel and unusual minimums

Alex Consiglio/Toronto Sun

The judicial revolt is spreading. On July 6, Ontario Court Justice Paul Bellefontaine became the province’s second judge this year to balk at the Conservative government’s mandatory-minimum sentences for gun crime, introduced in 2008. Jeffrey Mazin, the lawyer defending the accused, had a tough job. Over four occasions last year, his client, Christopher Lewis, sold a total of 53 g of crack cocaine to an undercover cop. Lewis, then 20 years old, was willing to own up to being a drug dealer. But the high-stakes gun charge thrown into the indictment, Mazin thought, was a little over the top.

It was a little over the top for a simple reason: there was no gun. Section 99 of the Criminal Code makes it an offence to transfer or to “offer to transfer” a firearm to another person unless one is an authorized gun vendor. Lewis admitted that he had been talking tough and had offered to sell the policeman a “four-fifths”—a .45-calibre handgun. But he never actually had access to a gun, and the detective’s testimony confirmed that whenever the date of the proposed sale came up, Lewis made some excuse for not producing the goods. This happened over and over. The accused simply wanted to prolong his lucrative commercial relationship with an increasingly formidable crack buyer.

The minimum sentence for a Section 99 offence under the 2008 Criminal Code amendments is three years—no exceptions. But despite Lewis’s admitted drug offences, Mazin was able to convince Justice Bellefontaine that it was ridiculous to give a man three years in jail for the admittedly illegal non-sale of a non-gun. The argument was relatively easy to make, thanks to February’s ruling by Ontario Superior Court Justice Anne Molloy in the unforgettable case of Leroy Smickle.

Smickle, then 27, was staying overnight at a cousin’s Toronto apartment in the wee hours of March 9, 2009, when he ran into one of the wackiest strokes of bad luck on record. Toronto police had just been tipped to the presence of illegal firearms in the flat, and they broke down the door at the exact moment Smickle was posing for a Facebook photo with a laptop in one hand, a loaded handgun in the other, and sunglasses on his face. The cops threw a stun grenade and ordered Smickle to hit the floor. Smickle complied immediately, never pointing the gun at the police.

The Crown tried to argue that the gun probably belonged to Smickle, and that he most likely brought it to his cousin’s apartment himself—which, in turn, implied that he had been walking the streets of Toronto with a loaded firearm. But while the law had Smickle stone cold on a Section 95(1) illegal-possession charge, the second they burst in on him, there was no actual evidence that he was the gun’s owner. Justice Molloy pointed out with Wapner-esque asperity that Smickle had no criminal record of any kind, that the police were there to serve a warrant on the cousin, and that they in fact found many illegal weapons on the premises. Smickle, in short, was probably just farting around on Facebook with his cousin’s property.

Unfortunately, under 2008 amendments to the Criminal Code, the minimum sentence for physical possession of a prohibited firearm—if the Crown proceeds by indictment—is also three years in prison. Molloy found that to imprison an otherwise law-abiding citizen for such an incident would be cruel, arbitrary and disproportionate—a multiple attack on the Charter. She was, in her view, left with no choice but to strike down the mandatory-minimum provision on Charter grounds.

Justice Bellefontaine didn’t go quite as far: he simply refused to apply the minimum in Lewis’s case rather than striking it from the code, sentencing Lewis to one year for “offering to transfer” a non-existent gun. (The total sentence for guns plus drugs was two years less a day.) But Bellefontaine relied heavily on Molloy’s reasoning, and Mazin admits it was a stroke of luck to have a poster boy for the comic absurdity of mandatory minimums precede his own more compromised client.

“I actually recall sitting in a lawyers’ lounge in Scarborough in February and overhearing a couple of lawyers talking about R. v. Smickle,” says Mazin. “When I heard that, I knew immediately the legal argument against my client’s different mandatory minimum might not have been overwhelmingly strong before, but now—if you’ll pardon the expression—I had some additional ammunition.”

The Ontario government has announced an appeal of the Smickle ruling (with no word on Lewis yet), but Molloy found so many weak points in the law that it is somewhat difficult to imagine an appellate judge disagreeing with her on all of them. And, for better or worse, criminal justice is in the hands of judges. When mandatory minimums for overboard offences collide with unusual circumstances like Smickle’s or Lewis’s, judges will inevitably follow their consciences.


Another judge balks at mandatory minimum sentences for gun crimes

  1. By its very nature, MMS was bound to run up against the Charter. If the CPC had actually cared about this, they’d have Invoked the Notwithstanding Clause. But not, so not, and all to the better.

  2. Nobody complained when mandatory minimums were introduced for pedos. The hubub over mandatory minimums is too narrow and too new to be convincing. Let’s not forget that the whole point of the Charter is to be anti-democratic, to thwart democracy, to put rights out of the reach of the grubby paws of the proles.

    If the peoples’ elected reps deem a crime worthy of a 3 year sentence then it is unambiguously undemocratic for an unelected judge to cite a piece of paper that was not ratified by the people in a referendum and effectively make his own laws. Who runs this country? Are we a lexocracy or a democracy?

    Besides, the SCOC is a joke, I have concluded, after reading the flopsweat-soaked Rafe Mair libel judgment.

    Separately: a Vancouver gang member with priors recently received a 5 year sentence for possessing a handgun illegally. They don’t give killers 5 year sentences (manslaughter, often pled down from murder in Canada, frequently gets you 2 years). A year sentence would seem apropos, but it’s not for an unelected judge to make that call. The Criminal Code is a relic of the 19th and 20th centuries and needs a total rewrite – John Turner argued as much back in 1972 when he was Justice Minister. That’s a job for the people and their elected reps, not unelected judges.

    In any case, judges are too arbitrary when deciding what is cruelunusual: the City of Ottawa just passed a whack of new anti-smoking regs, no smoking in parks/beaches etc. on pain of a $305 fine. Is this not cruel and unusual punishment? You can bet the SCOC wouldn’t agree.

    • You should learn the difference between what is truly arbitrary and what is discretionary, proportionate, and relative. Judges are not robots, nor would we want them to be.

      • The vast majority of sentences being meted out by judges at all levels of the judicial system is a patent joke. If Justice Bellafontaine was being truly discretionary, proportionate, and relative, in the case of Christopher Lewis, this repeat offender, would have received a minimum six years in a federal penal institution. As it is he’ll be eligible for release, being given credit for time already served, just as soon as the paperwork for the court records has been entered into the courts database. He’ll be out, and will go right back to selling crack, after sticking Canadian taxpayers with the tab for it all. Now, although that’s a huge miscarraige of justice, it’s one that constantly gets repeated by judges unwilling to apply the full extent of the law.

        • Criminals never want to go to jail. If you don’t believe me as them. There job is out here close to their victims. You wouldn’t want to interfere with their trade would ya? Is there an old criminals pen for them to retire to? What are the retirement benefits like? How much do they pay into CPP. Hahahahaha.
          Live fast and die young, there are no retirement cheques.

      • Robots can’t be bribed or bought. They don’t worry about retirement or pension. Glib words don’t mean as much to them. No robot cares to hear the story of your life. They want guilty or not and move on that. Robots have no sense of time wasted. You can’t bore them into submission. They don’t cry as it promotes rust. You can’t kill a robot so fear is out. They are on or off and very patient.
        Lets build robot judges. They are incorruptible.

        • Who gets to design the robots?

    • What’s undemocratic is that we have a government that enjoys only 39% of the popular vote and deems this to be a “clear mandate” to put the country on its head. Thank God we have bright judges as a safety valve in our “democracy”. Also, the Charter was enacted by THE PEOPLE through their representatives in the House of Commons. The Charter actually REQUIRES judges to put aside unconstitutional laws. But my guess is you will conveniently overlook all of this and indulge in your sense of ideological superiority based on ignorance. What can one do…

      • Back to your cell creep. Your friends miss you.

  3. The truth is that companies like GEO and Bird Construction are REALLY behind the mandatory minimums not any concern for victims or justice. Judges will make the call, not politicians that have no sense of what justice is at all. Justice is not revenge. Justice is not about making money for your buddies (Bird got a mega prison project from his pal Harper) Justice is about making sure that society remains safe and stable.

    • I think you think too much. That or too much TV.

      • I think that your ignorance is dangerous. Exactly the same scenario I speak of happened in the US decades ago and continues to this day. Harper is following the path they took. If you think it is somehow “out there” to see the connections and put two and two together you must not follow politics very closely at all. GEO HAS been lobbying for private prisons and has had meetings with Harper personally. Bird DID get the juicy no bid contract for a mega prison in NS. Bird IS very friendly with Harper. These are facts. The rest is common sense.

  4. As much as I hate pedofiles, there is no justice in “mandatory sentencing” that undermines the whole idea of balance. And that’s what justice is. Balance. You’d think with everyone freaking out about all the debt and economy and what not we would want to find a way to make money not spend it. Private companies make profit. PROFIT off of crime. And mandatory sentencing is just a guarenteed paycheck. Look through the vail people. It’s not about justice it’s about money. And we write the checks. We have started down a long journey on a short road. Judges are trying to protect and insulate us from this and they are our last hope, because anyone with any reason or ambition would know how much money you could make if you owned a jail. However most people are too morally responsible to drain the society that surrounds them for their own personal gain. It would be hard to turn down a ferrari and speedboat though, and that’s why we need to be vigilant about the govenrments relationships with private enterprise and public wealth.

  5. veil… lol