Canada has no business sending Leroy Smickle to the federal penitentiary for three years. Alone in a private home, the Toronto man was holding a loaded handgun that apparently didn’t belong to him, and trying to take a photo of himself on a laptop. It’s an unusual situation – life is funny that way. And that is why judges often need some manoeuvring room, and why mandatory minimum penalties may be deemed cruel and unusual punishment, as this one was.
The Criminal Code has 46 offences with mandatory minimum penalties, a good number of them put there by the Conservative government. Some make sense, like the mandatory life sentence with no parole for 25 years for first-degree murder. But sometimes the real point seems to be to declare that judges can’t be trusted to protect Canadians. And justice may get lost.
Mr. Smickle had no criminal record when he was charged at 27. He has a full-time job as a cleaner, and a family. He chose not to go out to a club with his cousin, the judge said, because he had to be up for work the next day. Alone, he did a stupid thing by picking up that gun. At the same moment, the police showed up with a search warrant to look for guns in his cousin’s home, and broke down the door. He immediately dropped the gun and laptop. That he was not shot and killed by police verges on the miraculous, and is a credit to the police.
The penitentiary is no place for Mr. Smickle. He acted stupidly, as Madam Justice Anne Molloy of the Ontario Superior Court of Justice wrote, but he is not in need of rehabilitation. The only purpose federal jail time would serve would be to school him in criminal matters, and sever him from his job and family. As Judge Molloy said, three years is “grossly disproportionate,” and therefore cruel and unusual punishment under the Charter of Rights. Canada could send a message and still allow for exceptional cases to be exempt from the obligatory minimums, as England and Wales do.
Parliament has every right to set parameters for sentencing and to try to ensure that a strong message of deterrence is sent to those who have guns. (A previous Liberal government had adopted a one-year minimum in 1998.) But mandatory minimums can put such strict constraints on judicial discretion that they create injustices. In this case, the ends did not justify the means, and Judge Molloy was right to say so.
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