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February 14, 2012

Canadian judge resisting mandatory sentencing provisions

The Toronto Globe and Mail has this new article, headlined "In challenge to Ottawa, judge refuses to impose mandatory sentence" which provides a northern perspective on the classic concerns about federal judges forced to impose rigid mandatory sentencing terms. Here are excerpts from the piece:

An Ontario Superior Court judge has refused to impose a mandatory three-year sentence on a man caught with a loaded handgun, putting the courts on a collision course with the federal government’s belief in fixed sentences that provide judges with little discretion.

In a decision Monday, Madam Justice Anne Molloy added fuel to a rising sense of judicial anger over mandatory minimum sentences by striking down the compulsory term as cruel and unusual punishment. Instead, she sentenced the defendant, Leroy Smickle, to a year of house arrest. Judge Molloy concluded that Mr. Smickle, a 30-year-old Toronto man with no criminal record, had merely been showing off by striking a “cool” pose over the Internet when police happened to burst into an apartment on March 9, 2009, in search of another man.

The government has adamantly held to the view that mandatory minimums are a necessary restraint on judges who might impose inappropriately lenient sentences for certain offences. That is part of a larger tough-on-crime agenda that includes everything from harsher prison sentences to restricting parole and pardons.

Several months ago, in another major challenge in Ontario Superior Court, a similar sentencing provision was upheld in a firearms case, Regina v. Nur. That, combined with the Smickle ruling, could well result in a high-profile appeal that goes all the way to the Supreme Court of Canada.

Critics argue that a one-size-fits-all sentencing policy inevitably leads to unfair results. In her ruling Monday, Judge Molloy added her voice to those criticisms by saying there are an endless number of scenarios where a fixed sentence would be so cruel as to violate the Charter of Rights....

“In my opinion, a reasonable person knowing the circumstances of this case and the principles underlying both the Charter and the general sentencing provision of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable,” Judge Molloy said....

The judge noted that bad drafting was partially to blame for the legal straitjacket she found herself in. She took issue with a discrepancy in the firearms law, passed in 2008, which allows a judge to impose a more lenient sentence should the Crown choose to proceed summarily with a charge – an option that includes no jury and swifter resolution. She said that if the Crown instead proceeds by indictment, as it did in Mr. Smickle’s case, the minimum sentence automatically becomes three years.

The discrepancy created by the two sentence ranges is so “irrational and arbitrary” that it would shock the community were she to impose the mandatory sentence on Mr. Smickle, Judge Molloy said.

February 14, 2012 at 09:03 AM | Permalink

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Comments

The article doesn't say why a federal law controls sentencing in Ontario Superior Court. In the U.S., Congress could not do that directly. Congress occasionally does misuse the spending power to coerce states into changing criminal justice policy, but for the most part we still make these decisions at the state level, and properly so.

Posted by: Kent Scheidegger | Feb 14, 2012 10:08:00 AM

LOL a WHOLE three years!

we have defendants that would and have KILLED for a sentence like that!

of course the following just shows that the politicians in canada have been spending TOO much time down under as it were in america!

"The judge noted that bad drafting was partially to blame for the legal straitjacket she found herself in. She took issue with a discrepancy in the firearms law, passed in 2008, which allows a judge to impose a more lenient sentence should the Crown choose to proceed summarily with a charge – an option that includes no jury and swifter resolution. She said that if the Crown instead proceeds by indictment, as it did in Mr. Smickle’s case, the minimum sentence automatically becomes three years."

Plus i agree with her! the above sytem is RETARDED and quite probably CRIMINAL!

Posted by: rodsmith | Feb 14, 2012 10:09:52 AM

A prime example of Congress' "misuse of the spending power to coerce states into changing criminal justice policy" is of course SORNA.

Posted by: friend of federalist | Feb 14, 2012 1:26:56 PM

If you're "merely" showing off by "striking a 'cool' pose," why is the gun loaded?

Posted by: Bill Otis | Feb 14, 2012 1:47:09 PM

well bill probably the only thing more dangeorus than a "loaded" gun is one someone THINKS is unloaded!

Posted by: rodsmith | Feb 14, 2012 2:46:49 PM

plus of course there was this!

" Leroy Smickle, to a year of house arrest. Judge Molloy concluded that Mr. Smickle, a 30-year-old Toronto man with no criminal record, had merely been showing off by striking a “cool” pose over the Internet when police happened to burst into an apartment on March 9, 2009, in search of another man."

So FIRST he was showing off to a COMPUTER SCREEN. I'm pretty sure bullets won't travel the net! LOL

Then you have a set of KEYSTONE screw up cops busting into his home LOOKING FOR SOMEONE ELSE! when they fell over him in front of his computer!

They HAD to charge him with SOMETHING otherwise the lawsuit resulting from this bit of CRIMINAL STUPIDITY could have cost them millions! if the right lawyer took it!

Posted by: rodsmith | Feb 14, 2012 2:49:04 PM

What they should have done was got on their knees and thanked god! alaha or whatever one they belived in they were STILL LIVING!

Illegaly bust into MY house and i've got a LOADED gun in hand. SOMEBODY IS GONNA BE DEAD!

Posted by: rodsmith | Feb 14, 2012 2:50:44 PM

Excellent move by the judge, mandatory mnimums should be unconstitutional

Posted by: Public Defense Attny | Feb 15, 2012 10:13:33 AM

"mandatory mnimums should be unconstitutional"

Are you talking about for things like gun/drug possession or all crimes?

I assume you are not seriously suggesting that a statute providing that the punishment for first-degree murder is 20-years-to-life is unconstitutional because there's a minimum term of 20 years, and that the only sentencing regime that, in your view, would pass constitutional muster would therefore be one in which there are no minimum sentences and judges could impose house arrest/suspended sentences/no penalty in any case, subject only to abuse-of-discretion review on appeal (although, of course, there would be hard-and-fast maximums on sentences that could be imposed).

Posted by: guest | Feb 15, 2012 6:38:05 PM

guest --

I have noticed that the likelihood of your getting an answer is inversely proportional to the degree of embarrassment the question poses to your correspondent.

Good luck with this one! I think Ahmajinedad will turn into Mr. Nicey before you get an answer.

Posted by: Bill Otis | Feb 16, 2012 2:11:01 AM

Once upon a time in California, we actually had to enact a statute to stop judges from granting probation to people who commit robbery with a gun. Seriously, I'm not making this up. The California Supreme Court actually declared the statute unconstitutional, 4-3, but then it granted rehearing and one of the four changed his mind.

Posted by: Kent Scheidegger | Feb 16, 2012 10:31:02 AM

Canada has an extraordinarily peculiar criminal justice system from a federalist perspective. Criminal law is uniform through the country and is dictated by federal statutes, but criminal trials are conducted in courts run by the provincial government, presided over by provincially-appointed judges. I've never understood why the system works this way. The same issue arises with the Canadian prison system. Provincial prisons house all inmates sentenced to terms of less than 2 years, while federal institutions take care of the rest. However, all criminal trials are conducted provincially. This sometimes leads to interjurisdictional standoffs, as now, when provinces are refusing to bear the cost of constructing institutions made necessary by new federal criminal statutes, which impose new mandatory minimums.

As for the question of constitutionality, Canadian judges are very willing to exercise judicial-review powers. It would actually surprise me if this trial judge's decision were reversed on appeal, given the record of the country's courts in striking down criminal statutes that might potentially lead to unfair outcomes.

Posted by: GV | Feb 21, 2012 6:59:26 PM

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