R. v. Smickle, 2012 ONSC 602

Her Majesty the Queen v. Smickle [Indexed as: R. v. Smickle]

110 O.R. (3d) 25

2012 ONSC 602

Ontario Superior Court of Justice,

Molloy J.

February 13, 2012

Charter of Rights and Freedoms -- Cruel and unusual treatment or punishment -- Mandatory minimum sentence -- Accused convicted of possession of loaded firearm after posing briefly with loaded handgun -- Firearm not belonging to accused -- Relatively youthful accused having no criminal record -- Appropriate sentence in absence of mandatory minimum three- year sentence in s. 95(2) of Criminal Code being one year -- Three-year sentence grossly disproportionate to what accused deserved for single act of bad judgment -- Mandatory minimum sentence violating s. 12 of Charter -- Violation not justified under s. 1 of Charter -- Impugned provision not minimally impairing and failing to meet proportionality criterion -- Appropriate remedy declaration of invalidity -- Canadian Charter of Rights and Freedoms, ss. 1, 12 -- Criminal Code, R.S.C. 1985, c. C-46, s. 98.

Charter of Rights and Freedoms -- Fundamental justice -- Mandatory minimum sentence -- Two-year gap existing between maximum sentence of one year for possession of loaded firearm under s. 95 of Code where Crown proceeds summarily and mandatory minimum sentence of three years where Crown proceeds by indictment -- Hybrid scheme in s. 95 arbitrary and violating s. 7 of Charter -- Violation not justified under s. 1 of Charter -- Impugned provision not minimally impairing and failing to meet proportionality criterion -- Appropriate remedy declaration of invalidity -- Canadian Charter of Rights and Freedoms, ss. 1, 7 -- Criminal Code, R.S.C. 1985, c. C-46, s. 95.

The accused, a relatively youthful first offender, was convicted of possession of a loaded firearm contrary to s. 95 of the Criminal Code. He was posing in his cousin's apartment with a loaded handgun, taking his picture for his Facebook page, when the police broke in to execute a search warrant in relation to his cousin. The evidence did not establish that the firearm belonged to the accused or that he intended to use it as a weapon against the police. As the Crown had proceeded by indictment, the offence attracted a mandatory minimum sentence of three years' imprisonment under s. 95(2) of the Code. The accused brought an application challenging the constitutionality of the mandatory minimum sentence.

Held, the application should be allowed.

In the absence of the mandatory minimum penalty, the appropriate sentence in the circumstances would be one year. A three-year sentence was not necessary to rehabilitate the accused, nor did it comply with recognized sentencing principles. On the contrary, it was inconsistent with many of the purposes and principles of sentencing, notably the goal of rehabilitation and the requirement that an individual not be deprived of his liberty if other sanctions are available which satisfy the other goals of sentencing. A three-year sentence would be grossly disproportionate to what the accused deserved for a single act of bad judgment and foolishness. The mandatory minimum sentence violates s. 12 of the Canadian Charter of Rights and Freedoms. [page26 ]

Possession of a loaded firearm is a hybrid offence. Where the Crown proceeds summarily, the maximum sentence is one year. There is a two-year gap between that sentence and the mandatory minimum sentence where the Crown proceeds by indictment. There is no valid legislative purpose for that gap. By eliminating the entire range of sentences between one and three years, the effect of the legislation is to constrain the flexibility of the hybrid procedure and significantly limit Crown discretion. The gap will inevitably lead to unfit sentences in the low and mid-range of s. 95 cases. The mandatory minimum, when coupled with the one-year ceiling for summary conviction proceedings, is arbitrary and violates s. 7 of the Charter. The violations of ss. 7 and 12 of the Charter are not justified under s. 1 of the Charter. The impugned legislation is not minimally impairing and fails to meet the proportionality criterion.

Where a mandatory sentence is found to be unconstitutional, a constitutional exemption is not available, and the appropriate remedy is a finding of invalidity under s. 52(1) of the Constitution Act, 1982. A reduced sentence, therefore, was not an appropriate remedy in this case, as it would amount to a constitutional exemption. It was not state action that gave rise to a remedy in this case. The Crown's discretion was validly exercised based on the facts known to the Crown at the time. It was the legislation itself that caused a conflict with ss. 7 and 12 of the Charter. Mandamus requiring the Crown to exercise its discretion in a particular way was not a workable remedy in the circumstances of this case. A declaration should be issued that the reference to "a minimum sentence of imprisonment of, in the case of a first offence, three years", as set out in s. 95(2) (a) of the Code, is of no force or effect.

A one-year conditional sentence was appropriate in the circumstances. The accused was given a credit for pre-trial custody and was sentenced to a further five months conditional.

APPLICATION for a declaration that a mandatory minimum sentence for possession of a loaded firearm is unconstitutional.

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Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71, 140 D.L.R. (3d) 612, 43 N.R. 361, J.E. 82-824, 68 C.C.C. (2d) 477, 30 C.R. (3d) 289, 8 W.C.B. 128; R. v. Hess, 1990 89 (SCC), [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91, 119 N.R. 353, [1990] 6 W.W.R. 289, J.E. 90-1424, 73 Man. R. (2d) 1, 46 O.A.C. 13, 59 C.C.C. (3d) 161, 79 C.R. (3d) 332, 50 C.R.R. 71, 11 W.C.B. (2d) 199; R. v. Johnson, [2011] O.J. No. 822, 2011 ONCJ 77, 227 C.R.R. (2d) 41, 82 C.R. (6th) 241, 268 C.C.C. (3d) 423; R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76, 44 D.L.R. (3d) 351, 1 N.R. 322, 15 C.C.C. (2d) 524, 26 C.R.N.S. 1; R. v. Labaye, [2005] 3 S.C.R. 728, [2005] S.C.J. No. 83, 2005 SCC 80, 260 D.L.R. (4th) 595, 342 N.R. 304, J.E. 2006-101, 203 C.C.C. (3d) 170, 34 C.R. (6th) 1, 136 C.R.R. (2d) 220, 67 W.C.B. (2d) 837; R. v. Latimer, [2001] 1 S.C.R. 3, [2001] S.C.J. No. 1, 2001 SCC 1, 193 D.L.R. (4th) 577, 264 N.R. 99, [2001] 6 W.W.R. 409, 203 Sask. R. 1, 150 C.C.C. (3d) 129, 39 C.R. (5th) 1, 80 C.R.R. (2d) 189, REJB 2001-21909, 48 W.C.B. (2d) 279; R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990, 111 O.A.C. 25, 127 C.C.C. (3d) 57, 17 C.R. (5th) 1, 54 C.R.R. (2d) 189, 39 W.C.B. (2d) 217 (C.A.); R. v. Miller, 1976 12 (SCC), [1977] 2 S.C.R. 680, [1976] S.C.J. No. 91, 70 D.L.R. (3d) 324, 11 N.R. 386, [1976] 5 W.W.R. 711, 31 C.C.C. (2d) 177, 38 C.R.N.S. 139; R. v. Nasogaluak, [2010] 1 S.C.R. 206, [2010] S.C.J. No. 6, 2010 SCC 6, 315 D.L.R. (4th) 193, EYB 2010-169818, 2010EXP-739, 206 C.R.R. (2d) 100, J.E. 2010-403, 251 C.C.C. (3d) 293, 398 N.R. 107, 72 C.R. (6th) 1, [2010] 4 W.W.R. 1, 90 M.V.R. (5th) 1, 474 A.R. 88, 19 Alta. L.R. (5th) 1; R. v. Ng, [2003] A.J. No. 489, 2003 ABCA 1, [2003] 11 W.W.R. 429, 18 Alta. L.R. (4th) 77, 327 A.R. 215, 173 C.C.C. (3d) 349, 12 C.R. (6th) 1, 105 C.R.R. (2d) 315, 57 W.C.B. (2d) 460 [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 33]; R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29, 165 N.R. 241, J.E. 94-649, 117 Nfld. & P.E.I.R. 269, 89 C.C.C. (3d) 1, 29 C.R. (4th) 1, 2 M.V.R. (3d) 161, 23 W.C.B. (2d) 194; R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, 182 D.L.R. (4th) 1, 249 N.R. 201, [2000] 4 W.W.R. 21, J.E. 2000-264, 142 Man. R. (2d) 161, 140 C.C.C. (3d) 449, 30 C.R. (5th) 1, 49 M.V.R. (3d) 163; Reference re Motor Vehicle Act (British Columbia) S 94, 1985 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 24 D.L.R. (4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, J.E. 86-99, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, 15 W.C.B. 343; S. v. Malgas, 2001 (1) SACR 469 (S.C.A.); [page28 ]Schachter v. Canada, 1992 74 (SCC), [1922] 2 S.C.R. 679, [1992] S.C.J. No. 68, 93 D.L.R. (4th) 1, 139 N.R. 1, J.E. 92-1054, 92 CLLC Â14,036 at 12221, 10 C.R.R. (2d) 1, 34 A.C.W.S. (3d) 1090; Steele v. Mountain Institution, 1990 50 (SCC), [1990] 2 S.C.R. 1385, [1990] S.C.J. No. 111, 121 N.R. 198, [1990] 6 W.W.R. 673, J.E. 90-1595, 51 B.C.L.R. (2d) 1, 60 C.C.C. (3d) 1, 80 C.R. (3d) 257, 2 C.R.R. (2d) 304, 11 W.C.B. (2d) 347 Statutes referred to Aeronautics Act, R.S.C. 1985, c. A-2 Canadian Bill of Rights, S.C. 1960, c. 44 [as am.] Canadian Charter of Rights and Freedoms, ss. 1, 7, 12, 24, (1), (2) Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52, (1) Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 56 Criminal Code, R.S.C. 1985, c. C-46, ss. 95 [as am.], (1), (2) [as am.], (a) [as am.], (i), (b), 718 [as am.], 718.1 [as am.], 718.2 [as am.], (a) [as am.], (b), (d), (e), 742.1 [as am.] Criminal Justice Act 2003 (U.K.), 2003, c. 44, s. 287(2) Criminal Law Amendment Act, vol. 510, No. 30638 of 2007, s. 51(3) (a) Firearms Act, S.C. 1995, c. 39, s. 139 Highway Traffic Act, R.S.O. 1990, c. H.8 Tackling Violent Crime Act, S.C. 2008, c. 6, s. 8 Authorities referred to Tarnopolsky, Walter S., "Just Deserts or Cruel and Unusual Treatment or Punishment? Where Do We Look for Guidance?" (1978), 10 Ottawa L. Rev. 1

Christopher Webb and Jessica Smith Joy, for Crown. Dirk Derstine and Jeff Hershberg, for applicant (defendant).

MOLLOY J.: -- A. Introduction

[ 1 ] At just before 2:00 a.m. on March 9, 2009, Leroy Smickle was engaged in a very foolish act. He was alone in the apartment of his cousin, Rojohn Brown, having elected (because he had to be at work in the morning) to stay in while his cousin went out to a club. Mr. Smickle was reclining on the sofa, wearing boxer shorts, a white tank top and sunglasses. Thus clad, he was in the process of taking his picture for his Facebook page, using the webcam on his laptop computer. For reasons known only to Mr. Smickle, and which arguably go beyond mere foolishness, he was posing in this manner with a loaded handgun in one hand. Unfortunately for Mr. Smickle, at this exact moment, members of the Toronto Police Emergency Task Force and the Guns and Gangs Squad were gathered outside the apartment preparing to execute a search warrant in relation to Mr. Brown, who was believed to be in possession of illegal firearms. They [page29 ]smashed in the door of the apartment with a battering ram, and Mr. Smickle was literally caught red- handed, with a loaded illegal firearm in his hand. He immediately dropped the gun and the computer, as ordered to by the police, and was thereupon arrested.

[ 2 ] Mr. Smickle was charged with various offences in relation to the possession of the gun. The Crown proceeded by indictment and, after the preliminary inquiry, Mr. Smickle was committed for trial. He pleaded not guilty and elected to be tried by a judge sitting alone without a jury. At the trial before me, Mr. Smickle testified on his own behalf. His evidence was essentially the same as that of the police officers, except that he denied the presence of any gun. I did not believe his testimony on that point and was satisfied beyond a reasonable doubt that he did have the gun in his hand when the police entered the apartment, just as described by the officers who testified.

[ 3 ] Having convicted Leroy Smickle of possession of a loaded firearm contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code"), I must now impose a fit sentence for this offender and this crime. Mr. Smickle has no criminal record. Pursuant to s. 95(2) of the Code, the mandatory minimum sentence for a first offence under this provision, if prosecuted by indictment, is imprisonment for three years. Mr. Smickle challenges the constitutional validity of the minimum mandatory sentence I would be compelled to impose under s. 95(2). If the legislation is valid, I have no discretion; he must be sentenced to three years in a federal penitentiary.

[ 4 ] The defence argues that (a) the hybrid punishment scheme for this offence is arbitrary and violates s. 7 of the Canadian Charter of Rights and Freedoms; (b) the minimum sentence of three years' imprisonment constitutes cruel and unusual punishment, both with respect to the circumstances of this case and other reasonable hypothetical situations, and therefore violates s. 12 of the Charter; (c) neither infringement can be justified under s. 1 of the Charter; and (d) the appropriate remedy is to strike down s. 95(2) and impose the sentence that would otherwise be fit for this offender and this crime. [page30 ]

[ 5 ] The defence submits that the appropriate sentence for Mr. Smickle is a conditional sentence of one year or less, to be served in the community.

[ 6 ] The Crown submits that there is no s. 7 breach because the hybrid scheme for this offence is not arbitrary when considered in light of the objectives of the legislation.

[ 7 ] With respect to the "cruel and unusual punishment" issue, the Crown initially took the position that on the facts of this case it is a reasonable inference that the gun belonged to Mr. Smickle, that he brought it with him to his cousin's apartment that night, and that he therefore had been walking about in the community with it. Based on that factual underpinning, it was argued that a three-year sentence was within the appropriate range of sentence and could not be considered cruel and unusual punishment. As I will develop more fully below, my findings of fact do not support this scenario. Based on the facts as found, i.e., that Mr. Smickle was merely posing with a gun that he likely found in the apartment, the Crown argues that even if a three-year sentence could be described as "unfit", it does not reach the level of "cruel and unusual punishment" required to violate s. 12 of the Charter.

[ 8 ] The Crown submits that the appropriate sentence for Mr. Smickle is three years in prison, the minimum sentence required under the constitutionally valid legislation. Alternatively, the Crown submits that if the minimum sentence breaches Mr. Smickle's rights under the Charter, the appropriate remedy is a personal one in the form of a reduction in his sentence rather than striking the legislation itself.

[ 9 ] For the reasons that follow, I find the minimum sentence imposed by s. 95(2) to be unconstitutional. The appropriate sentence for the type of conduct engaged in by Mr. Smickle does not approach three years in a federal penitentiary. To impose such a sentence on him in these circumstances, particularly in light of his unblemished past, constitutes cruel and unusual punishment and would breach s. 12 of the Charter. Further, in my view, the structure of the hybrid scheme for prosecution of this offence is irrational and arbitrary and breaches s. 7 of the Charter. The proper constitutional remedy is to strike down s. 95(2) of the Criminal Code. This will take effect immediately. I consider one year to be an appropriate sentence for Mr. Smickle and I see no reason why that should not be served in the community as a conditional sentence. [page31 ]

[ 10 ] In the course of my reasons, and throughout my deliberations in this case, I have made extensive reference to the decision of my colleague Code J. in R. v. Nur. [See Note 1 below] That case also involved a constitutional challenge to the mandatory minimum sentence of three years for possession of a loaded restricted firearm. On the facts of the case before him, and based on the manner in which the case was framed, Code J. found the legislation to be constitutional. I have come to a different conclusion in the result, but have adopted most of the reasoning in that decision. The result for Mr. Smickle is different because of the unusual fact situation involved and because Mr. Smickle had standing to challenge points upon which Mr. Nur was unsuccessful only because of his lack of standing.

[ 11 ] My detailed reasons for reaching these conclusions are set out below. B. Factual Background (i) Circumstances of the offence

[ 12 ] Immediately following the trial, I gave oral reasons for convicting Mr. Smickle on the charges of possession of a loaded firearm and careless storage of that same handgun. Essentially, I accepted the testimony of the police officers that upon entry into the apartment they saw Mr. Smickle starting to rise from the couch. He had been semi-reclined on the couch with his back to the door and was turning towards the door as he got up. The first two officers into the apartment testified that they saw a handgun in Mr. Smickle's left hand. The police deployed a distraction device, which went off near the couch with a loud bang and a flash of light, and they ordered Mr. Smickle to get to the ground. The officers testified that Mr. Smickle immediately dropped what was in his hands (the gun and a laptop computer) and lay down on the floor. They said he was wearing boxer shorts and a tank top. One of the officers also noticed sunglasses. The officers further testified that at no time did Mr. Smickle point the gun in their direction. Other officers who entered behind the initial officers saw the handgun lying on the floor adjacent to the couch where Mr. Smickle had been reclining at the time of the initial entry. Photographs filed as exhibits depict the gun in that location.

[ 13 ] For purposes of conviction, it was not necessary for me to determine what Mr. Smickle was doing with the gun before the [page32 ]police arrived, or how he came to be in possession of the gun, and I did not do so. However, in light of arguments made by the Crown at the time of sentencing, it is now necessary to deal with those points.

[ 14 ] The Crown now argues that the gun belonged to Mr. Smickle and that he brought it with him to his cousin's apartment that night. Such a suggestion would mean that Mr. Smickle did not merely possess the gun while alone in a private dwelling, but that he carried the gun in public. The Crown submits that is an aggravating circumstance for sentencing. I agree that this would be an aggravating circumstance, if it had been proven. However, I do not agree that those facts were established at trial.

[ 15 ] The Crown points to a portion of my oral reasons in which I stated:

According to Mr. Smickle, he was the only person in the apartment. He said that the tenant of the apartment was his distant cousin, Rojohn Brown. Mr. Brown was in fact the person named on the warrant, and there were many documents found in the apartment that would indicate that he in fact was the tenant of that apartment. I accept Mr. Smickle's evidence that he was just there as a visitor, and I have no reason to believe that he was aware of any of the contents, in particular, of Mr. Brown's bedroom.

[ 16 ] The Crown argues that it is a reasonable inference from those findings that Mr. Smickle had no knowledge of any gun in the apartment and that he must, therefore, have brought the gun himself. I do not agree that such an inference can reasonably be drawn from those words. However, if that inference does arise from the language I used, it was certainly not my intention to make such a finding. On the contrary. There was no evidence as to the ownership of the gun and I have no reason to believe that it belonged to Mr. Smickle. There was evidence before me that Mr. Smickle was never on the police radar; it was Mr. Brown who was believed to be the tenant of the apartment and Mr. Brown who was believed to be in possession of illegal firearms. Other guns were found in Mr. Brown's bedroom. The point I was attempting to make in my oral reasons at the conclusion of the trial was that Mr. Smickle, as a mere visitor to the apartment, could not be fixed with knowledge of all of its contents. In particular, there was no basis for concluding that Mr. Smickle had knowledge of the other guns in Mr. Brown's bedroom.

[ 17 ] It would be an aggravating factor in sentencing if Mr. Smickle was the owner of the gun and had brought it with him to the apartment. I would therefore need to be satisfied of that fact beyond a reasonable doubt before taking it into account [page33 ]on sentencing. [See Note 2 below] I am not satisfied of that fact beyond a reasonable doubt. There is no evidence, beyond physical possession at the time of the police entry, linking Mr. Smickle to the gun. The most likely explanation, given the information about Mr. Brown and the other guns found in the apartment, is that Mr. Smickle found the gun somewhere in the apartment and took that opportunity to "show off" with it for the benefit of his friends on Facebook.

[ 18 ] It took three smashes from the battering ram to break down the apartment door. Mr. Smickle testified that when he heard the first bang, he thought it was thunder. Upon hearing the second blow, he wondered if it might be the police. Then, with the third blow, the police entered, ending all speculation. When the police seized the gun from where Mr. Smickle dropped it, they learned that it was cocked, with a bullet in the chamber. The Crown urges me to find that Mr. Smickle cocked the gun when he realized the police were at the door, that this represented a serious danger to the police officers present and that this is an aggravating factor in sentencing.

[ 19 ] There is no question that the police officers were faced with grave danger when they entered the apartment and found Mr. Smickle with a gun in his hand. However, I do not accept that the evidence supports any inference that Mr. Smickle cocked the gun himself because he believed the police were at the door. The whole thing was over in a matter of seconds. Mr. Smickle had his laptop computer in his right hand when the police entered. There was no evidence before me as to whether it is possible to cock a gun of this type with one hand. However, even if this were possible, Mr. Smickle would have had very little time to do so -- a second or less. Further, Mr. Smickle is right-handed and the gun was in his left hand. If he was truly intending to use it against the police, one would expect him to use his dominant hand. Finally, the conduct alleged is not consistent with the evidence of the police officers. They testified that Mr. Smickle had just begun to rise from the couch as they entered and that he immediately dropped both the gun and the computer. They were clear that the gun was never pointed towards them. I am satisfied on the evidence that Mr. Smickle never intended to use the gun as a weapon against the police and did not cock it in response to their being at the door.

[ 20 ] I find on the evidence that Mr. Smickle was posing with the gun in his non-dominant left hand, while using his laptop in his dominant right hand to take his own photograph. The [page34 ]sunglasses were a prop, designed to make Mr. Smickle look "cool". In my view, his use of the gun falls into the same category -- a prop for the photograph. There is no evidence, whether direct or circumstantial, upon which I would conclude that his connection to the gun went any further than that. (ii) Circumstances of the offender

[ 21 ] Leroy Smickle was born in Toronto in October 1981. He was 27 at the time of this offence. He has no criminal record. He graduated from grade 11 and has some grade 12 credits. He has been working to complete his high school diploma through online credits. He was employed full-time with a cleaning company at the time of his arrest. He had made preliminary inquiries into becoming a correctional worker, but was unable to proceed with that due to these outstanding charges.

[ 22 ] Mr. Smickle's father lives in Jamaica and he has no contact with him. He was raised by his mother and his maternal aunt, both of whom live in Toronto and are highly supportive of him.

[ 23 ] Mr. Smickle has a 13-year-old child with whom he has no contact and a four-year-old daughter with whom he apparently enjoys an excellent relationship. He has been in a serious relationship with Sonia Campbell for three years and they are engaged to be married. She is not the mother of either of his children.

[ 24 ] He does not appear to have had any prior problems with the law, apart from a Highway Traffic Act, R.S.O. 1990, c. H.8 conviction for speeding and driving while suspended for which he received a suspended sentence and probation.

[ 25 ] His pre-sentence report was quite positive. Its author found him to be a suitable candidate for community supervision with no recommended restrictions on his liberty other than that he attend school and/or maintain employment and report as required. C. The Legislative Scheme (i) Existing legislation

[ 26 ] The substantive offence of possession of a loaded prohibited firearm is set out in s. 95(1) of the Criminal Code. No exception is taken to this provision, which states:

95(1)... every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of [page35 ] (a) an authorization or a licence under which the person may possess the firearm in that place; and (b) the registration certificate for the firearm.

[ 27 ] The penalties for the s. 95(1) offence are set out in s. 95(2), which states:

95(2) Every person who commits an offence under subsection (1) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, three years, and (ii) in the case of a second or subsequent offence, five years; or (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding one year.

[ 28 ] Thus, under the current scheme, if the Crown proceeds summarily, the maximum sentence is one year in prison and there is no minimum. If the Crown proceeds by indictment, the maximum sentence is ten years and the minimum sentence is three years for the first offence and five years for a subsequent offence. Since the maximum sentence upon summary conviction is one year and the minimum sentence upon conviction on an indictment is three years, it is impossible to impose a sentence for anything between one and three years. The defence's Charter argument under s. 7 focuses on this two-year gap as being arbitrary and unjustifiable. The defence's Charter argument under s. 12 focuses on the three-year minimum sentence on indictment as being cruel and unusual punishment, both in respect of this offender and reasonable hypothetical situations that could arise. (ii) Legislative history

[ 29 ] The existing scheme came into force on May 1, 2008. [See Note 3 below] Prior to its enactment, the s. 95 offence of possession of a loaded restricted firearm existed, but with different penalties. This offence was first added to the Criminal Code in 1995, but did not come into force until December 1, 1998. [See Note 4 below] Before 1998, simple possession of such a firearm was an offence and a trial judge could consider the fact that the weapon was loaded to be an aggravating circumstance on sentencing, but there was no separate offence of possession of a loaded firearm. The 1998 [page36 ]amendment also created a hybrid offence for possession of a loaded weapon, but without a gap in the sentencing options between the two forms of the offence. The maximum sentence for a summary conviction offence was one year and there was no minimum (which provision remains unchanged in the current scheme). However, where the Crown proceeded by indictment, the 1998 legislative changes provided for a minimum sentence of one year and a maximum of ten years. Thus, the minimum sentence for the indictable offence picked up where the maximum sentence for the summary conviction offence left off, providing a full range of sentencing options between the two modes of the offence.

[ 30 ] The principal change in 2008 was to increase the previous minimum sentence for the indictable offence from one year to three years for a first offence. This change was initially introduced in s. 7 of Bill C-10, which received first reading in the House of Commons on May 4, 2006, followed by second reading and referral to the House of Commons Standing Committee on Justice and Human Rights on June 13, 2006. On February 21, 2007, after studying the proposed amendment and hearing from a broad range of experts, the Standing Committee recommended that s. 7 be deleted from the bill. When the bill came back before the House, that recommendation was not accepted. However, before final enactment, the prime minister prorogued Parliament and Bill C-10 died on the order paper before becoming law.

[ 31 ] The same proposed amendments were re-introduced in Bill C-2, which was presented to the Legislative Committee as a confidence measure in 2007. It passed third reading on November 28, 2007, received royal assent on February 8, 2008, and with that, the Tackling Violent Crime Act came into force on May 1, 2008.

[ 32 ] There appears to have been no consideration at any stage of this process as to the rationale for, or even the implications of, the two-year gap in the sentences available as between the summary conviction and indictment regimes. As was stated by Code J. in Nur, at para. 128:

There is nothing in the record of proceedings before Parliament to indicate that this two year "gap" was the result of some advertent decision or some rational policy, as opposed to mere oversight.

D. Section 12: Cruel and Unusual Punishment (i) The test

[ 33 ] Section 12 of the Charter provides that "[e]veryone has the right not to be subjected to cruel and unusual punishment." That right is enshrined in our Constitution [Constitution Act, 1982], [page37 ]which is declared to be the "supreme law of Canada" such that any law inconsistent with the Charter is "to the extent of the inconsistency, of no force and effect". [See Note 5 below]

[ 34 ] Mandatory minimum sentences have been the subject of Charter scrutiny in a number of cases, perhaps the most well- known being R. v. Smith, [See Note 6 below] in which the Supreme Court of Canada struck down a seven-year mandatory minimum sentence for importing a narcotic into Canada. In Smith and a number of Supreme Court cases that followed it (notably, R. v. Goltz, R. v. Morrisey and R. v. Ferguson [See Note 7 below]), the Supreme Court articulated the test for what constitutes cruel and unusual punishment and the process to be followed in conducting that analysis.

[ 35 ] The s. 12 analysis proceeds in two stages. First, the trial judge must consider whether the minimum sentence at issue constitutes cruel and unusual punishment based on the particular circumstances of the offender before the court. If not, the trial judge would then proceed to the second stage and consider whether the minimum sentence would be cruel and unusual in light of reasonable hypothetical circumstances that might arise. In Smith, the offender had imported seven and a half ounces of cocaine across the border from the United States into British Columbia. The focus of the court was not on whether the minimum sentence was cruel for this particular offender, but rather on the broad sweep of the provision that would require a seven-year sentence for a young person crossing the border with a single marijuana cigarette.

[ 36 ] Under the first stage of this analysis, the trial judge is required to consider what would be an appropriate sentence for the offender applying the general principles of sentencing mandated under the Criminal Code. That sentence must then be compared to the mandatory minimum imposed by the challenged legislation. It is only when the mandatory sentence would be "grossly disproportionate" for that offence and that offender that the s. 12 standard for cruel and unusual punishment is met. [See Note 8 below] [page38 ]

[ 37 ] Lamer J. held as follows, at p. 1072 S.C.R. of Smith:

The limitation at issue here is s. 12 of the Charter. In my view, the protection afforded by s. 12 governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed. I would agree with Laskin C.J. in Miller and Cockriell, supra, where he defined the phrase "cruel and unusual" as a "compendious expression of a norm". The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, "whether the punishment prescribed is so excessive as to outrage standards of decency". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate.

In imposing a sentence of imprisonment, the judge will assess the circumstances of the case in order to arrive at an appropriate sentence. The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate. (Emphasis added)

[ 38 ] The case law makes a clear distinction between the s. 12 standard of "gross disproportionality" and sentences that might be said to be "merely excessive" [See Note 9 below] or even "demonstrably unfit". [See Note 10 below] In Goltz, Gonthier J. (writing for the majority) noted that the test "is not one which is quick to invalidate sentences crafted by the legislators". [See Note 11 below] In other cases, the court described the test as being "stringent and demanding" [See Note 12 below] and as being met only on "rare and unique occasions". [See Note 13 below]

[ 39 ] In Smith, the Supreme Court identified four factors to be considered at the first stage of the analysis: (1) the gravity of the offence; (2) the personal characteristics of the offender; (3) the particular circumstances of the case; and (4) the actual effect of the punishment on the offender. [See Note 14 below] In Goltz, those principles were [page39 ]again endorsed and additional factors were also noted as follows, at p. 500 S.C.R.:

Although not in themselves decisive to a determination of gross disproportionality, other factors which may legitimately inform an assessment are whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognized sentencing principles, whether there exist valid alternatives to the punishment imposed, and to some extent whether a comparison with punishments imposed for other crimes in the same jurisdiction reveals great disproportion.

[ 40 ] At this stage, general deterrence and the purpose behind the impugned legislation, while not wholly irrelevant, are of limited value. Lamer J. cautioned in Smith, at p. 1073 S.C.R.:

The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves. If a grossly disproportionate sentence is "prescribed by law", then the purpose which it seeks to attain will fall to be assessed under s. 1. Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden to achieve some important societal objective.

[ 41 ] Similarly, in Morrisey, Gonthier J. (for the majority) held, at para. 45:

The presence or absence of any one sentencing principle should never be determinative at this stage of the analysis under s. 12. General deterrence cannot, on its own, prevent a punishment from being cruel and unusual. But it is still relevant when the court is considering a range of sentences that are all acceptable under s. 12. General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual. It could also possibly serve as a justification under s. 1 if it were ever necessary to justify a violation of s. 12, but that is not the case here.

[ 42 ] It is not entirely clear whether the "grossly disproportionate" test formulated in Smith was meant to create an objective standard for cruel and unusual punishment in place of a subjective test based on community values. Lamer J. reviewed the judicial history of the interpretation of "cruel and unusual punishment" under the Charter and the earlier Canadian Bill of Rights [See Note 15 below] in which the test applied tended towards whether the punishment was so excessive as to "outrage standards of decency". [See Note 16 below] He included in that review a reference to a 1978 [page40 ]article by Professor Tarnopolsky (as he then was) listing nine criteria applied by various courts in determining what makes a punishment "cruel and unusual". [See Note 17 below] Six of those criteria could be said to apply an objective test. However, the last three introduce the subjective element of community standards and principles of human dignity and decency. The nine criteria listed by Professor Tarnopolsky are: (1) Is the punishment such that it goes beyond what is necessary to achieve a legitimate penal aim? (2) Is it unnecessary because there are adequate alternatives? (3) Is it unacceptable to a large segment of the population? (4) Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards? (5) Is it arbitrarily imposed? (6) Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution? (7) Is it in accord with public standards of decency or propriety? (8) Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? (9) Is it unusually severe and hence degrading to human dignity and worth?

[ 43 ] Having reviewed this history, Lamer J. turned to the meaning of s. 12 of the Charter. He stated that the criterion which must be applied is "whether the punishment prescribed is so excessive as to outrage standards of decency", but then stated that what this means is that the punishment must not be "grossly disproportionate". Lamer J. then went on to enumerate the factors to be taken into account, all of which are objectively based. He held, at p. 1074 S.C.R.:

The numerous criteria proposed pursuant to s. 2(b) of the Canadian Bill of Rights and the Eighth Amendment of the American Constitution are, in my opinion, useful as factors to determine whether a violation of s. 12 has occurred. Thus, to refer to tests listed by Professor Tarnopolsky, the determination of whether the punishment is necessary to achieve a valid [page41 ]penal purpose, whether it is founded on recognized sentencing principles, and whether there exist valid alternatives to the punishment imposed, are all guidelines which, without being determinative in themselves, help to assess whether the punishment is grossly disproportionate.

[ 44 ] It is interesting that of the nine criteria noted by Professor Tarnopolsky, Lamer J. selected only those which import an objective assessment, rather than the "standards of decency" type of analysis that was largely featured in the early case law. This lends some support to the defence argument before me that Smith imposes an objective test for determining what is "cruel and unusual". It is also consistent with the views expressed by the Supreme Court in other cases, e.g., the difficulty in applying a subjective approach for determining the "moral position" of the community on the death penalty, [See Note 18 below] and for defining what constitutes "indecency" on a charge of keeping a common bawdy house for the practice of acts of indecency. [See Note 19 below] In those cases, the court has advocated an objective standard rather than undertaking an analysis of standards of tolerance in the community.

[ 45 ] Since Smith, there has been no case that has purported to change the test as established in Smith. However, in many of the subsequent cases, the subjective language of the older test can still be found. For example, in Morrisey, Gonthier J. wrote, at para. 26, " Section 12 of the Charter provides a broad protection to Canadians against punishment which is so excessive as to outrage our society's sense of decency." Similarly in Ferguson, [See Note 20 below] McLachlin C.J.C. defined the test, at para. 14, as follows:

The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045. As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable": R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84, at para. 4, citing Smith, at p. 1072, and Morrisey, at para. 26. The question thus becomes: is a four-year sentence of imprisonment grossly disproportionate to the offence of manslaughter as committed by Constable Ferguson? (Emphasis added)

[ 46 ] Likewise, in R. v. McDonald, [See Note 21 below] in which the Ontario Court of Appeal found that the four-year mandatory minimum [page42 ]sentence for robbery with a firearm was not cruel and unusual punishment, Rosenberg J.A. held, at para. 72:

I also have reservations about putting this relatively young man into a penitentiary setting. If it were open to this court to review the propriety of this sentence on the usual scale of appellate review as explained in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, I would find a three to four year sentence to be demonstrably unfit. However, that is not the same as gross disproportionality and I am not convinced that having regard to the objective gravity of any offence involving the use of a firearm, even an unloaded one, that a sentence approaching four years shocks the conscience. As La Forest J. wrote in R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309 at 344-45, the standard under s. 12 is not so exacting as to require the punishment to be "perfectly suited to accommodate the moral nuances of every crime and every offender." (Emphasis added)

[ 47 ] Notwithstanding these occasional references in the case law to community standards of decency and what would shock the public conscience, I remain of the view that the analysis of what constitutes cruel and unusual punishment is essentially an objective test. To the extent that community tolerance is part of that test, it can only be with reference to a community fully informed about the philosophy, principles and purposes of sentencing as set out in the Criminal Code, the rights enshrined in the Charter and the particular circumstances of the case before the court. This approach was recently applied to a s. 12 analysis by Green J. of the Ontario Court of Justice, as follows: [See Note 22 below]

The "reasonable person... properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the "case" may well view this result as grossly disproportionate -- particularly if it is understood that the penal disparity is neither idiosyncratic or even rare but, rather, the uniform, systematic and incorrigible consequence of legislation. A frisson of appreciation that the prejudicial distinction wrought by such legislation is also in some ways arbitrary could only contribute to a sense of public outrage or abhorrence, a palpable sensation of unfairness. While somatic metaphors abound in this area of the law, I do not believe that "reasonable persons" need, even metaphorically, to experience a visceral revulsion to meet that standard necessary to establish a constitutional breach. Indeed, the test for finding an "abuse of process", and consequently permanently terminating a prosecution, requires no greater metaphysical threshold to be cleared than that of concluding that "compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency": R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, at para. 25.

[ 48 ] This is similar to the approach taken to assessing whether detention of an accused without bail would be [at para. 3] "necessary... to maintain confidence in the administration of [page43 ]justice" [See Note 23 below] and determining under s. 24(2) of the Charter whether the admission of evidence obtained in breach of the Charter would tend to bring the administration of justice into disrepute. [See Note 24 below] In my opinion, that same approach must be applied in considering whether, in all the circumstances, a mandatory sentence applied to a particular offender in a particular case constitutes cruel and unusual punishment. (ii) The appropriate sentence in the absence of a mandatory minimum

General principles

[ 49 ] I turn then to consider what I would impose as an appropriate sentence for this offence and this offender if the legislation did not stipulate a mandatory minimum sentence. In this exercise, I must be mindful of the fundamental purposes and principles of sentencing as mandated by ss. 718, 718.1 and 718.2 of the Criminal Code. As a starting point, I must apply the overarching principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. That principle is set out in s. 718.1 of the Criminal Code and also reflects the first two factors identified in Smith as relevant at this stage of the analysis. I must also take into account any aggravating and mitigating factors, as required by s. 718.2(a) of the Criminal Code and the third factor noted in Smith. A sentence is required by s. 718.2 (b) to be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances", a factor consistent with one of the additional considerations mentioned by the Supreme Court in Goltz. Of particular relevance given the circumstances of this case are ss. 718.2 (d) and (e), which state:

718.2(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[ 50 ] In considering these factors, I must also bear in mind the purposes of sentencing, including specific and general deterrence, [page44 ]rehabilitation, denunciation and the need to separate the offender from society.

Gravity of the offence

[ 51 ] As a trial judge in Toronto, I am painfully aware, and am reminded almost daily, of the deadly scourge represented by handguns in our community. In 2007, in R. v. Ferrigon, I wrote: [See Note 25 below]

Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled -- a way of life that respects the rule of law to ensure the peace and safety of those who live here.

[ 52 ] I do not resile in any respect from what I said in that case. However, it must be noted that while the mere presence of handguns in our community is indeed a matter of grave concern, the offence created under s. 95(1) is not per se a crime of violence. Rather, the substantive offence is created by mere possession, regardless of the circumstances of that possession. Where the weapon is used in the commission of an offence, or is pointed at someone, or is carried in a car, or concealed on someone's person, specific other offences are committed for which there are separate sentencing regimes.

[ 53 ] In creating the hybrid offence with no minimum sentence on summary conviction, Parliament recognized that there will be circumstances in which possession of a loaded prohibited weapon will not require any term of imprisonment, and indeed could justifiably result in an absolute or conditional discharge.

[ 54 ] Possession of a loaded restricted or prohibited firearm is a serious matter. But, typically, it is the circumstances in which the gun is possessed, and what is done with the gun, that give rise to the more serious concerns affecting community safety. [page45 ]

Circumstances of the offender

[ 55 ] Mr. Smickle is a relatively youthful first-time offender, which is a significant mitigating factor. He is employed and has a close relationship with his young daughter. These are also circumstances which are mitigating and which would be adversely affected by a sentence of imprisonment.

[ 56 ] As soon as the police entered, Mr. Smickle followed their directions. He put the gun down, lay down on the floor himself and co-operated fully with the police.

[ 57 ] Mr. Smickle's conduct while on bail was exemplary. He completed some high school credits online. There is no indication that he has been involved in a life of crime. In that sense, rehabilitation is not a significant factor. Mr. Smickle is not a person who needs to be rehabilitated. However, keeping Mr. Smickle employed and attached to his family and community is the best chance of ensuring he stays on the right side of the law. Placing him in a federal penitentiary with seasoned criminals would be counterproductive for the purpose of rehabilitation and unnecessary for the purpose of specific deterrence.

[ 58 ] Mr. Smickle is guilty of colossally bad judgment. I might also question his sense of values if he believed posing with a gun would enhance the image he wished to project to his friends on Facebook. However, apart from this one lapse in judgment, he is not a criminal. He would clearly fall within the directives of s. 718.2 (d) and (e) as an offender for whom sanctions short of imprisonment would be reasonable, effective and appropriate.

[ 59 ] Often, a guilty plea is regarded as an indication of remorse and a mitigating factor on sentence. Mr. Smickle did not admit having possession of the gun and therefore does not get the benefit of that mitigating factor. However, that does not make it an aggravating factor. The reality of the situation facing Mr. Smickle must be recognized. An admission of guilt is unlikely when a youthful first-time offender is facing a mandatory minimum sentence of three years in a penitentiary. Since he would almost inevitably be sentenced at that minimum level upon conviction, there is simply no advantage to pleading guilty.

Circumstances of the offence

[ 60 ] Mr. Smickle was in possession of the gun at the crucial point in time, when the police entered the apartment. However, his possession was brief. He was not in his own home at the time of the possession and there is no indication that he owned the gun. Further, beyond the actual possession, there was no criminal intent in respect of the gun. There were no drugs found in [page46 ]conjunction with the gun, which is often referred to in the case law as a lethal combination. Mr. Smickle did not possess the gun in the presence of anybody else and did not endanger the public by carrying it about in the community. He clearly endangered himself by handling the gun as he did, and must have been perceived as a threat by the police when they first entered the apartment. Indeed, it is a tribute to their professionalism and self-restraint that nobody was hurt in this potentially volatile situation. However, the police raid obviously, and understandably, was not something that could have been anticipated by Mr. Smickle. He had no reason to believe his conduct would put anybody else in harm's way. Defence counsel aptly described the conduct underlying this offence as "adolescent preening". I agree. Although possession, even fleeting possession, of a loaded handgun is a dangerous activity, the circumstances of this case put it at the lowest end of the scale of conduct constituting the offence.

Parity in sentencing -- Similar sentences for similar situations

[ 61 ] Not surprisingly, I was not referred to any case on all fours with the unique circumstances of this case. It is useful, however, for purposes of comparison, to consider sentences given to other offenders prior to the enactment of the three- year mandatory minimum.

[ 62 ] In Nur, Code J. did a thorough review of the case law for the ten years between 1998 and 2008 dealing with the appropriate sentence for a first offence of possession of a loaded handgun. He concluded that, particularly since 2005, the range of sentence was between two years less a day and three years for cases involving accused persons who possessed handguns for some unlawful purpose and where the Crown decided to proceed by indictment. He noted [at para. 44] that the bottom end of that range was "generally reserved for youthful first offenders with good rehabilitative prospects who plead guilty, and the higher end of the range was generally reserved for offenders with prior records who proceed to trial". However, he also noted that departures from the "range" were appropriate where there are strong mitigating or aggravating factors or where there are rare or unusual circumstances taking the case outside the norm. [See Note 26 below]

[ 63 ] I agree with Code J. that in a typical case proceeding by indictment, the range of sentence for a youthful first-time [page47 ]offender would have been between two years less a day and three years, bearing in mind that the mandatory minimum during that time was one year.

[ 64 ] There are, of course, exceptions to that range, one of [the] most notable being R. v. Grant. [See Note 27 below] Mr. Grant was convicted at trial of possession of a loaded firearm. He was 18 years old at the time and had no criminal record. He was sentenced by the trial judge to 18 months for this offence, which was upheld by the Court of Appeal in 2006. Laskin J.A. held that the increase of six months above the one- year mandatory minimum was appropriate because the offender was carrying the weapon in the middle of the day on a public street near high schools that were experiencing problems with violence, and was in possession of marijuana at the same time. The case subsequently went to the Supreme Court of Canada, but sentencing was not an issue at that level. Mr. Smickle's situation is far less serious than that of Mr. Grant. He did not have the gun in public, did not have any drugs in conjunction with the gun and did not possess it for a purpose that was otherwise illegal. If Mr. Grant was appropriately sentenced at 18 months, Mr. Smickle should receive significantly less.

[ 65 ] However, regardless of whether the bottom end of the range is 18 months as opposed to two years less a day, the case before me is exceptional because of the nature and purpose of the possession. It therefore lies outside the normal range.

[ 66 ] Of the numerous sentencing cases I have reviewed, there are three that I consider to be most analogous to the one before me: R. v. Los, R. v. Canepa and R. v. Snobelen. [See Note 28 below]

[ 67 ] In 2008, Mr. Los was sentenced to 18 months for possession of a loaded restricted firearm, a sawed-off shotgun. He was 30 years old at the time of the offence and was the sole bread-winner for a family that included his spouse, two of her children and four children they had together. He did not plead guilty. He had a minor criminal record but it was from about ten years before this offence. The trial judge accepted his testimony that he had found the gun in a dumpster some years earlier and had kept it for self-protection because he lived with his family in a bad neighbourhood. On the date of the offence, there was a [page48 ]fracas of some sort in the neighbourhood and Mr. Los, believing some children were in danger of getting injured, grabbed his shotgun, loaded it and ran outside with it. He then fired the shotgun into the air in order to stop the fight and disperse the crowd. He was running through the courtyard of the building with the shotgun and ammunition when he was stopped by the police and arrested. The trial judge found that although Mr. Los may have been well- intentioned, taking the gun into a public area was a dangerous act and firing the gun was also an aggravating factor. She therefore felt that she could not sentence Mr. Los to the one-year minimum, and imposed a sentence of 18 months.

[ 68 ] Mr. Smickle's personal circumstances are at least as favourable as those of Mr. Los and the circumstances of his offence are considerably less serious, given the fact that he did not discharge the weapon and did not take it out in public. Therefore, an appropriate sentence for him, as compared to Mr. Los, would be less than 18 months.

[ 69 ] Mr. Snobelen was charged with possession of a Colt 22 semi-automatic handgun, together with accessible ammunition. After hearing Mr. Snobelen's explanation, the Crown elected to proceed summarily. Mr. Snobelen pleaded guilty and was given an absolute discharge. Mr. Snobelen was 53 years old at the time, a successful business man and public figure. He had previously been a Member of the Provincial Legislature, holding two cabinet posts. He first became the owner of the Colt 22 when he purchased a ranch in Oklahoma, together with all of its contents. He later sold the ranch, and employees and friends in Oklahoma packed up the contents and shipped then to Mr. Snobelen's home in Ontario. It was only upon unpacking the boxes that he realized the gun was there. He testified that he intended to turn the gun in, but neglected to do so. Instead, he kept it stored in his bedside table and in a drawer, together with ammunition, for a period of several months. His wife knew the gun was there. In 2004, when the couple was having marital difficulties, Mrs. Snobelen (although she had never been threatened with the gun) took it from the drawer and hid it in a vent at the house. Mr. Snobelen noticed that the gun was not in his drawer, but believed that his wife must have disposed of it. Mrs. Snobelen did nothing about the gun until January 2007, when she reported to the police where it was and they obtained a search warrant to seize it. Mr. Snobelen immediately provided this explanation to the police. He also turned in a rifle and a shotgun that he had acquired in the same manner. Numerous letters of reference were filed in his support and there was [page49 ]extensive testimony as to his good character and charitable work in the community.

[ 70 ] Mr. Smickle did not present the same kind of evidence of good character and charitable works in the community. However, he does not have the same stature and position of privilege enjoyed by Mr. Snobelen and cannot be expected to produce the same kind of testimonials. That said, there was some evidence of Mr. Smickle's general good character and certainly nothing negative in his background. Mr. Smickle also does not have the mitigating factor of an immediate full explanation to the police and a guilty plea. However, at least to some extent, the different circumstances of these two gentlemen may provide some explanation for that. Although Mr. Snobelen's possession may be seen as accidental, he actually owned the gun, and his possession of it continued for a far longer period of time than is involved in the case before me. In that sense, Mr. Smickle's blameworthiness would fall below that of Mr. Snobelen. It is difficult to compare the two cases. However, if it was appropriate for Mr. Snobelen to come through the process with no criminal record at all (and I do not question that it was an appropriate sentence), then principles of parity cannot support a three-year penitentiary term for Mr. Smickle. He may be deserving of an actual criminal sentence, as opposed to a discharge, but nothing close to three years can be justified.

[ 71 ] Finally, I have considered the circumstances of the Canepa case. Andrew Canepa was 18 years old at the time of the offence. Police attended at his apartment in response to a report about the smell of marijuana emanating from the apartment. Mr. Canepa allowed the police to enter, whereupon they saw marijuana on a table and placed him under arrest. In response to questions from the officers, Mr. Canepa directed them to an area under a table, where the police found a loaded restricted firearm, which Mr. Canepa admitted to owning. After his arrest, Mr. Canepa was released on bail under the supervision of his father, who was a well-regarded senior police officer in Toronto.

[ 72 ] Mr. Canepa had no prior criminal record. He had difficulties growing up. His parents split up when he was young and he was estranged from his father. His mother was an alcoholic and committed suicide when Andrew was only 16. During the two years before the matter reached this court, Mr. Canepa made significant strides to turn his life around. He had developed a strong relationship with his father, was receiving counselling from a psychologist, had completed some courses towards his high school diploma and had developed realistic career goals to become an electrician. [page50 ]

[ 73 ] When the matter came before Nordheimer J. of this court, Mr. Canepa pleaded guilty to simple possession of a firearm without legal authorization. There is no mandatory minimum for that offence. The Crown sought a sentence of nine to 12 months imprisonment. Nordheimer J. recognized that there were aggravating circumstances, including that Mr. Canepa owned the gun, that it was loaded and that he possessed it in conjunction with drugs. However, in light of the extenuating circumstances, Nordheimer J. held that an appropriate sentence would be one year and that it could be served conditionally in the community.

[ 74 ] Mr. Smickle does not have the benefit of being charged with a lesser offence than the one he actually committed. He also does not have the benefit of a guilty plea. However, the circumstances of his offence are far less serious than Mr. Canepa's offence. Mr. Smickle did not own the gun, it was not in his own apartment and he did not possess it in conjunction with drugs or for any other additional criminal purpose. Parity of sentencing would not justify a sentence in excess of that given to Mr. Canepa, even allowing for the guilty plea and the available lesser offence.

Conclusion: Appropriate sentence for Mr. Smickle

[ 75 ] Taking all of these factors into account, and ignoring the mandatory minimum for the purpose of this exercise, I find that the appropriate sentence for Mr. Smickle is one year. In the absence of full co-operation with the police, a clear expression of remorse and a guilty plea, I do not see this as an appropriate case for a discharge, and indeed defence counsel does not suggest that.

[ 76 ] The most significant factors supporting a sentence of this relatively short duration are the circumstances of the possession and the strong mitigating factors in Mr. Smickle's favour. I see no need for a stiffer sentence for purposes of deterrence or rehabilitation. Rather, I believe a more onerous sentence would more likely work against rehabilitation. Although denunciation and general deterrence typically play a primary role in sentencing for offences under s. 95(1), the circumstances of this offence are outside the norm and make these factors less important, in my view. I have, however, taken general deterrence and denunciation into account in reaching the one-year sentence. Indeed, but for those factors, the appropriate sentence for Mr. Smickle would be far less than one year. In my view, as I stated in my decision in Ferrigon and as is reflected in numerous other decisions in this jurisdiction including that of Code J. in Nur, the serious problem of illegal handguns in our community requires strong [page51 ]deterrent sentences. I am therefore of the view that a sentence of one year is warranted, even where the person in possession did not own the weapon and had no intention of using the weapon for any nefarious purpose.

[ 77 ] In Nur, Code J. held that in determining what the appropriate sentence would be at this stage of the s. 12 analysis, it is not proper to ignore the fact that prior to the enactment of the impugned legislation there was a one-year minimum sentence in place. I am not aware of any other case in which this issue has come up. Typically, when there has been a challenge to a mandatory minimum sentence, it has involved the initial imposition of the mandatory minimum and not merely an increase in a pre-existing mandatory minimum. The issue is therefore one of first impression. In my view, there is considerable merit to the defence position that this analysis should be undertaken without regard to the prior mandatory minimum, but simply taking all relevant factors into account, including the community climate at the time and the need for general deterrence. On the other hand, the sentences imposed during the relevant time period reflect the fact that there was a one-year minimum, with that minimum having created an "inflationary floor" against which all future sentences were calculated, as the Supreme Court noted in Morrisey. [See Note 29 below] Simply by taking into account sentences given to similar offenders in similar cases, the trial judge will in effect be incorporating the one-year minimum into the analysis.

[ 78 ] It is not necessary for me to resolve this issue for the purposes of my analysis. If I consider Mr. Smickle's situation in light of the one-year minimum, I would sentence him to that one-year minimum because of the unusual facts involved and the mitigating factors present. If I merely calculate what I would consider to be a fit sentence based on the relevant sentencing principles and purposes of sentencing, I also arrive at the one-year sentence. For purposes of this stage of the s. 12 analysis, I do not need to go further. In particular, it is not necessary for me to determine at this stage whether that one- year sentence should be served in a correctional facility rather than conditionally in the community. (iii) The mandatory minimum is cruel and unusual punishment

[ 79 ] Having concluded that a one-year sentence is appropriate for Mr. Smickle, I must now consider whether the imposition of [page52 ]the three-year sentence mandated by the Criminal Code would constitute cruel and unusual punishment within the meaning of s. 12 of the Charter. I find that it does.

[ 80 ] As summarized earlier, the case law is clear that the test for what is "cruel and unusual" is that the mandatory sentence would be "grossly disproportionate" for this offender and this offence. However, there is little guidance to be gleaned from those cases as to what "grossly disproportionate" means in a tangible sense, apart from the fact that it is something beyond harsh or demonstrably unfit. I have little trouble concluding that a three-year sentence for Mr. Smickle, in the absence of a mandatory requirement to impose it, would be properly described as "demonstrably unfit". The question is whether it goes beyond that point to become "grossly disproportionate".

[ 81 ] Clearly, the fact that the mandatory sentence would be 300 per cent greater than what is appropriate is an important factor in determining whether it is grossly disproportionate. Another relevant factor identified by the Supreme Court in Smith is the actual impact of a sentence on the offender, including not only the duration of the sentence, but its nature and the conditions under which it is applied. [See Note 30 below] Mr. Smickle is a first-time offender. Prior to this incident, his only brush with the law would appear to have been a ticket for speeding and driving while suspended. A three-year sentence would put Mr. Smickle directly into the federal penitentiary system, usually reserved for seasoned criminals. These would be harsh conditions for anyone, but even more so for an individual such as Mr. Smickle, who has no familiarity or experience with the penal system. He has a young child and a fiancée, and a supportive mother and aunt. These relationships would be jeopardized by such a lengthy term of imprisonment. His future job prospects would also be in jeopardy. To impose such onerous punishment would, in my view, be grossly disproportionate to what Mr. Smickle deserves for a single act of bad judgment and foolishness.

[ 82 ] A three-year sentence is not necessary to rehabilitate or deter Mr. Smickle, nor does it comply with recognized sentencing principles. On the contrary, it is inconsistent with many of the purposes and principles of sentencing, notably the goal of rehabilitation and the requirement that an individual not be deprived of his liberty if other sanctions are available which satisfy the other goals of sentencing. [page53 ]

[ 83 ] The only goal or principle of sentencing that would arguably be met by the imposition of this sentence would be denunciation and general deterrence. However, the case law is clear that general deterrence alone cannot justify the imposition of a sentence that is otherwise grossly disproportionate to what an offender deserves. [See Note 31 below] To take that principle to the extreme, a mandatory sentence of life imprisonment for shoplifting would no doubt act as a general deterrent, but it would shock the public conscience to impose such an onerous punishment, for example, on a young single mother with no criminal record who steals a loaf of bread from Walmart.

[ 84 ] In Nur, the offender was with a group of young men outside Driftwood Community Centre. Something was said by a member of the group (not necessarily involving Mr. Nur) to another young man that caused that young man to fear for his safety. He sought refuge in the centre, which was then locked down. The police were summoned. When the police arrived, Mr. Nur fled the scene. He had a loaded handgun hidden under his jacket. When it appeared that the police were catching up to him, he attempted to dispose of the gun by throwing it under a car parked in the parking lot of a residential housing complex. Although Mr. Nur was only 19 at the time of the offence and had no prior criminal record, the aggravating circumstances surrounding his possession of the weapon caused Code J. to determine that a fit sentence, absent the mandatory minimum, would have been two and a half years' imprisonment. In those circumstances, Code J. held that the mandatory minimum did not constitute cruel and unusual punishment for this particular offender.

[ 85 ] The next stage of the analysis in Nur was the consideration of reasonable hypothetical situations against which to apply the gross disproportionality test. That step is unnecessary in the case before me, given my findings in respect of Mr. Smickle. [See Note 32 below] However, the analysis in Nur is nevertheless instructive. Code J. posed a series of hypothetical circumstances sharing the common features that (1) they involve offenders of good character; (2) the act of possession is often quite brief; (3) there is no criminal purpose associated with the possession; and (4) the gun was lawfully possessed at some point either by the accused or some family member. I note that all but the fourth of those features apply to Mr. Smickle. The hypotheticals include a factual scenario based on the Snobelen case, and the following hypothetical that [page54 ]has substantial similarity to Mr. Smickle's circumstances, although being much more dangerous: [See Note 33 below]

A teenage son of a police officer takes out his father's gun at a party in their home, showing off to his friends and pretending to be a gangster. One of the friends takes digital photos of the event and posts them on the internet. Alarmed parents, whose children attended the party, call the police and the son is charged[.]

[ 86 ] Code J. apparently accepted that the imposition of a three-year sentence for any of the offenders in these hypotheticals would constitute cruel and unusual punishment, and notes that the Crown in that case did not argue strenuously to the contrary. Rather, the focus in Nur was on the Crown's contention that none of these hypothetical circumstances would arise because in each case the Crown would exercise its discretion to proceed summarily and there would be no mandatory minimum sentence. In the result, Code J. accepted that argument, holding that the hybrid nature of the offence was "a complete answer" to all of the reasonable hypotheticals [See Note 34 below] and that a breach of s. 12 of the Charter had therefore not been established. Before leaving the point, however, he sounded a note of warning, stating, at para. 117:

In conclusion on this branch of the Charter argument, I note that the Respondent's success in relying on Crown discretion and the statutory power to proceed summarily under s. 95, as a constitutional "safety valve" against s. 12 violations, is not without risks or costs. Crown elections to proceed summarily or by indictment are usually made at an early stage of proceedings, when the Crown is not always in possession of all the facts. If the Crown elects to proceed by indictment in a s. 95 case, based on incomplete knowledge of the facts, and a very different case later emerges at trial, a s. 12 Charter motion may well succeed at the sentencing stage of proceedings. This is the inevitable result of Ferguson, supra. Since constitutional exemptions are no longer available as a s. 24(1) response to a s. 12 motion, the only remedy at the first stage of analysis will be to resort to s. 52 and strike down the s. 95 mandatory minimum sentence, assuming it would be "grossly disproportionate" once the true facts of the case become known. In effect, one unwise Crown election may end up invalidating Parliament's s. 95 sentencing scheme for all cases.

[ 87 ] That is precisely the situation that has arisen in this case. I do not fault the Crown for proceeding by indictment in this case. At the time that decision was made, the Crown was not in possession of all of the facts necessary to inform that decision. The decision was made reasonably and in good faith and there is no basis to interfere with it. However, now that all of the facts [page55 ]are known, this case fits squarely into the type of case that should have been diverted into the summary conviction stream. I also do not fault Mr. Smickle or his counsel for failing to disclose the full situation to the Crown at an early stage. There is no duty of defence disclosure in this situation. Mr. Smickle is entitled to remain silent. He is also entitled to plead not guilty and put the Crown to its onus of proving the possession of the loaded gun beyond a reasonable doubt.

[ 88 ] The result, however, is that through nobody's fault, I am now in a position where I am required to impose a sentence that is grossly disproportionate to what is appropriate for Mr. Smickle in these circumstances. This outcome is dictated by the mandatory minimum in s. 95(2) of the Criminal Code. In other words, the legislation is requiring me to impose a sentence that constitutes cruel and unusual punishment and which therefore breaches s. 12 of the Charter.

[ 89 ] I have reached that conclusion applying the "grossly disproportionate" test as established in Smith, which, as I have already said, I consider to be an objective test. However, on the facts of this case, I would have reached the same conclusion if I had, instead, taken into account whether a three-year sentence would shock the public conscience. In my opinion, a reasonable person knowing the circumstances of this case, and the principles underlying both the Charter and the general sentencing provisions of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable. E. Section 7: Arbitrariness

[ 90 ] Mr. Smickle has also raised a constitutional issue as to the arbitrariness of the hybrid scheme for this offence and argues that because of the two-year gap between the sentences that can be imposed on summary conviction and on indictment, the scheme is arbitrary and breaches s. 7 of the Charter.

[ 91 ] As held by McLachlin C.J.C. and Major J. in Chaoulli v. Quebec (Attorney General), [See Note 35 below] at para. 129, "The state is not entitled to arbitrarily limit its citizens' rights to life, liberty and security of the person." If a law which engages the liberty interest embedded in s. 7 bears no relation to, or is inconsistent with, the objective that lies behind it, then the law is arbitrary and as such is contrary to the principles of fundamental justice. To [page56 ]restrict a person's liberty on the basis of such an arbitrary law is a violation of that person's rights under s. 7.

[ 92 ] This argument was also raised in Nur and was dealt with by Code J., at paras. 121-43 of his reasons. I am in full agreement with the analysis and conclusions of my colleague in Nur and do not propose to repeat that entire analysis here. Essentially, Code J. held that (1) there is no valid legislative purpose for the two-year gap in the sentencing scheme found in s. 95; (2) by eliminating the entire range of sentences between one year and three years, the effect of the legislation is to constrain the flexibility of the hybrid procedure and significantly limit Crown discretion, which hinders rather than helps the purpose of a hybrid scheme in the first place; (3) the two years eliminated are an important range of sentence for first offenders in less serious cases and will result in some cases in which an offender will get an unduly lenient sentence (if the Crown proceeds summarily) or an unduly harsh sentence (if the Crown proceeds by indictment); (4) the Crown argument that the purpose of the gap is to constrain Crown discretion and push more cases into the three-year mandatory sentence regime is irrational and not supported by any evidence that this was in fact the purpose. Further, it is not reasonable to presume that Parliament deliberately adopted a policy of imposing harsh and excessive sentences on a small group of cases falling within the low and mid-range of gravity; (5) the two-year gap runs the risk that the Crown will elect indictment in a situation where a three-year sentence would violate s. 12. This in effect emasculates the "safety valve" that the Crown discretion to proceed by summary conviction supposedly represents.

[ 93 ] Code J. concluded, at para. 131:

I am satisfied that the two year "gap" is inconsistent with the true legislative purposes that underlie s. 95. It severely restricts the flexibility of hybrid procedures, it will inevitably lead to unfit sentences in the low and mid- range of s. 95 cases, and it puts the three year mandatory minimum sentence, when proceeding by indictment, at constitutional risk. These are all irrational purposes and effects. There is simply no clear connection between the legislative goals of the 2008 reforms and the two year "gap" in the sentencing scheme. It appears to have been a mere legislative oversight, which Parliament would quickly have corrected by raising the summary conviction maximum sentence to three years, had the oversight been pointed out. [page57 ]

[ 94 ] In the result, Code J. did not strike down the legislation because of the s. 7 breach, but only because he found that Mr. Nur lacked standing to obtain that remedy. Given the circumstances of Mr. Nur's offence and the appropriate sentence for that offence, Code J. found that he did not fall within that "small class of accused who would reasonably have faced summary proceedings, but for the arbitrary two-year 'gap' in [ s. 95(2) (b)]." [See Note 36 below] However, he then held, at para. 142:

I should add that when a case does arise, where the Crown proceeds by indictment but reasonably would and should have proceeded summarily, but for the two-year "gap" in the sentencing regime, then the arbitrariness in s. 95(2) (b) will become inextricably linked to the mandatory minimum sentence in s. 95(2) (a). In that case, the accused can challenge the entire regime in s. 95(2), on both s. 12 and s. 7 grounds.

[ 95 ] Again, these words appear prophetic. Mr. Smickle does fall within that class of individuals who could reasonably have faced summary proceedings, even on the limited facts known to the Crown at an early stage. But for the one-year upper limit for sentencing in the summary proceeding, he could well have benefitted from the hybrid scheme and not have been subjected to the three-year mandatory minimum on indictment. He therefore has standing to challenge the scheme under s. 7 of the Charter.

[ 96 ] The findings as to the arbitrariness of the scheme made by Code J. in Nur were obiter in light of his finding on the standing issue. Strictly speaking, I am not obliged to follow his decision on this point. However, I find myself in complete agreement with his analysis. I therefore find that the mandatory minimum, when coupled with the one-year ceiling for summary conviction proceedings, is arbitrary and violates Mr. Smickle's rights under s. 7 of the Charter. F. Section 1: The Mandatory Minimum Cannot be Justified (i) General principles

[ 97 ] The applicant has established that the impugned legislation violates his rights under both ss. 12 and 7 of the Charter. The onus now shifts to the Crown to prove that the violation is demonstrably justifiable in a free and democratic society, as provided for in s. 1 of the Charter. The test is well established. The Crown must demonstrate that the offending provision addresses a pressing and substantial legislative objective, is rationally connected to that objective and minimally impairs the right in [page58 ]question. Also, there must be proportionality between the effects of the rights violation and the objective of the legislation -- the more severe the deleterious effects, the more important the objective must be. [See Note 37 below]

[ 98 ] With respect to the proportionality aspect of the Oakes test, it is also relevant to consider the extent to which the salutary effects underlying the legislative objective are actually realized. Where the salutary effects are speculative or minimal in their actual realization, those effects must be proportional to the deleterious impact of the rights violation. Proportionality between the importance of the objective and the deleterious effects will not necessarily be sufficient to meet the s. 1 test, particularly where the interference with rights is significant, and the actual benefits of the legislation are not. [See Note 38 below]

[ 99 ] In this case, the Crown has failed to establish that the legislation, despite its constitutional infringements, can be saved under s. 1 of the Charter. In fairness, although the Crown did not formally concede this point, it was not strongly pressed in either its written factum or oral argument.

[ 100 ] This is perhaps not surprising. In particular, it is difficult to see how the s. 7 breach, which is premised on a finding that the legislative scheme is arbitrary and irrational, could ever meet the Oakes rational connection test. The Supreme Court has commented similarly, stating that "violations of s. 7 are seldom salvageable by s. 1 ". [See Note 39 below]

[ 101 ] It is also difficult to see how inflicting cruel and unusual punishment on an individual can be justified based on an overall legislative objective of general deterrence. However, I will deal with this point in somewhat more detail. (ii) Pressing and substantial concern

[ 102 ] I have no difficulty accepting that the legislative objective of the legislation is to protect the public by controlling gun crime and violence in our society. There is no doubt that this is a pressing and substantial concern and of sufficient importance to warrant overriding constitutional rights such as freedom and [page59 ]liberty. Indeed, our entire Criminal Code can be said to fall within that same general governmental objective. (iii) Rational connection

[ 103 ] I do not propose to wade into the debate about whether there is a rational connection between mandatory minimum sentences and general deterrence. It is a complex subject upon which much has been written and much could be said. However, it was the subject of very little evidence or argument before me and is not essential to my conclusions. I therefore propose to say nothing about the rational connection test, but rather to focus on what I see as the most significant problems under s. 1: the failure of this legislation to meet either the minimal impairment or proportionality aspects of the Oakes test. (iv) Minimal impairment

[ 104 ] Mandatory sentences are not per se unconstitutional. That is well established in the case law. However, a difficulty arises when a mandatory sentence is imposed on an offence that can be committed in a wide variety of circumstances with significantly varying degrees of moral blameworthiness. One of the reasons the Supreme Court of Canada upheld the mandatory sentence for criminal negligence causing death with a firearm in Morrisey was that the offence itself is strictly defined, including the nature of the conduct and its consequences. Gonthier J. stated, at para. 1:

The offence of criminal negligence causing death requires proof of wanton and reckless disregard for the lives and safety of other people -- a high threshold to pass. This offence does not punish accidents. Nor does it punish the merely unfortunate. It punishes those who use firearms in a manner that represents a marked departure from the standard of care employed by a reasonable person, resulting in death. It is no trivial matter, and Parliament has treated it accordingly.

[ 105 ] The offence of simple possession of a loaded restricted firearm is not like that. Possession can be established in a myriad of ways and can arise in a myriad of circumstances, some of them deeply sinister, and others relatively innocuous, or even laudable (for example, a person who takes possession of a loaded weapon in order to prevent its use by someone else to commit a crime). Parliament recognized the need for some flexibility in sentencing by making this a hybrid offence with no minimum sentence if the Crown proceeds summarily. This is an implicit acknowledgment that there will be situations in which the full panoply of sentencing options should be available, including absolute and conditional discharges and conditional sentences.

[ 106 ] The Crown submits that the Crown discretion to proceed summarily is the safety valve that protects the constitutionality of s. 95(2) of the Criminal Code. I do not agree for the following three reasons. [page60 ]

[ 107 ] First, the Crown discretion existed in this case and was exercised appropriately on the facts known to the Crown at the time. There is very little scope for judicial review of an exercise of Crown discretion and no possibility of reversing a decision made in good faith and in the valid exercise of that discretion. [See Note 40 below] In this case, notwithstanding the supposed safety valve and the valid exercise of Crown discretion, I am faced with a legislative requirement to impose a sentence that would result in cruel and unusual punishment. In short, the safety valve does not always work, and did not work in this case.

[ 108 ] Second, the Crown discretion is severely restricted by the one-year maximum sentence on summary conviction and by the two-year sentencing gap between this one-year maximum and the three-year minimum on indictment. As I have already discussed, that scheme is arbitrary and creates a further breach of the Charter under s. 7. It therefore cannot be seen as saving the s. 12 breach.

[ 109 ] Third, the safety valve designed to save the legislation from breaching Charter rights cannot, in my view, rest properly with the Crown Attorney. It was argued in Smith that the Crown could avoid violating the Charter in situations where the seven-year minimum sentence would be grossly disproportionate by exercising its discretion to charge such individuals with a lesser offence. The Supreme Court rejected that argument, stating, at para. 68:

In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter. Therefore, to conclude, I find that the minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act infringes the rights guaranteed by s. 12 and, as such, is a prima facie violation of the Charter. Subject to the section's being salvaged under s. 1, the minimum must be declared of no force or effect. [page61 ]

[ 110 ] In this case, the suggested prosecutorial discretion safety valve would not entail charging somebody with a lesser offence than he has actually committed, although clearly that is one manner in which the Crown can sometimes avoid the harsh consequences of s. 95(2) (as was done, for example, in Canepa). However, in my view, the suggested safety valve with respect to electing to proceed summarily rather than by indictment is no less problematic. The Crown discretion is exercised at an early stage when all of the facts, particularly those favourable to the defence, are often not known. Often, the full facts will not be known until the trial judge delivers his or her reasons or the jury delivers a verdict. For example, an accused might be charged with multiple offences (such as possession of a loaded firearm, discharging the firearm and possession of drugs) thus warranting a decision to proceed by indictment, and yet be acquitted of everything except simple possession of the loaded weapon. The actual outcome of a trial cannot, by definition, be knowable until it is concluded.

[ 111 ] The Crown points to the Snobelen case as an example of the exercise of Crown discretion to prevent a violation of s. 12 of the Charter. Of course, this is cold comfort for Mr. Smickle, who was not the beneficiary of such a decision. Further, as the defence pointed out in argument, one does not need to alter the facts in Snobelen by much to create a very different outcome. What would happen if, for example, the spouse in that situation had not merely reported the gun to the police, but alleged that it had been used to threaten her? In the face of such an allegation, additional charges would no doubt have been laid, the subject matter would appear to be far more serious and the Crown would likely proceed by indictment. If the trial judge disbelieved the spouse's allegation about the threat, the situation of the accused would be exactly as it was in the actual Snobelen situation, a conviction for simple possession of the loaded firearm. Clearly, in that situation, the only person in a position to exercise the appropriate discretion would be the trial judge at the time of sentencing. However, under the current regime, once the case proceeded by indictment, the sentence imposed would have to be three years in a federal penitentiary, rather than the absolute discharge that the trial judge found to be appropriate.

[ 112 ] The defence argues that the current legislation cannot be saved under s. 1 of the Charter because it does not minimally impair the rights protected. The defence further argues that a residual discretion in the sentencing judge would provide the necessary safety valve required to save the provision from violating the rights of those for whom the three-year sentence would [page62 ]constitute cruel and unusual punishment. Such a limited discretion, it is argued, would impair the Charter right much less significantly than the existing legislation.

[ 113 ] The Crown argues that such a discretion would defeat the whole purpose of the legislation, which is to ensure stiffer sentences for possession of loaded weapons by taking away judicial discretion. The problem with the Crown's argument is that, regardless of its objective, the existing legislation breaches Charter rights. If it was possible to accomplish the objective of stiffer sentences without breaching the Charter, s. 1 of the Charter would require that route to be taken. In my opinion, it is possible to impose a presumptive sentence for possession of a loaded weapon, while still preserving a judicial discretion to be exercised in those rare circumstances where the presumptive sentence would be grossly disproportionate given the circumstances of the offender and the offence. In every case where such a judicial discretion is exercised, there would be a right of appeal, thus providing supervision of the proper use of the discretion. This would still further the objectives of the legislation without breaching the s. 12 right to be free from cruel and unusual punishment.

[ 114 ] This would be consistent with the approach taken in a number of other jurisdictions. For example, legislation in England and Wales contains a minimum sentence for certain firearms offences, but permits the court not to impose that minimum where there are exceptional circumstances. The residual discretion section provides: [See Note 41 below]

287(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its doing so.

[ 115 ] Similarly, in South Africa there are legislated mandated minimum sentences for a small number of offences, including murder, rape, robbery and serious economic crimes. However, the legislation reserves a discretion for the sentencing judge to impose a lesser sentence where there are "substantial and compelling circumstances". The relevant provision [See Note 42 below] states:

3(a) If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a [page63 ]lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceeding and must thereupon impose such lesser sentence[.]

[ 116 ] The South African Supreme Court of Appeal has interpreted the extent of this discretion in a manner striking similar to the language our courts have used in describing cruel and unusual punishment. In S. v. Malgas, [See Note 43 below] that court held:

If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the bench mark which the legislation has provided. (Emphasis added)

[ 117 ] In my opinion, it is possible to craft a sentencing provision for the offence of possession of a loaded weapon that advances the government's stated purpose of deterring crimes involving guns by increasing the severity of sentence for such crimes, while still vesting a residual discretion in the trial judge to prevent any Charter breach that might arise from the imposition of a mandatory sentence on absolutely every offender who meets the definition of the crime regardless of the circumstances. It is impossible to imagine or predict the variety of circumstances that might arise. The possibilities are endless and exceed the human imagination. This is not a "one-size-fits-all" type of offence. Therefore, some flexibility is required to deal with those exceptional circumstances where the imposition of a mandatory minimum sentence would run afoul of the Charter. The existing legislation is cast too broadly to prevent such abuse and does not meet the minimal impairment test provided for in Oakes. (v) Proportionality

[ 118 ] The current legislation also fails to meet the proportionality requirement established in Oakes.

[ 119 ] In assessing proportionality in this case, it is not sufficient to cite the broad objective of public safety and then balance the deprivation of liberty for those found in possession of loaded handguns against the salutary effect of saving innocent lives. [page64 ]This is a salutary effect that is drawn too broadly and the success of which is virtually incapable of objective measurement. Where the Charter infringement can clearly be seen to accomplish the legislative objective, it is appropriate to consider the proportionality of that objective as against the deleterious effects of the legislation on those adversely affected by it. However, where the connection between the actual success of the measure and its stated objective is more tenuous, it is more appropriate to balance the salutary effects as against the deleterious effects. The Supreme Court of Canada expressed that principle in Dagenais, as follows, at pp. 887-89 S.C.R.:

If the actual beneficial effects of publication bans are limited, then it might well be argued in some cases that the negative impact the ban has on freedom of expression outweighs its useful effects. The analysis that is required at this stage of the application of the common law rule is very similar to the third part of the second branch of the analysis required under s. 1 of the Charter, as set out by this Court in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. As Dickson C.J. stated in Oakes (at p. 140), "[e]ven if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve". In many instances, the imposition of a measure will result in the full, or nearly full, realization of the legislative objective. In these situations, the third step of the proportionality test calls for an examination of the balance that has been struck between the objective in question and the deleterious effects on constitutionally protected rights arising from the means that have been employed to achieve this objective. At other times, however, the measure at issue, while rationally connected to an important objective, will result in only the partial achievement of this object. In such cases, I believe that the third step of the second branch of the Oakes test requires both that the underlying objective of a measure and the salutary effects that actually result from its implementation be proportional to the deleterious effects the measure has on fundamental rights and freedoms. A legislative objective may be pressing and substantial, the means chosen may be rationally connected to that objective, and less rights-impairing alternatives may not be available......

In my view, characterizing the third part of the second branch of the Oakes test as being concerned solely with the balance between the objective and the deleterious effects of a measure rests on too narrow a conception of proportionality. I believe that even if an objective is of sufficient importance, the first two elements of the proportionality test are satisfied, and the deleterious effects are proportional to the objectives, it is still possible that, because of a lack of proportionality between the deleterious effects and the salutary effects, a measure will not be reasonable and demonstrably justified in a free and democratic society. I would, therefore, rephrase the third part of the Oakes test as follows: there must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures. (Emphasis added) [page65 ]

[ 120 ] Here, it is impossible to take issue with the broad objectives of the mandatory minimum sentence; every reasonable person would support reducing violent crime and protecting the public. However, there is no tangible evidence that imposing a mandatory minimum does anything to actually accomplish that objective. One might hope that would be the case, but proving it is a far different matter. Clearly, making possession of a handgun a crime and subject to the criminal justice system creates a deterrent effect. But what does the three-year mandatory minimum sentence do to enhance that effect?

[ 121 ] When evidence of a salutary effect is this limited, it is more difficult to find a serious infringement of the Charter to be proportional. This is particularly the case where the deleterious effects of that infringement are significant. In this case, the breaches of ss. 7 and 12 are serious. Further, the most obvious deleterious effect, the imposition of a three- year penitentiary term on a person who does not deserve it, is a significant deprivation of liberty and a severe deleterious effect. In my view, this deleterious effect is sufficiently strong that it outweighs any salutary effect there might be. Further, there are other deleterious effects of the mandatory minimum regime, including (1) the sentence inflation for persons who, although not deserving a sentence of less than a one-year sentence, must now receive at least three years; (2) the danger of increased recidivism by incarcerating youthful first-offenders for extended periods of time with hardened criminals; (3) contributing to the over-crowded conditions in our correctional facilities; (4) the systemic disincentive for guilty pleas and early resolutions if the minimum sentence will be three years in prison for any offender charged with the indictable offence; and (5) as the Supreme Court noted in Smith, [See Note 44 below] the unfair advantage given to the Crown as an accused will be under pressure to plead guilty to a lesser included offence in order to avoid the risk of the mandatory minimum.

[ 122 ] In coming to this conclusion, I have applied the modified Oakes test for proportionality as developed in Dagenais. However, even on the application of the classic proportionality test from Oakes, the impugned legislation does not pass muster because of the severity of the deleterious effects. [See Note 45 below] Indeed, given the fact that the provision is both arbitrary and constitutes cruel and unusual punishment, it would be exceedingly difficult to justify [page66 ]it as proportional when balanced with such a broad legislative objective.

[ 123 ] Accordingly, I find that s. 95(2) of the Criminal Code breaches the Charter and that the infringement is not saved by s. 1. G. Remedy (i) Introduction

[ 124 ] The principal issue to be determined is whether the appropriate remedy in this case lies under s. 24(1) of the Charter or s. 52 of the Constitution Act, 1982.

[ 125 ] Section 52 of the Constitution Act, 1982 (the "Constitution Act") states:

52(1) The Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[ 126 ] Section 24(1) of the Charter provides:

24(1) Anyone whose rights and freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[ 127 ] The defence submits that the appropriate remedy in this case is a declaration under s. 52 that s. 95(2) is unconstitutional and of no force or effect.

[ 128 ] The Crown submits that if I find a breach of the Charter, the appropriate remedy lies under s. 24, either in the form of mandamus or a reduction of sentence.

[ 129 ] In my view, the remedies suggested by the Crown are either unworkable or unavailable or both. The appropriate remedy is a declaration under s. 52. I consider the Supreme Court of Canada's decision in R. v. Ferguson [See Note 46 below] to have conclusively determined this issue. (ii) The decision in Ferguson

[ 130 ] In Ferguson, the accused was a police officer who fatally shot a person being held in custody at an RCMP detachment. The jury convicted him of manslaughter with a firearm, the mandatory minimum sentence for which was four years' imprisonment. The trial judge determined that the imposition of such a sentence would constitute cruel and unusual punishment. [page67 ]However, rather than striking down the legislation, he granted the accused a constitutional exemption and sentenced him to a conditional sentence of two years less a day [[2004] A.J. No. 1535, 2004 ABQB 928 ]. This was reversed by the Alberta Court of Appeal [[2006] A.J. No. 1150, 2006 ABCA 261 ], whose decision was upheld on further appeal to the Supreme Court of Canada.

[ 131 ] The Supreme Court of Canada held that the trial judge erred in concluding the four-year minimum sentence constituted cruel and unusual punishment in all of the circumstances. That would have been enough to determine the appeal. However, in a unanimous decision authored by the Chief Justice, the court made a particular point of dealing with the issue of remedy, noting that there had been considerable debate and disagreement in the lower courts on the issue and stating that "it is appropriate to settle the question of whether a constitutional exemption would have been available" if there had been a s. 12 violation. [See Note 47 below]

[ 132 ] The Supreme Court held that where a mandatory sentence is found to constitute cruel and unusual punishment contrary to s. 12 of the Charter, the appropriate remedy is a finding of invalidity under s. 52(1) of the Constitution Act, 1982. Ferguson is direct and unequivocal on this issue. In coming to that conclusion, the Supreme Court considered, and rejected, the advantages of a s. 24 remedy. McLachlin C.J.C. rested her conclusion on four considerations: (1) the jurisprudence (which although not conclusive weighed against constitutional exemptions); (2) the need to avoid intruding on the role of Parliament (the rationale being that Parliament's purpose was to eliminate judicial discretion, and constitutional exemptions on a piece-meal basis would defeat that purpose); (3) the remedial scheme of the Charter (which contemplates the use of a s. 24 remedy for unconstitutional acts committed by government actors as opposed to s. 52 [of the Constitution Act] which applies to a law which is itself an infringement of the Charter right); and (4) the rule of law (which favours certainty and predictability). [See Note 48 below] [page68 ]

[ 133 ] On the issue of the remedial scheme of the Charter, the court held [at para. 35] that s. 24(1) provides a "case-by-case remedy for unconstitutional acts of government agents operating under lawful schemes whose constitutionality is not challenged". This was contrasted to s. 52, which [at para. 35] "confers no discretion on judges", but rather simply provides that a law inconsistent with the Charter is of no force and effect.

[ 134 ] In the result, the court held that the only appropriate remedy for a mandatory minimum sentence that constitutes cruel and unusual punishment is under s. 52. The Chief Justice held, at para. 74:

I conclude that constitutional exemptions should not be recognized as a remedy for cruel and unusual punishment imposed by a law prescribing a minimum sentence. If a law providing for a mandatory minimum sentence is found to violate the Charter, it should be declared inconsistent with the Charter and hence of no force and effect under s. 52 of the Constitution Act, 1982. (iii) Reduction in sentence is not an available remedy

[ 135 ] The Crown in the case before me submits that if the mandatory sentence results in cruel and unusual punishment for Mr. Smickle, an appropriate remedy would be a reduction in sentence under s. 24 of the Charter. I do not agree. Where a mandatory sentence is required by legislation, imposing a lesser sentence is a constitutional exemption. Calling it a "sentence reduction" does not avoid the clear direction of the Supreme Court of Canada in Ferguson.

[ 136 ] The question, then, is whether there is some basis upon which to distinguish the situation before the court in Ferguson from the case before me. I do not think so. The Crown relies upon para. 57 of Ferguson, which states:

I conclude that these considerations are sufficient to exclude constitutional exemptions as an appropriate remedy for unconstitutional mandatory minimum sentences. In the absence of any provision providing for discretion, a court that concludes that a mandatory minimum sentence imposes cruel and unusual punishment in an exceptional case before it is compelled to declare the provision invalid. (Emphasis added)

[ 137 ] The Crown argues that the clause "in the absence of any provision providing for discretion" demonstrates that the prohibition in Ferguson against granting a constitutional exemption is not absolute. The Crown then argues that the Crown discretion to proceed summarily, thereby avoiding the mandatory sentence, takes this particular provision outside the parameters contemplated by Ferguson. I do not agree. Obviously, if the [page69 ]Crown proceeds summarily, the issue of the mandatory minimum simply does not arise. However, here the Crown proceeded by indictment. After that election and trial, and upon a finding of guilt, there is no discretion -- the trial judge is given no discretion and whatever discretion the Crown had at an earlier stage has already been expended. The minimum sentence is three years. There is no discretion not to impose it, no matter what the circumstances. That is precisely what the Supreme Court was referring to in Ferguson. It is the absence of any discretion in the legislation that results in the requirement that I impose a sentence I consider to be cruel and unusual punishment. The Supreme Court has been very clear that in this situation, I must not simply exempt Mr. Smickle from the operation of the legislation, I must declare the provision to be invalid.

[ 138 ] The Crown seeks to bring this case within the s. 24 remedy regime by arguing that it is not the legislation that creates the Charter violation in this case, but rather the Crown's election to proceed by way of indictment.

[ 139 ] Again, I disagree. The Crown's discretion was validly exercised based on the facts as known to the Crown at that time. There was nothing unconstitutional, or even improper, about the exercise of the Crown's discretion and no basis for awarding a remedy based on the Crown's conduct. It is the legislation itself that imposes the cruel and unusual punishment in this case, not anything that was done by the Crown Attorney.

[ 140 ] The Crown relies upon the recent decision of the Supreme Court of Canada in Canada (Attorney General) v. PHS Community Services Society. [See Note 49 below] That case involved a safe-injection facility (known as Insite) which provided services to intravenous drug users in Vancouver. The clinic was able to operate without violating federal drug- control legislation because of an exemption granted by the Minister of Health, which exemptions were specifically provided for in the legislation where in the opinion of the Minister it "is necessary for a medical or scientific purpose or is otherwise in the public interest". [See Note 50 below] Although Insite's initial exemption was renewed for a number of years, in 2008 the Minister refused to provide the exemption renewal. The Supreme Court of Canada held that the Minister's rejection of the exemption request violated s. 7 of the Charter. The court further ruled that it was not the legislation itself that [page70 ]created the constitutional problem, but rather the failure of the Minister to grant the exemption and that the appropriate remedy was therefore under s. 24, rather than a declaration of invalidity under s. 52. The court, citing Ferguson, noted that constitutional exemptions are to be avoided.

[ 141 ] In oral argument before me, all counsel acknowledged that there is no suggestion here of any impropriety or unfairness by the Crown in its decision to proceed by way of indictment. In my opinion, there is no basis in law for interfering with the exercise of that discretion. Crown counsel argued that the difficulty arose here because in our judicial system the Crown's decision is exercised at a time when the Crown typically is not fully aware of the facts. Therefore, he submitted, any unconstitutionality that arises is not a necessary consequence of the legislation, but rather is a consequence of our trial process or the judicial system in which we operate. I agree that the Crown's discretion is often exercised in a factual vacuum, which creates a problem down the line. However, I do not agree that this means that the unconstitutionality of the result for Mr. Smickle, and others like him, arises from state action or from the trial process itself. The legislation is enacted with full knowledge of the judicial system and trial processes in which it operates. The legislation recognizes that some discretion is appropriate to deal with exceptional cases. It is the legislation that places that discretion at a point in the process where the full facts are seldom known by the party exercising the discretion. It is therefore the legislation itself that creates the problem, not the person exercising the discretion early in the process.

[ 142 ] I recognize that a reduction in sentence may be the appropriate remedy for a breach of the Charter by a state actor. In a typical case, that would not enable the sentencing judge to impose a sentence that is less than the minimum mandated by statute. In R. v. Nasogaluak, [See Note 51 below] the Supreme Court affirmed this general principle, while stating that it would not foreclose the possibility of a sentence reduction remedy in exceptional cases outside statutory limits. The court stipulated that this would arise only if it would be "the sole effective remedy for some particularly egregious form of misconduct by state agents". [See Note 52 below] The court also stated, at para. 64, "In that case, the validity of the law would not be at stake, the sole concern being the specific conduct of those state agents". In my opinion, those principles do [page71 ]not apply here because there was no misconduct by state actors. Rather, it is the legislation itself that is at issue.

[ 143 ] For these reasons, I reject the argument that it is state action that gives rise to a remedy in this case. In my view, it is the legislation itself that caused the conflict with s. 12 of the Charter and with s. 7 of the Charter. Therefore, in line with the decision in Ferguson, the appropriate remedy does not lie under s. 24(1), but rather under s. 52 [of the Constitution Act]. (iv) Mandamus is not workable and not available

[ 144 ] Alternatively, the Crown argues that an appropriate remedy in this case would be an order in the nature of mandamus directing the Crown to exercise its discretion to proceed summarily in this case, rather than by indictment. Mandamus directing the Minister to issue an exemption was the remedy granted by the court in the Insite case (PHS Community Services). For the reasons I have already discussed, that case has no application here. The problem here is not the action taken by the Crown, but rather the legislative scheme itself.

[ 145 ] In any event, mandamus requiring the Crown to exercise its discretion in a particular way is simply not a workable remedy here. That ship has sailed. The Crown has already exercised its discretion to proceed by indictment. The trial is over. A conviction has been entered. It is too late now to do the whole thing over again as a summary conviction trial, even if I had jurisdiction to make such an order, which in my view I do not.

[ 146 ] On the jurisdictional issue, the Crown relies on the Newfoundland Court of Appeal decision in R. v. Minot, [See Note 53 below] and in particular on the ruling that [at para. 44] "jurisdiction is grounded by the offence's hybrid nature, which makes it punishable by indictment". The Crown acknowledges that the superior court has no jurisdiction to try pure summary conviction offences. However, the Crown argues, on the strength of Minot, that in the case of a hybrid offence, where the Crown starts by indictment, but then re-elects to proceed summarily, the superior court retains jurisdiction. No other authority is cited for this proposition, and I know of none.

[ 147 ] Minot is of no assistance whatsoever on the point. In Minot, the accused was charged with various offences under the Aeronautics Act, R.S.C. 1985, c. A-2 and the Criminal Code as a result of his misbehaviour on an aircraft while in flight. All of the offences with which he was charged were hybrid offences [page72 ]and the Crown elected to proceed summarily. He was convicted at trial and appealed. On appeal, Mr. Minot relied on a provision in the legislation stating that courts in Canada have jurisdiction over offences committed in flight outside Canada only if they are [at para. 41] "offences punishable by indictment in Canada". He argued that the court lost jurisdiction when the Crown elected to proceed summarily. The Court of Appeal rejected that argument, ruling that because the offence itself was a hybrid it was "punishable by indictment" and that the Crown's election to proceed summarily was of no consequence to the court's jurisdiction.

[ 148 ] The decision in Minot says nothing at all about the jurisdiction of the superior court to conduct a trial where the Crown election is to proceed summarily. Even if the Crown made such a re-election prior to the conclusion of the trial in the superior court, I fail to see how Minot has any application. However, there is no authority whatsoever for the proposition that after the completion of the trial in the superior court, the Crown can re-elect to proceed summarily, thereby giving the superior court jurisdiction normally vested only in the provincial court.

[ 149 ] I therefore conclude that the remedy of mandamus is not appropriate. (v) Declaration of invalidity

[ 150 ] I am required by a legislative provision to impose a sentence I have found to be cruel and unusual punishment in violation of s. 12 of the Charter. I have also found that the scheme of the legislation in question is arbitrary and a violation of Mr. Smickle's rights under s. 7 of the Charter. The provision cannot be saved under s. 1 of the Charter. The plain language of s. 52 means that the legislative provisions inconsistent with the Charter are of no force or effect to the extent of the inconsistency. In my opinion, I am bound by Ferguson. The proper remedy is a declaration of invalidity. Accordingly, a declaration shall issue that the reference to "a minimum sentence of imprisonment of, in the case of a first offence, three years" as set out in s. 95(2) (a) of the Criminal Code is of no force or effect.

[ 151 ] I see no reason why this decision should not take effect immediately. In Schachter v. Canada, [See Note 54 below] the Supreme Court considered the appropriateness of suspending a declaration of constitutional invalidity of impugned legislation. Lamer C.J.C. noted, at p. 716 S.C.R., that to delay the declaration "is a serious matter". A suspended declaration allows for a Charter-violating [page73 ]state of affairs to persist. Lamer C.J.C. provided guidelines as to when a suspension will be warranted: (A) striking down the legislation without enacting something in its place would pose a danger to the public; (B) striking down the legislation without enacting something in its place would threaten the rule of law; or (C) the legislation was deemed unconstitutional because of underinclusiveness rather than overbreadth, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rights have been violated. None of these factors support a suspension of the finding of invalidity. The underlying offence will still exist and the same maximum penalty will apply for those convicted of it. There is therefore no danger to the public or interference with the rule of law. Judges will simply sentence individuals convicted of this offence in accordance with the sentencing principles set out in the Criminal Code and judicial precedent. However, if a suspension is ordered, there is a real risk that individuals will be subjected to the arbitrariness of the scheme and/or cruel and unusual punishment during the period of suspension. That is inconsistent with Charter values and with the principles established in Schachter. Accordingly, in my view, it is not appropriate to suspend the operation of my ruling. The declaration of invalidity shall have immediate effect. H. Appropriate Sentence

[ 152 ] As a result of s. 52 of the Constitution Act, 1982, I will sentence Mr. Smickle for this offence based on a maximum punishment of ten years and no minimum sentence. As I have already indicated, I consider a sentence of one year to be appropriate in all of the circumstances.

[ 153 ] Because this sentence is less than two years, I am required by s. 742.1 of the Criminal Code to consider the suitability of a conditional sentence. Once the mandatory minimum for this offence is removed, there is no barrier to imposing a conditional sentence. Before imposing such a sentence, however, I must be "satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 ". [page74 ]

[ 154 ] I see no danger to the community from Mr. Smickle. In Proulx, [See Note 55 below] the Supreme Court of Canada made it clear that there is no category of offence, other than those with a minimum term of imprisonment, that are excluded from the conditional sentence regime. The court held that in assessing community safety, the sentencing judge must consider the risk of the offender re-offending and the gravity of the damage that would ensue from a further offence. In my opinion, there is very little risk that Mr. Smickle would ever re-offend. Further, since his possession of the weapon in this case was not connected to any other criminal purpose, if he did re- offend by having a gun, there is no reason to believe he would use it to perpetrate other crimes or to injure anybody. I therefore find that the community safety precondition for a conditional sentence is met.

[ 155 ] A conditional sentence would uphold the general principle of sentencing that the punishment imposed in any given case should be one that is the least restrictive of the person's liberty, while still reflecting the other goals and principles of sentencing. In my view, the goals of general deterrence and denunciation are sufficiently met by the length of this sentence, which is onerous for the type of conduct actually involved. It is not necessary for those purposes to further require that the sentence be served in a correctional facility rather than conditionally in the community. I have already noted that specific deterrence is not a significant factor here. I do not see Mr. Smickle as at risk to re-offend. What is significant, however, is the principle of rehabilitation, or perhaps more correctly, keeping Mr. Smickle out of trouble in the future. I consider a prison sentence to be counterproductive for this purpose. Mr. Smickle has commitments to family and his fiancée and he is employed. His future prospects as a contributing member of our community are enhanced if he continues in those relationships, continues to be employed and, ideally, also continues to upgrade his education. All of those positive outcomes would be jeopardized by sending Mr. Smickle to jail.

[ 156 ] Nordheimer J. faced a similar situation in Canepa. He imposed a one-year conditional sentence, stating as follows:

I accept that denunciation and deterrence are important sentencing objectives in this case. The question is whether it is necessary to impose a term of imprisonment as the only route to achieving those objectives. I am aware that some may hold the view that imprisonment is the only effective way of expressing denunciation and achieving deterrence. [page75 ]That view, however, ignores the observations made by Chief Justice Lamer in the seminal case on conditional sentences namely R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 in which the Supreme Court of Canada held that conditional sentences can achieve both of those objectives.

In addition, however, denunciation and deterrence are not the only objectives of sentencing. Another objective is rehabilitation. While people convicted of offences must be appropriately punished, the imposition of a punishment that inhibits or detracts from a person's ability to recover from the mistakes that they have made does not promote the long term interests either of the person or of our society.

[ 157 ] I am satisfied that a conditional sentence is appropriate in this case. I am satisfied that imposing a conditional sentence would not endanger the safety of the community. I am also satisfied that a conditional sentence would be consistent with the fundamental principles and purposes of sentencing in the Criminal Code.

[ 158 ] Mr. Smickle was in custody from March 9 to April 6, 2009, a period of 29 days, for which he is entitled to the usual 2:1 credit, for a total credit of 58 days.

[ 159 ] From April 6, 2009 to June 10, 2010, Mr. Smickle was under bail conditions that included a strict house arrest, except that he was permitted to work. From June 10, 2010 to May 12, 2011, the house arrest condition was modified to substitute a 10:00 p.m. curfew. Under the principles set down by the Ontario Court of Appeal in R. v. Downes, [See Note 56 below] I believe Mr. Smickle is entitled to a further credit for the restriction on his liberty while on bail. I consider an appropriate credit for that time would be in the neighbourhood of three months.

[ 160 ] Mr. Smickle was convicted of this offence on May 12, 2011. The prospect of a constitutional challenge to the mandatory minimum sentence was not raised at that time. Because of the mandatory three-year sentence, I revoked Mr. Smickle's bail and he went into custody pending sentencing. Once the possibility of a non-custodial sentence was raised, I re- instituted Mr. Smickle's bail. However, he had, in the meantime, served 69 days, for which he is also entitled to credit, but on a straight 1:1 basis.

[ 161 ] Taking all three of these periods of time into account, I am allowing a total credit of seven months against the one- year sentence, leaving five months to be served. The statutory conditions shall apply. If other conditions are sought, counsel may address the issue before me at the return date on February 13, 2012. [page76 ] I. Conclusion

[ 162 ] A declaration shall issue that the reference to a minimum punishment of imprisonment for a term of, "in the case of a first offence, three years" as set out in s. 95(2) (a)(i) of the Criminal Code is inconsistent with the Charter and of no force or effect.

[ 163 ] On count 1, Leroy Smickle is sentenced to a term of five months (after credit of seven months for time served and time spent on bail), to be served conditionally in the community, subject to the statutory conditions and any further conditions I may impose after hearing further submissions on February 13, 2012.

[ 164 ] All other counts are duplicative and are stayed pursuant to the principles in R. v. Kienapple. [See Note 57 below]

Application granted.

Notes

Note 1: R. v. Nur, [2011] O.J. No. 3878, 2011 ONSC 4874.

Note 2: R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368, [1982] S.C.J. No. 71, 68 C.C.C. (2d) 477.

Note 3: Tackling Violent Crime Act, S.C. 2008, c. 6, s. 8.

Note 4: Firearms Act, S.C. 1995, c. 39, s. 139.

Note 5: The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52(1).

Note 6: R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36.

Note 7: R. v. Goltz, 1991 51 (SCC), [1991] 3 S.C.R. 485, [1991] S.C.J. No. 90; R. v. Morrisey, [2000] 2 S.C.R. 90, [2000] S.C.J. No. 39, 2000 SCC 39; R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6.

Note 8: See Smith, supra, at p. 1072 S.C.R.

Note 9: Smith, supra, at p. 1072 S.C.R.

Note 10: R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990, 127 C.C.C. (3d) 57 (C.A.), at para. 72.

Note 11: Goltz, supra, at p. 501 S.C.R.

Note 12: Steele v. Mountain Institution, 1990 50 (SCC), [1990] 2 S.C.R. 1385, [1990] S.C.J. No. 111, at p. 1417 S.C.R.

Note 13: R. v. Latimer, [2001] 1 S.C.R. 3, [2001] S.C.J. No. 1, 2001 SCC 1, at para. 76.

Note 14: Smith, supra, at pp. 1073-74 S.C.R.

Note 15: Canadian Bill of Rights, S.C. 1960, c. 44.

Note 16: Smith, supra, at pp. 1061-70 S.C.R.

Note 17: Smith, supra, at p. 1068 S.C.R.; Professor Walter Tarnopolsky, "Just Deserts or Cruel and Unusual Treatment or Punishment? Where Do We Look for Guidance?" (1978), 10 Ottawa L. Rev. 1 at 32-33.

Note 18: R. v. Miller, 1976 12 (SCC), [1977] 2 S.C.R. 680, [1976] S.C.J. No. 91.

Note 19: R. v. Labaye, [2005] 3 S.C.R. 728, [2005] S.C.J. No. 83, 2005 SCC 80.

Note 20: R. v. Ferguson, supra.

Note 21: R. v. McDonald, supra.

Note 22: R. v. Johnson, [2011] O.J. No. 822, 2011 ONCJ 77, at para. 151.

Note 23: R. v. B. (A.), 2006 2765 (ON SC), [2006] O.J. No. 394, 204 C.C.C. (3d) 490, 35 C.R. (6th) 249 (S.C.J.).

Note 24: R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32.

Note 25: R. v. Ferrigon, 2007 16828 (ON SC), [2007] O.J. No. 1883, 73 W.C.B. (2d) 621 (S.C.J.), at para. 25.

Note 26: Nur, supra, at paras. 41-45 (see, in particular, para. 44).

Note 27: R. v. Grant (2006), 2006 18347 (ON CA), 81 O.R. (3d) 1, [2006] O.J. No. 2179, 209 C.C.C. (3d) 250 (C.A.), at paras. 81-82.

Note 28: R. v. Los, [2008] O.J. No. 3248, 78 W.C.B. (2d) 883 (S.C.J.); R. v. Canepa, [2011] O.J. No. 924, 2011 ONSC 1406; R. v. Snobelen (April 25, 2008), unreported, S.D. Brown J. (Ont. C.J.).

Note 29: Morrisey, supra, at para. 75.

Note 30: Smith, supra, at pp. 1073-74 S.C.R.

Note 31: Morrisey, supra, at para. 45.

Note 32: Morrisey, supra, at para. 65.

Note 33: Nur, supra, at para. 96.

Note 34: Nur, supra, at paras. 104, 108.

Note 35: Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33, 2005 SCC 35.

Note 36: Nur, supra, at para. 140.

Note 37: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 26 D.L.R. (4th) 200.

Note 38: R. v. Hess, 1990 89 (SCC), [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 DL.R. (4th) 12, at pp. 887-89 S.C.R.

Note 39: R. v. B. (D.) (2008), 92 O.R. (3d) 399, [2008] 2 S.C.R. 3, [2008] S.C.J. No. 25, 2008 SCC 25, at para. 89; Reference re Motor Vehicle Act (British Columbia) S 94, 1985 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, at p. 518 S.C.R.

Note 40: R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29; R. v. Beare, 1988 126 (SCC), [1988] 2 S.C.R. 387, [1987] S.C.J. No. 92; R. v. Ng, [2003] A.J. No. 489, 2003 ABCA 1, 327 A.R. 215, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 33.

Note 41: Criminal Justice Act 2003 (U.K.), 2003, c. 44, s. 287(2).

Note 42: Criminal Law Amendment Act, vol. 510, No. 30638 of 2007, s. 51(3)(a).

Note 43: S. v. Malgas, 2001 (1) SACR 469 (S.C.A.), at para. 25.

Note 44: Smith, supra, at p. 1081 S.C.R.

Note 45: Oakes, supra, at para. 71.

Note 46: R. v. Ferguson, supra.

Note 47: Ferguson, supra, at para. 33.

Note 48: Ferguson, supra, at paras. 40-73 (see, especially, para. 40).

Note 49: Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134, [2011] S.C.J. No. 44, 2011 SCC 44.

Note 50: Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 56.

Note 51: R. v. Nasogaluak, [2010] 1 S.C.R. 206, [2010] S.C.J. No. 6, 2010 SCC 6.

Note 52: Nasogaluak, supra, at paras. 6, 64.

Note 53: R. v. Minot, [2011] N.J. No. 10, 2011 NLCA 7, 82 C.R. (6th) 338.

Note 54: Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679, [1992] S.C.J. No. 68.

Note 55: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6.

Note 56: R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555, 205 C.C.C. (3d) 488, 37 C.R. (6th) 46 (C.A.).

Note 57: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76.