Cases to be heard in mandatory minimum appeal
The Canadian PressMonday, February 18, 2013
TORONTO - Six cases will go before the Court of Appeal for Ontario together this week in what are expected to be landmark cases on mandatory minimum sentences for gun crimes.
R v. Leroy Smickle
Smickle was in his cousin's house in his boxers, posing for a Facebook picture with a loaded handgun, when police burst in with a search warrant for the cousin, who they believed had illegal firearms. Smickle was caught red handed. He was convicted of possession of a loaded prohibited firearm, but the judge ruled that it would be cruel and unusual to send the first-time offender to prison for a "very foolish" act for three years — the mandatory minimum enacted in 2008. The judge declared the sentence law to be unconstitutional. The Crown has appealed.
R v. Hussein Nur
Nur pleaded guilty to possession of a loaded prohibited firearm. The judge ruled that if the mandatory minimum did not exist, he would sentence Nur to 2 1/2 years. So, he did not find the three-year mandatory minimum to be grossly disproportionate. The judge did raise several scenarios in which the mandatory minimum would be inappropriate, but he decided that could be remedied if the Crown elected to proceed by summary conviction, which is less serious and carries a maximum sentence of one year. Nur challenged the law on the basis that the two-year gap between the maximum summary conviction sentence and the minimum on an indictable offence was arbitrary and contrary to the charter. The judge agreed, but dismissed the challenge on a technicality. Nur has appealed.
R v. Frank Meszaros
Meszaros used a loaded shotgun to threaten two people who were fishing in his private trout pond. He was convicted of assault and using a firearm in the commission of an indictable offence. Meszaros challenged the one-year mandatory minimum sentence as violating the charter, but the judge dismissed it, finding it was not cruel and unusual or grossly disproportionate. Meszaros has appealed.
R v. Matthew Rocheleau
Rocheleau was convicted of robbery with a firearm, along with a slew of other offences stemming from a series of robberies. He argues it is unconstitutional that mandatory minimum sentences for robbery with a firearm and using a firearm while committing an indictable offence must be served consecutively. The judge upheld the mandatory minimum at trial. Rocheleau has appealed.
R v. Ian Chambers
Chambers was convicted of possession of a restricted firearm, as well as several other offences. Since he had previously been convicted of a gun possession offence, the mandatory minimum sentence is five years. Chambers was actually sentenced to six years on that count, but his lawyer argues that the mandatory minimum serves as an "inflationary floor" and Chambers deserves at most four-year sentence. The constitutional issue is being raised for the first time on the appeal, brought by Chambers.
R v. Sidney Charles
Charles pleaded guilty to several firearm offences after a loaded gun was found in his bedroom at a rooming house. He was subject to the five-year mandatory minimum sentence for a second offence, but he challenged the law about what constitutes an earlier offence. The judge found there was no charter breach in this case and upheld the law. Charles has appealed.