Sentencing Firearms Convictions Without Mandatory Minimums: R v Smickle

In 2012 Justice Anne Molloy of the Ontario Superior Court of Justice ruled that the law mandating three-year mandatory minimum sentences for possession of a loaded, prohibited firearm was unconstitutional. Instead, the respondent, who had been convicted of possession of a loaded, prohibited firearm contrary to section 95 of the Criminal Code, RSC 1985, c C-46 [Criminal Code], was given a twelve-month sentence, three months of which were to be spent in custody: 2012 ONSC 602.

The Crown appealed the sentence. Last November, the Ontario Court of Appeal released a series of decisions agreeing that a mandatory minimum of three years for possession of a loaded, prohibited firearm was unconstitutional. However, the Court of Appeal also found that the sentence imposed by the trial judge was manifestly unfit and sought further submissions on the matter (for more, read Ryan’s bulletin): 2013 ONCA 678.

In late January 2014, a five-judge panel of the Ontario Court of Appeal sentenced the respondent to an additional twelve months of incarceration and permanently stayed the execution of the sentence. The court determined that two years less a day would have been an appropriate sentence. However, under the circumstances, the community would be best protected by allowing the respondent to continue along a rehabilitative path, rather than by re-incarcerating him: R v Smickle, 2014 ONCA 49 [Smickle].

The Sentence at Trial and at the Appeal

The trial judge found that the respondent picked up a gun while visiting his cousin’s apartment. He was in the process of using his laptop to take pictures of himself with the gun when the police entered the apartment pursuant to a search warrant and arrested the respondent.

The trial judge found that the respondent had no intention to use the gun against the police, had no criminal intent with respect to the gun and had no reason to believe he was putting someone in harm’s way. The respondent was sentenced for twelve months, three in custody and nine on house arrest.

The Court of Appeal expressed discomfort with many of the trial judge’s findings of fact and ruled that they lacked an evidentiary basis (Smickle, para 23). The trial judge’s sentence was declared manifestly unfit and new submissions on the issue were requested.

In their submissions, the respondent and the Crown both agreed that two years less a day would have been an appropriate sentence. The issue became whether the respondent should be re-incarcerated for an additional twelve months or whether, under the circumstances, re-incarceration would be unjust.

Firearms Offences Are Serious

Convictions for firearm offences will usually demand denunciatory sentences. The Court of Appeal wrote: “most s. 95 offences will attract a penitentiary term, even for first offenders” (para 19). While the mandatory sentence of three years was excessive, the agreed upon sentence of two years less a day remains significant.

The determination that two years would have been an appropriate sentence was provided as general guidance for sentencing judges (para 12). Persons convicted of possessing loaded, prohibited firearms can expect to be incarcerated, often for years, even for a first offence.

Denunciation and Deterrence Did Not Require Re-incarceration

The Court of Appeal agreed with the Crown that possession of a loaded, prohibited firearm was a serious offence making the principles of deterrence and denunciation paramount. The court took into account the fact that five years had passed since the initial charge, including two years of uncertain “legal limbo” since completion of the original sentence. The court also acknowledged the accused’s positive, law-abiding lifestyle (including his financial support of two children) since his release.

The court concluded that the community would be best protected by allowing the respondent to continue along his rehabilitative path. The principles of deterrence and denunciation could be fully served without re-incarcerating the respondent.

Every day criminal courts strike balances between denunciation and deterrence of crimes through incarceration and other principles like restoration and rehabilitation. The combination of delayed legal proceedings and the accused’s positive lifestyle in the interim led the Court of Appeal in Smickle to provide relief for the sake of the respondent’s rehabilitation. Notwithstanding, deterrence and denunciation remain prominent factors when sentencing firearms offences.