R. v. Smickle, 2013 ONCA 678

Case Summary

The Crown appealed the sentence imposed on the respondent for possession of a loaded prohibited firearm. The trial judge had declared the three-year mandatory minimum sentence unconstitutional under s. 12 of the Charter and imposed a five-month conditional sentence. The Court of Appeal upheld the declaration that the mandatory minimum violates s. 12 of the Charter, relying on its companion decision in R. v. Nur. However, the Court found that the trial judge made unsupported findings of fact that improperly mitigated the offence. The Court concluded the original sentence was manifestly inadequate and requested further submissions to determine an appropriate sentence.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smickle, 2013 ONCA 678

DATED: 20131112

DOCKET: C55082

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Leroy Smickle

Respondent

Riun Shandler and Andreea Baiasu, for the appellant

Mark Halfyard, Jeff Hershberg and Breana Vandebeek, for the respondent

Moiz Rahman and Nancy Dennison, for the intervener, the Attorney General of Canada

Paul F. Monahan and Kimberly Potter, for the intervener, the Canadian Civil Liberties Association

Bruce F. Simpson, for the intervener, the John Howard Society of Canada

Virginia Nelder and Faisal Mirza, for the intervener, the African Canadian Legal Clinic

Scott Hutchison and Danielle Robitaille, for the intervener, the Advocates’ Society

Heard: February 19-22, 2013

On appeal from the sentence imposed by Justice Anne M. Molloy of the Superior Court of Justice in Toronto on February 13, 2012, with reasons reported at 2012 ONSC 602, 280 C.C.C. (3d) 365.

Doherty J.A.:

I

overview

[1] The respondent was charged with possession of a loaded prohibited firearm contrary to s. 95 of the Criminal Code, R.S.C. 1985, c. C-46 and other related firearm offences. The Crown elected to proceed by indictment on the s. 95 charge and the respondent re-elected trial by judge alone.

[2] The respondent testified that he was not in possession of the gun, but the trial judge accepted the evidence of the Crown witnesses and convicted on the s. 95 charge.

R. v. Smickle, 2013 ONCA 678

Case Summary

COURT OF APPEAL FOR ONTARIO

I

overview

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legislation 6