Does this deserve three years in prison?

by Aaron Wherry
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An Ontario judge rejects a three-year mandatory minimum for a first-time offender as unconstitutional.

Smickle was alone in his cousin’s apartment at 2 a.m. on March 9, 2009, taking pictures of himself to post on his Facebook page. He was wearing boxer shorts, a white tank top and sunglasses and posing with a loaded handgun to look “cool,” Molloy found.

Unbeknownst to him, members of the Toronto police Emergency Task Force were amassing outside to execute a search warrant in relation to Smickle’s cousin, who they believed had illegal firearms.

The minimum in question was introduced by the Harper government in 2008. The McGuinty government stands by its support for mandatory minimums. Roy McMurtry, Edward Greenspan and Anthony Doob lament the incoherence of Conservative crime policy.

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Posted on:
Tuesday, February 14, 2012




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Aaron Wherry
Macleans.ca administrator
Aaron Wherry covers the House of Commons and its 308 residents for Maclean’s.

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Does this deserve three years in prison?

  1. Good for the judge!  Stupid Harperules.

  2. I don’t mind mandatory minimum sentences, but this particular one seems egregious.

    Mandatory minimums should be limited to crimes with an actual victim.  I’m not fond of laws that criminalize behaviours which have not actually caused any harm whatsoever to any individual.

    • Most of the minimums imposed by the CPC are for victimless crimes, actually.

      There’s a couple that aren’t, such as the child molestation ones, but most of them revolve around drugs and weapon possession.

      • What I’d like to see is minimums specifically for repeat offenders of crimes with victims, or for serious crimes like child molestation. But repeated offenders for sure, for even non-serious crimes like theft. Thieves get the revolving door treatment these days.

        And no minimums for drugs or weapons possession.

        • Personally, I’d like to see more efforts put into rehabilitation — especially for non-violent offenders — but yes, minimums for repeat offenses makes more sense.

          However, once again this is pandering to the notion that judges typically award sentences that are less than the minimums already, when the truth is that they don’t — not when the crimes deserve it.

          The problem with mandatory minimums is that they have a 100% error rate when it comes to crimes that don’t deserve the minimum — such as this one, IMO, — and the higher the minimums are set, the more of these types of errors we’ll see. At the same time, when the minimums are set low in an effort to avoid these errors, they do absolutely nothing for the system when we get someone serious in.

          Leave it to the judges. Being human, they will make occasional errors on both sides of sentencing. But occasional on both sides is less than 100% on one side and occasional on the other which is where minimums place us.

  3. 3 years is too much when manslaughter only gets you a year or two.  Nevertheless, you cannot call yourself a supporter of democracy if you support unelected lower level court judges vetoing legislation passed by the peoples’ elected representatives.  The people, via their elected representatives in parliament, should be supreme, not pieces of paper that weren’t ratified by referendum or unelected activist judges.

    Human rights don’t come from God, or unelected judges, or 11 first ministers.  They come from people.  The people must be supreme, and, to quote Pierre Trudeau, if this is not a democracy then let the revolution begin.

    • I haven’t read the case but if I understand correctly the minimum sentence law conflicted with the Charter of Rights and Freedoms.  Both are pieces of written legislation.  since the constitution over-rides regular statutes, the Charter prevailed.  Moreover, if elected parliamentarians are aghast at the result they have two options – they can alter the constitution itself, or use s. 33 to shield the law having to be accountable to the right to personal freedom. 

      This isn’t a subversion of the law, but its exercise.

      • The Charter is not simply written legislation per se, if it were, it would be amendable by federal legislation alone and that’s not the case.  The Charter is undemocratic *by design* and is meant to keep fundamental rights and freedoms out of the reach of the grubby paws of the masses; I have a problem with this, less democratic folks such as yourself apparently do not. 

        Section 33 would work in this case but does not cover sections 3 through 6 of the Charter and is therefore only a partial remedy.  Amending the constitution would require not only 13 legislatures finding some consensus but aboriginal groups and every other special interest group would have an effective veto.  

        • Constitutional documents are still legislation.  Your understanding of its relation to democracy itself is seriously flawed.
           

          • The constitution is in fact the basic law of the land….all other laws must conform to it, or they are void.

          • Oh I assure you GMFD I know the Charter very, very well, as my comment above should make clear.  Our difference is merely one of an appreciation of democracy and an abhorrence of unelected activist judges “reaching” and abusing the Charter.  

            Had the penalty in question been flogging, or being forced to listen to Irene Mathyssen for an hour, then the Charter would have been invoked correctly.  The three year sentence is too long in my estimation, but neither cruel nor unusual punishment.

          • Please show appropriate cites supporting your theory that sentences which are too long cannot violate the Charter.

          • Actually, that’s rather for the courts to say, and when it comes to matters of law, I’d rather take the opinion of a judge than some random internet poster.

          • ”
            Please show appropriate cites supporting your theory that sentences which are too long cannot violate the Charter.”

            Gladly, pretending for a moment that your question is a fair representation of what I actually said, which it is not.  How much cash you got?  I don’t educate the ignorant for free.

          • Yup. That’s what I figured.

        • The term “democracy” doesn’t really have a meaning anymore. Like “respect” before it, and “sustainability” is heading to, it just takes on whatever meaning that you want it to.

          For you, “democracy” seems to mean something closer to libertarianism and for much of the the university crowd, it tend to imply a significant welfare state and legal apparatus designed to enforce strict equality. Still for others, it tends to mean absolute mob rule. 

    • What do you mean by “you cannot call yourself a supporter of democracy if you support unelected lower level court judges vetoing legislation passed by the peoples’ elected representatives.”???

      If the peoples’ elected representatives were to pass the Nuremberg laws I would still find those undemocratic!

      • We already have Nuremberg law-style legislation in the form of “employment equity” and section 15(2) of the Charter actually makes it legal to restrict certain races and genders from the workplace and public life.  Still find those undemocratic?  Or as a women and a linguistic minority are you finding that it works for you just ticketyboo?  Seems like you’re OK with Nuremberg laws just as long as they don’t affect you personally.

        • What gender or race is banned form the workplace and public life?

          Or are you referring to the banning of racial bias in hiring practices?

          • I used the word restricted, not banned, and the Constitution explicitly *permits* racial bias in hiring practices in s. 15(2).

          • Only when when undertaken in the “amelioration of disadvantaged individuals or groups”. 

          • And yet an evidence based analysis of many of these so-called “disadvantaged ” groups concludes they are not in fact disadvantaged.  

            Women control 85% of household spending, there are more women in workforce, university, law school, and medical school than men, and they purchase more homes and new cars than men.  Taxation policy, the pension system, and the legal system all favour women over men.  Etcetera, etcetera.

            The Japanese are the second highest per capita earning ethnic group in Canada, their income is much higher than non-ethnic Canadians, and they benefit, wrongly, from EE.  Other ethnic groups are similarly “privileged”, if you will.

            In any case, the Nuremberg laws and the Law For The Restoration Of The Public Service (first law Hitler passed) had the same objective using the same reasoning – restrict Jews from employment and public life for the amelioration of  ”disadvantaged” Germans.  It didn’t fly then and it doesn’t fly today, but more to the point, Hitler’s laws didn’t discriminate against groups already disadvantaged, which is more than can be said for Canada’s similar regulations. 

          • It explicitly does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals.

        • I doubt that you could come up with any valid quantity of white males “excluded from the workplace and public life”. That’s what you’re referring to and it’s a lame argument. 

          It’s a shame that we white males can’t systematically prevent women and other uppity folk from getting jobs anymore. Had a good thing going there. All ruined by our antidemocratic communist Charter.

          Feel free to be more competitive in the job market. We can see here that you’re hiding your excellence. We deserve more sharp minds in public life.

          • ”
            I doubt that you could come up with any valid quantity of white males “excluded from the workplace and public life”"

            How much cash you got pal?  And since when have I *ever* made a factual error when commenting at Maclean’s?  

            Employment Equity – race and gender quotas, whether implicit or explicit  - have been a fact of life in public and private sector hiring for 20 years in Canada, and your spectacular and breathtaking ignorance isn’t my problem, it’s yours.

            Next you’ll be demanding evidence that the sun rises in the east.  Argumentation by deliberate obtuseness, we call it.

          • The reality in Canada in 2012 is that it is Muslims and Chinese and other groups from “low trust” societies which routinely discriminate in hiring and housing and other sectors, and the human rights agencies routinely let it slide.  You’re living in 1964 and don’t even know contemporary Canada.  

            Yes, I am in fact excellent, thank you, and you are mediocre and demonstrably pig-ignorant.

          • So nothing then. You’ve reached into your bag of evidence and given me nothing but throbbing forehead veins, intertextual spittle, and assertions that betray that, at best, you were not hired at a local Chinese restaurant.

            So, when can I have some evidence that white men are systematically discriminated against? I’ll wait for it, I don’t mind. You’ll have to do better than the Sun editorial that you sound like.

          • “If you are a Crown corporation or an employer in the federally regulated private sector, you have certain obligations and responsibilities under the Act. You must: 

            -conduct an employment systems review of your human resource policies and practices;
            -prepare, implement, monitor, review and revise an employment equity plan that includes short-term and long-term numerical goals to close gaps in representation”http://www.hrsdc.gc.ca/eng/labour/equality/employment_equity/private_crown/index.shtml

            A “numerical goal” is a quota.  Don’t ever question or backtalk me again, CR. 

          • That’s still not a number. That’s a government policy position. Again, give me numbers don’t give me conjecture, or policy goals. Give me evidence that while males are systematically discriminated against in a real way.

            Spittle won’t do it and neither will federal government employment equity goals. What I want is evidence of something real and more importantly, systematic.

          • Systemic.  In the Race Hustling vernacular it’s “systemic”, rook.  A numerical goal is the very definition a quota, wannabe pedant.  I can cite more examples, but 1 is sufficient.

  4. Mass murderers tend to take pictures of themselves with guns.  At least, we tend to see the pictures in the media after the fact, wondering why nothing was done.  And then they go on a witchhunt of farmers and hunters.

    They caught a legitimate gun criminal before he killed anybody, and with a mandatory minimum he won’t be able to kill anyone for three years.

    It may take a few years to get to the Supreme Court, and then Harper will have an ideal test case of a really narrow use of the notwithstanding clause to put the Liberals and NDP on the record of where they actually stand on actual gun crimes before the next election.

    If you behave stupidly with a gun, three years seems reasonable to me.  

    • What you seem to believe is that undue horesplay with a gun makes one a serial killer, a proposition which is insane. The important thing here is a firearms prohibition, not absurd amounts of jail time. 

    • So I presume you believe that everyone who refused to register their gun with the registry when it was introduced should be in jail?

      Or do you just support law enforcement when it is a law you support?

      • The Liberals didn’t have the guts to prosecute civil disobedience because they knew their law was a bad law, so they delayed and prevaricated, and delayed and prevaricated enforcement.

        Civil disobedience as a method of political protest means that one has to accept the risk of prosecution, but if the law is a bad law you will win in the end.

        The guy posing for Facebook pictures with a gun was not being civilly disobedient.  He was just being an irresponsible gun owner deserving of punishment.  This guy will not win in the end.  The Supreme Court will reign in the idiot judge, or Parliament will reign in the Supreme Court.

        I expect the Liberals and NDP will say one thing in public, but will be praying the Supreme Court makes this go away, by reversing the decision.

        • The Supreme Court will rein in Harper if this is found to be unconstitutional….and it’s likely to be.

        • For all that answered the question, why didn’t you just type random characters for six minutes and post that? 
           

    • Are you some kind of clairvoyant or just plain stupid?

      Do you have any indication that this person was about set off on a killing rampage?

      Do you believe in thought crimes now?

  5. Well come on! He should NOT have taken his pants off in his cousin’s apartment. My god people- HE WAS ASKING FOR TROUBLE! 

    And it FOUND HIM! Another pantless fool off the street. Me? I ONLY take my pants off on the privacy of my bedroom with the lights off, gun on the nightstand, curtains drawn, and house fully secured, and an open line to Chief Fantino so I may request permission to de-pant myself. 

    Hail Harper!

    • Okay, I was fine until that last bit.. then it got creepy.

  6. This nicely illustrates the stupidity of mandatory sentencing. I expect our federal government will now spend the next 3 years years taking this to the Supreme Court, losing every step of the way, but fully understanding that judge-bashing sits very well with their stupid base, and maybe might even replace the gun registry as a faux grievance for the purpose of raising money from Canada’s stupidest voters.   

    • Yes, all conservatives are stupid.  And all liberals are smart and good.

      Santa hates conservatives.  Santa likes liberals.

      • All conservatives aren’t stupid, it’s just that the vast majority of stupid people happen to be conservative — and that my friend, has been proven!

      • This was maybe not the best thread for “Conservatives are unfairly depicted as foolish and draconian”

  7. Is Canada being pranked by some person claiming to be a Dr. Doob? 

    Last time we heard from Prof Doob, he was arguing that it’s acceptable for adults to give drugs to minors. And now he’s arguing people with guns don’t deserve to be punished. 

    Is Smickle a bookish nerd acting like hoodlum to impress hotties or is he proper gangster? A few wedgies, a couple of noogies and told to smarten up if Smickle was acting out of character, jail time if he’s gangster.

    • Dr. Doob is a renowned criminologist? And you happen to be???

  8. Meanwhile we have Rob Nicholson saying that it’ll be OK to fire warning shots over the head or around someone if you think they might be attacking you or your property – in some circumstances, the minister added, which I presume he would leave to the judges to determine their validity. 
     
    http://www.cbc.ca/news/politics/story/2012/02/09/pol-nicholson-warning-shots.html
     
    What if you make mistake and it was a pizza delivery man with a wrong address?  How many years will you get?

    • Nicholson is a beta-nob behind Harper’s alpha-nob.

    • Or even worse, what if it were your local Tory candidate going door-to-door?

      • My local CPC candidate was a no-show in the last election. Never came door-to-door and  never went to any all candidates’ meetings.

      • As I said elsewhere.. I’m a lousy shot.. 

        Do you think, “But I only intended it to be a warning” would work?

  9. Oh that pesky constitution with its human rights! Why can’t people just do as they’re told?

  10. I wonder if this is going EXACTLY as planned?  Surely this kind fo problem would have been known to the CPC when drafting the law.  And they were probably told that in deserving circumstances the courts would strike down an unfair mandatory minimum.

    So they thought – we can act tough on crime, if screws up it gets corrected AND we can scream at the courts for being too activist? This is going to be a fundraising goldmine! 

    • This is why it’s so often tough to tell what exactly the reasoning is behind much of the Tory agenda.

      The line between “Scheming Machiavellian Political Geniuses” and “Blundering Incompetent Boobs” is just so thin!

  11. what I would like answered is why the Crown Attorney did not consider it a summary offence instead of an indictable offence. And the Judge should have had that discussion with both sides during the trial…
    “rejecting reality and substituting your own” is not a healthy way to implement the law. Laws are supposed to be changed by parliament not by the people implementing them… that is almost like vigilantyism

  12. Well how do we know this guy is not a thug?? Is it just because he said he was just posing for facebook pictures. He obviously wants to be a thug and thought of as a thug by his facebook friends or why would he be posing with a gun. No I think this THUG should be in prison before he actually does kill someone. Maybe then when he got out he wouldn’t think being a thug was so cool. Remember a 3 year sentence he would be out on good behavior in less then a year