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.