Ontario Court of Justice
Date: 2014-03-19
Between:
Her Majesty the Queen
— AND —
Abdi Ishmael
Before: Justice D. P. Cole
Heard on: February 7, March 19, 2014
Reasons for Sentence released on: March 19, 2014
Counsel
For the Crown: J. Cameron, M. Wilson
For the Accused Abdi Ishmael: V. Scaramuzza
COLE J.:
The Facts
[1] On February 27, 2013 members of the Toronto Police Service Gun and Gang Taskforce executed a search warrant at an apartment where the accused resided with his parents and his younger brother (against whom charges will be withdrawn once this matter has been concluded). A prohibited firearm, a Taurus .45 calibre semi-automatic pistol, was discovered in a bedroom drawer; 10 rounds were in the magazine.
[2] Though this accused was apparently not the target of the search warrant, he was immediately charged with numerous offences relating to this firearm and ammunition, and was detained in custody pending a bail hearing. The question of bail on these charges was deferred, no doubt in part because he was already on bail awaiting trial on a separate charge of robbery with a firearm, alleged to have been committed on December 3, 2010. The accused was acquitted of the 2010 robbery charge by Borenstein J. on April 29, 2013, whereupon he launched a bail application in relation to these 2013 charges. This application was ultimately successful, as he was admitted to a "house arrest" bail on May 22, 2013, to which he was subject until the date he entered his plea of guilty (8 months 16 days). As defence counsel strongly urges that his client be given credit for time spent in custody, on bail subject to "house arrest" and bail subject to a curfew going as far back as December 2010, I shall return to this later in these reasons.
[3] I happened to be the judge who presided over a Judicial Pre-Trial in this matter on November 18, 2013, at which time, Crown counsel having indicated that the Crown would elect to proceed by indictment, dates for a two-day preliminary inquiry were set. However, the accused changed his mind and appeared before me on February 7, 2014 (some weeks in advance of the scheduled preliminary inquiry dates), whereupon he entered pleas of guilty to charges of (a) being in possession of a loaded prohibited firearm (Criminal Code s. 95(1)), and (b) being in possession of a firearm without a licence (Criminal Code s. 92). The case was remanded to today's date to allow time for the preparation of a pre-sentence report (PSR).
The Positions of the Parties
(a) Quantum of the Custodial Sentence to be Imposed
[4] As the Ontario Court of Appeal has recently struck down the minimum mandatory sentence of three years incarceration for a s.95 offence, defence counsel's position was that I should impose a custodial sentence of 18 months, less additional allowances for pre-trial custody and time spent subject to house arrest and on curfew, described infra. He argued that the recent Court of Appeal sentencing decision in R. v. Smickle 2014 ONCA 49, where a sentence of two years less one day was held to be prima facie "proper", could be distinguished on its facts. He suggested that the facts in the case at bar were less egregious, in that the loaded handgun was not being held by Mr. Ishmael at the time the police entered the apartment, nor was it even in plain view. Though defence counsel did not use this precise language, I infer that his argument was that these two factors reduced the offender's "moral culpability" or "moral blameworthiness" down to the 18-month level.
[5] Crown counsel took the initial position that the thrust of the Court of Appeal's reasoning in R. v. Nur 2013 ONCA 677, the leading constitutional decision striking down minimum mandatory sentences for s. 95 offences, was to uphold the principle that penitentiary-length sentences should normally be imposed even for first offenders. She cited the Court's decision in R. v. Smickle:
"This court has clearly indicated that convictions under s.95 of the Criminal Code demand denunciatory sentences: see Smickle 2013 ONCA 678 at para. 30; and R. v. Nur at para. 206. Most s.95 offences will attract a penitentiary term even for first offenders." (para. 19; emphasis added).
[6] Crown counsel did not accept that Mr. Ishmael's "moral blameworthiness" was less than that of Mr. Nur, who was carrying a loaded handgun in public in circumstances where it appeared somewhat likely that extreme violence was about to break out, had not the police intervened. Ms Cameron urged that I should give serious consideration to imposing a three-year sentence (as the Court of Appeal said would have been appropriate in R. v. Nur). The only adjustment downwards that she was prepared to concede was that I should make an allowance equivalent to the actual time spent in pre-trial custody.
(b) Allowance for Pre-Trial Custody
[7] Counsel were in agreement as to the number of days credit that should be allowed here. In addition to the 85 days spent in custody before bail was granted on the charges I am now dealing with (February 27 – May 22, 2013), counsel also agreed that credit should be granted for the 5 days spent in pre-trial custody until bail was granted on the original 2010 charges (December 3 – 7, 2010).
[8] Counsel did not, however, agree as to the amount of credit that should be allowed. Crown counsel posited that credit should only be given at the "normal" 1:1 ratio (Criminal Code s. 719(3)). Without calling any evidence on point, defence counsel argued that "enhanced credit" at the 1.5:1 ratio should be awarded (Criminal Code s. 719(3.1)), in order to reflect the conditions of pre-trial confinement experienced by this offender, combined with his inability to earn remission during pre-trial confinement.
(c) Credit for Time Spent on Bail Subject to "House Arrest"
[9] Defence counsel argued that allowance should be made, by way of reduction in the custodial sentence I determine should be imposed, for two periods of time spent on bail subject to house arrest. The first was the period from December 7, 2010 to June 27, 2011 (6 months and 20 days) when the accused was first released from custody on bail for the 2010 robbery charge. Counsel called no evidence as to the degree of restriction on his client's liberty resulting from the conditions of release attached to that bail.
[10] The second period of time spent on "house arrest" defence counsel wished me to consider was the period from May 22, 2013 to February 7, 2014 (8 months 16 days) when the accused was first released from custody on bail for the charges I am now dealing with. While no direct "evidence" was called on point, counsel submitted that this period of time was particularly onerous because the Ishmael family "was torn apart" by the bail conditions imposed on this accused (as well as on his brother). He explained that when the two Ishmael sons were charged with these offences, their parents had to make a difficult decision, recognizing the reality that if bail were to be granted, there would be clauses in each bail order prohibiting contact between the two brothers. Thus, the parents elected to act as sureties for the brother, while other community members agreed to act as sureties for this accused. More importantly, the prohibition on contact meant that this accused has not been able to reside in the family home. However, counsel fairly conceded that (a) there were no restrictions on this accused's ability to see his parents other than in the family home, and (b) though he has not been able to afford the fees to finish his 4-year degree in Health Management Studies, there was nothing in his bail conditions that precluded him from continuing to attend university.
[11] As previously indicated, Crown counsel argued that no credit should be given for either period of time spent on bail subject to "house arrest". She based her brief argument on this issue on the point that there was no evidence as to the intrusiveness of the bail conditions in relation to the first period of time, and that such evidence as existed (in relation to the second period of time) did not at all demonstrate that the restrictions on the offender's liberty were particularly onerous in real terms.
(d) Credit for Time Spent on Bail Subject to a Curfew
[12] Defence counsel also argued that his client should also receive some credits for times spent on bail subject to a curfew. After periods of time spent on bail subject to "house arrest" in relation to both the 2010 and 2013 charges, the respective bails were relaxed to the extent that the "house arrest" restrictions were vacated and partially replaced by curfews. These amounted to 6 months 27 days in relation to the 2010 charges (June 27, 2011 – January 23, 2012), and to the period of time between the day the plea was entered in relation to the 2013 charges (February 7, 2014) and today's date. Counsel neither produced any evidence that the curfews had been particularly onerous, nor did he cite any case law indicating that I am authorized to consider curfew restrictions in reduction of the sentence to be imposed.
(e) Ancillary Orders
[13] Counsel disagreed on the subject of whether probation should be imposed. As previously indicated, Crown counsel's initial position was that even after making an allowance for time actually spent in pre-trial custody, that would not lower the sentence to the two-year or less range, a condition precedent to the availability of probation as an ancillary disposition (Criminal Code s.731(b)). Should I come to the conclusion that a custodial sentence of two years or less should be imposed, Crown counsel alternatively submitted that a two-year period of probation should be imposed. However, my notes do not reflect that I heard from Crown counsel what optional conditions she felt should be imposed.
[14] Defence counsel submitted that, given his client's lack of any previous record and his generally positive antecedents, probation is unnecessary to promote his rehabilitation.
[15] Counsel were in agreement on other ancillary orders respecting the imposition of a weapons prohibition for a period of 15 years (Criminal Code s.109), an order for the forfeiture and destruction of certain offence-related property, and an order for the taking of the offender's DNA. As these are not in dispute, I shall simply make these three ancillary orders at the end of these reasons.
Analysis
(a) Quantum of the Custodial Sentence to be Imposed
[16] Earlier in these reasons I quoted a portion of the Court of Appeal's sentencing judgment in R. v. Smickle. Continuing directly on from the portion I have quoted, the Court went on to say:
"Offences like that committed by the respondent, while somewhat less serious than the typical s.95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders." (para. 19)
From this I discern that it is the view of the Court of Appeal, that even if a loaded prohibited handgun is not being brandished in public (as in R. v. Nur), nevertheless an upper-end reformatory sentence should normally be imposed. [1] Given the recency and thoroughness of these decisions of a five-judge panel of the Court, I am bound to take them as my starting point. I thus start from the proposition that an upper-end reformatory term should normally be imposed on a first offender found in possession of a single loaded prohibited firearm, other than in a public place.
[17] Defence counsel understandably argues that because the handgun and ammunition which is the subject of the charges in the case at bar were concealed in a drawer at the time the officers executed the search warrant on the Ishmael home, the risk to the public (and to the police officers) was not as great as in R. v. Smickle. He urges that this should lead me to reduce the custodial sentence even further. Counsel particularly directs me to the express finding of the Court of Appeal that Mr. Smickle was engaged in "conduct that posed a serious and immediate risk to others" (para. 30), whereas he argues that this factor was not as present in the case at bar. I have considered this submission at length, and while I acknowledge that some of the language in paras. 23-30 of the sentencing decision in R. v. Smickle might support such a distinction, I have come to the conclusion that this amounts to a distinction without a difference as applied to the facts in the case at bar. As the Court of Appeal said in its constitutional reasoning in Smickle:
"[Smickle] was not off by himself in some isolated forest playing with a fully loaded cocked handgun. He was in someone else's apartment located in a high-rise apartment building. It is fair to assume there were other people in the adjoining apartments who could have been at risk had the gun accidentally discharged." (para. 28; emphasis added)
To this I would add that, unlike the facts in Smickle, where the offender was apparently alone for some period of time before the police burst in, in this case three (or four – I was not told who else lived there other than the offender, his brother and parents) other family members lived in and regularly resorted to the apartment; a loaded handgun simply put in a drawer potentially presented a real danger to anyone who happened to open the drawer in the course of routine household management. (I note parenthetically that charges of careless storage of the handgun and ammunition were withdrawn as part of the plea agreement).
[18] Furthermore, as I read R. v. Nur, while the Court of Appeal struck down the overbreadth in Parliament's wording of s.95, throughout the Court was strongly supportive of Parliament's intent in passing legislation targeted at staunching gun crimes. In fact, in addition to commenting on the danger posed to others by Mr. Smickle, the Court expressly commented at several points in its judgment on his "moral culpability" (see paras. 26 and 29). Absent highly exceptional – and usually tightly regulated - circumstances, as Parliament has legislated, a citizen has no authority to be in possession of a loaded prohibited handgun in any circumstances (Smickle para. 29). To my mind the fact that the offender in the case at bar did not have this lethal weapon in his hand at the time the police entered the apartment makes no significant difference in either his moral blameworthiness/culpability or the degree of risk posed to others either in the apartment or in adjacent apartments.
[19] Having said this, I have come to the conclusion that there is an alternative basis on which Smickle can and should be rationally distinguished. In the case at bar, the offender entered a plea of guilty. Mr. Smickle not only declined to enter a plea of guilty, but, as noted at several points in the Court of Appeal's sentencing judgment, he obviously perjured himself through his testimony by denying that he was in possession of the illegal handgun.
[20] The various Canadian sentencing texts virtually all acknowledge that the rationales for (usually) reducing sentences in guilty plea cases are often inconsistent and/or contradictory. For example, Professor Manson writes: "The extent of the mitigating value is affected by the timing of the guilty plea: the earlier, the better." But, somewhat confusingly, he then goes on to suggest that "[c]onvenience to the court by saving its time is not a reason for mitigation...a guilty plea must reflect more than time-saving to support mitigation." (The Law of Sentencing, p. 133). In referring to "disparate principles" in this area, Justice Renaud writes: "The question of the mitigating weight to be assigned to an offender who pleads guilty, or who does not, is quite controversial." (Speaking to Sentence: A Practical Guide, p. 152). In an earlier edition of his text Mr. Ruby writes: "The courts have not been precisely clear about why they are offering a discount for pleas of guilty; the failure to have a consistent rationale has resulted in decisions that to some extent are inconsistent and difficult to understand." (Sentencing, 5th ed., p. 224; these words have been omitted from the current (8th) edition).
[21] Perhaps this lack of judicial consensus as to the rationale(s) for reducing a sentence following a plea of guilty explains why there does not seem to be much consistency in Canadian judicial views as to what amount of credit should be allowed following a guilty plea entered at a relatively early stage in the proceedings. I have found the approach taken in a 2007 "Definitive Guideline" developed by the English Sentencing Guidelines Council (SGC) [2] to be of considerable assistance in this regard. I first note that a portion of the Statement of Purpose makes it clear that such mitigating factors as may exist should be "address[ed] separately… before calculating the reduction for a guilty plea" (s. 2.4). That makes much analytical sense to me, and I now apply it to the case at bar.
[22] In addition to the fact that this weapon was not brandished in a public place, and that it does not appear that it was ever used as an offensive weapon by this accused, I consider that the three main mitigating factors are (a) the lack of any previous record, (b) a quite positive (though not glowing) pre-sentence report (Exhibit 2) [3], and (c) the offender's reasonable educational and employment prospects. However, I should be clear that I have already considered all of these factors in deciding – following the logic in Nur and Smickle – that the appropriate sentence is in the upper-end reformatory range, rather than a penitentiary term. To consider them further at this stage would amount to what the SGC refers to as "double counting".
[23] Since 2003 the English Criminal Justice Act has provided statutory guidance to sentencing judges:
- In determining what sentence to pass on an offender who has pleaded guilty to an offence…a court must take into account:
(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which this indication was given.
[24] To complement the statutory enactment, the SGC has articulated a very utilitarian rationale for applying the reduction principle. Once the mitigating factors have been considered and applied, the Guideline makes it clear that the guilty plea reduction "derives from the need for the effective administration of justice and not as an aspect of mitigation" (s. 2.2). The Council writes:
"A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gaps between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence" (s. 2.2).
[25] The Guideline then contains a formula for applying the reduction principle, the portions most relevant to the case at bar being:
4.1 The level of reduction should be a proportion of the total sentence imposed, with the proportion calculated by reference to the circumstances in which the guilty plea was indicated, in particular the stage in the proceedings. The greatest reduction will be given where the plea was indicated at the "first reasonable opportunity".
4.2 …the level of the reduction will be gauged on a sliding scale ranging from a recommended one third (where the guilty plea was entered at the first reasonable opportunity in relation to the offence for which sentence is being imposed), reducing to a recommended one quarter (where a trial date has been set) and to a recommended one tenth (for a guilty plea entered at the 'door of the court' or after the trial has begun.
[26] Allowing for differences in criminal procedure between Canada and England I can see no good reason in principle for departing from this formula in deciding what amount of credit should be given to Mr. Ishmael for his plea of guilty. In the case at bar, I agree with Crown counsel that because Mr. Ishmael's plea was not entered until after preliminary inquiry dates had been set, therefore his "penetration" into the justice system has been greater than an offender who "pleads out" at the earliest possible opportunity. Even beyond the purely utilitarian English view of these matters, applying any of the various Canadian sentencing rationales proffered in the case law for making a reduction in sentence for a plea of guilty, this offender's plea does not entitle him to the greatest reduction possible. However, given where the prohibited weapon was found in the apartment, and given that two others were originally charged with him, I can readily see that the accused and counsel might well have considered that there were potentially triable issues that could have been explored at a preliminary inquiry. In my judgment, to that extent, the offender's decision to enter his plea of guilty some weeks in advance of the dates set for the preliminary inquiry is one which entitles him to some considerable reduction in sentence, albeit not at the maximum level.
[27] In all of the circumstances, I have decided that a reduction of one quarter of the otherwise merited custodial sentence of two years less a day is appropriate in this case. Thus, albeit for quite different reasons than those advanced during submissions, I have come to the conclusion that defence counsel is right that an 18 month custodial sentence will adequately balance the principles of denunciation and deterrence with the offender's lack of criminal antecedents and his rehabilitative prospects. As I have enunciated, such a sentence will as well give appropriate weight to the plea of guilty at a relatively early stage in the proceedings. I now turn to the question of whether additional credit should be given to any of the various forms of pre-trial custody and restrictive bail conditions.
(b) Credit for Time Spent on Bail
[28] In my view the various arguments advanced by defence counsel in favour of credits for time spent on house arrest or subject to a curfew may be dealt with very simply. These issues have been extensively considered by the Court of Appeal in several cases in recent years – a partial list includes R. v. Downes (2006), 205 C.C.C. (3d) 488; R. v. Panday (2007) 2007 ONCA 598, 226 C.C.C. (3d) 349; R. v. Ijam 2007 ONCA 597; R. v. Lindsay 2009 ONCA 532; R. v. M.G. 2007 ONCA 837; R. v. Junkert 2010 ONCA 549. As continually noted by the Court in these cases (decided more recently than some of the older cases referred to by defence counsel), an offender released on bail is not in custody. It therefore follows that if any credit is to be given, it must in some way reflect that the conditions imposed on the offender's bail release are restrictive to the point where they can be rationally shown to significantly affect the offender's liberty. Even assuming that I am able, as a matter of law, to consider making such an allowance, the lack of any evidence on point leaves me in the position that I simply cannot evaluate whether this house arrest or the periods of time spent subject to a curfew were particularly onerous. In the case at bar, I have no evidence at all that three of the four periods for which credit is sought - the house arrest on the 2010 charges, the curfew on either the 2010 or the 2013 charges – have in any meaningful way intruded into the offender's liberty. As to the one period of time for which I do have some "evidence" – the de facto removal of the accused from his family home because of the restriction on contact with his brother – I do not consider that this even comes close to rising to the level at which the Court of Appeal has considered it appropriate to merit some allocation of credit while subject to "house arrest" bail. On the record before me, I thus decline to award any credit for any time spent on house arrest or subject to curfews.
(c) Credit for Pre-Trial Custody
[29] Pending what the Supreme Court of Canada ultimately decides in R. v. Johnson and related pending cases regarding the rules to be applied to the awarding of pre-trial custody credit, the wording of the Code seems clear that any award of credit must be restricted to "time spent in custody by the person as a result of the offence" (Criminal Code s. 719(3); emphasis added). I am aware that both counsel are in agreement that credit should be given for the 5 days pre-trial custody pending bail release on the 2010 charge. With respect, in the absence of a successful s.524 application once the 2013 charges were laid (and even that seems dubious), I entirely fail to see how time spent in pre-trial custody on another charge in 2010 can be said to provide a credit against the sentence to be imposed for charges laid in 2013. As I said to defence counsel when he advanced this proposition, pre-trial custody credits are not some sort of "bank" against which an offender may later draw reductions in sentence for other offences. Only the clearest of authority would persuade me that I have any discretion in this regard. Neither counsel has been able to produce any in fact scenarios at all similar to this one. Thus, despite Crown counsel's concession, I am unwilling to award any credit for the 5 days spent in pre-trial custody on a different charge in 2010.
[30] I have found the question of whether to award credit for the 85 days spent in pre-trial custody on the charges I am dealing with to be more difficult. Once again, both counsel concur that I should make some reduction – although, as previously indicated, they disagree on the extent of credit to be awarded. I agree there seems to be a practice that at least 1:1 credit is usually given in normal circumstances. As Parliament has generally recognized in the recent amendments, there seems to be a certain common sense logic to the notion that at least 1:1 credit should frequently be given for time spent in pre-trial custody. After all, a day in custody is a day in custody, regardless of whether it is served before or following a finding of guilt. [4] However, unlike the mandatory "credit" for time spent in pre-trial custody when a life sentence is imposed (Criminal Code s. 746), the use of the word "may" in s. 719 makes it clear that the decision to award credit is discretionary, and there is a clear line of cases – particularly youth cases – where courts have held that it would sometimes unduly deprecate both the symbolic and practical message of a sentence to make some or any allowance for pre-trial custody. In other words, whatever may the "the usual practice" that I – and likely every other sentencing judge – routinely engages in on a daily basis, it is by no means imperative or essential as a matter of law that such credit be given.
[31] Though of course all numbers imposed by sentencing judges have a certain arbitrary element to them, and while I normally would make some allowance for pre-trial custody by way of a reduction in sentence, I have come to the conclusion that, even if I adopt the Crown position of awarding a 1:1 credit, reducing the custodial portion of this sentence to about the 15-month level would unduly undermine what the Court of Appeal very recently said in R. v. Smickle about the appropriateness of imposing sentences at or near the maximum reformatory term in fact patterns such as this. Further, though I am not aware of any media interest in this case, I believe that such a sentence would send the wrong denunciatory message to the public at large, as well as to this offender.
[32] In result, concurrent custodial sentences of 18 months are imposed for each of the two offences before the court. Because I decline to give any credit for time spent in pre-trial custody, I will not formally endorse the Information to the effect that 85 days have been spent in pre-trial custody. (Having said this, of course a copy of these reasons will be attached to the Information so that anyone interested may have access to the number of actual pre-trial custody days).
(d) Ancillary Orders
[33] I now turn to the question of probation. Despite what was urged by defence counsel, I am of the view that the two year probationary term proposed by Crown counsel is appropriate. Defence counsel's position was based on his assertion that probation is unnecessary to promote his client's rehabilitation. Perhaps this is so; if, after observing his behaviour in the community his probation officer considers that Mr. Ishmael's post-custodial conduct is such that probation is no longer necessary, an application may be brought – on notice to the Crown – to terminate probation early. However, as the Supreme Court of Canada's decision in R. v. Proulx (2000) 2000 SCC 5, S.C.J. No. 6 makes clear, probation has another, equally important element to it, namely "the protection of society". Beyond the statutory conditions contained in every probation order that are designed to further this goal – keeping the peace and being of good behaviour, appearing before the court as directed, and notifying the court or probation officer of changes in work, residence or name – I have considered that the following optional conditions of probation will further the goal of protecting society, without unduly interfering with the offender's rehabilitation:
The offender will report to a probation officer within two working days of his release from custody, and thereafter as directed;
The offender will remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained in advance from his probation officer;
The offender will abstain from owning, possessing or carrying a weapon;
The offender will refrain from knowingly contacting, or being in the company of any person known to him to have a criminal record, except as may be permitted in advance by his probation officer.
[34] Furthermore, while I acknowledge that the offender has done at least 275 hours of voluntary community service on a pre-trial basis (see Exhibit 1 and some of the letters filed as part of Exhibit 5); nevertheless, given that he is receiving a custodial sentence considerably below the range approved by the Court of Appeal in R. v. Smickle, I see nothing wrong – and much right – with ordering him to perform a considerable number of additional community service hours once he is released from custody subject to probation. In this way, he can more directly repay society for his very serious breach of our social norms. Thus:
- The offender will perform 200 hours of community service, commencing within 15 days of the commencement of his probationary period, to be completed within 16 months of the probationary period.
(As neither counsel has had an opportunity to provide input into these proposed conditions, I shall refrain from making a formal order until I have heard from them).
[35] Because it is often forgotten, I also wish to add that the length of, and conditions attached to, a probationary term has important social consequences, in that it reminds both the offender and society at large that he will now be subject to State control for the next 3 ½ years, which is in fact 6 months longer than the maximum term sought by the Crown. Given this, I believe that sensible, tolerant and properly informed members of this community would agree with this sentence.
[36] As agreed between counsel, I make the following ancillary orders:
The offender is prohibited from being in possession of any firearms, explosives or ammunition for a period of 15 years.
There will be an order for the forfeiture and destruction of the firearm, ammunition and the bulletproof vest seized.
There will be an order for the production of a DNA sample pursuant to s. 487.051(4) of the Criminal Code.
Released: March 19, 2014
Signed: "Justice D.P. Cole"
Footnotes
[1] Indeed, appellant and respondent's counsel in R. v. Smickle jointly adopted what the Court had suggested in its judgment on the constitutional issue, that "a sentence approaching or at the maximum reformatory term (two years less a day) would have been appropriate [for this offence] absent a mandatory minimum sentence" (Smickle 2013 ONCA 678 at para. 30).
[2] Reduction in Sentence for a Guilty Plea, available at www.sentencingcouncil.judiciary.gov.uk. (It is my information that the Council is currently in the process of reviewing this 2007 Guideline, and a new version may be available in 2015).
[3] I come to this conclusion because it is obvious that the offender lied to the writer of the Report when he claimed "that he had found [the handgun] in the woods and that he initially did not know what to do about it so he brought it home". When challenged by the writer the offender apparently now "realizes that he is at the court's mercy in terms of being believed".
[4] I am omitting from consideration here any of the various points made by Profs. A. Doob and C. Webster in their article "The 'Truth in Sentencing' Act: The Triumph of Form Over Substance" (2013) 17 Can. Crim. L. R. 365.