TORONTO - Six cases will go before the Court of Appeal for Ontario in 2013 together in what is expected to be a landmark ruling on mandatory minimum sentences for gun crimes. Several other cases involving challenges to provisions in the federal Conservatives' omnibus crime bills were before the courts this year.
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 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. She declared the sentence law to be unconstitutional. Ontario's Appeal Court will hear the case in February.
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. He warned the law was vulnerable to being struck down. Ontario's Appeal Court will hear the case in February.
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. Ontario's Appeal Court will hear the case in February.
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. Ontario's Appeal Court will hear the case in February.
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 Rocheleau deserves a four-year sentence. The constitutional issue is being raised for the first time on appeal. Ontario's Appeal Court will hear the case in February.
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. Ontario's Appeal Court will hear the case in February.
R v Christopher Lewis
Lewis, a crack dealer, was convicted of offering to traffic a firearm after offering to sell an undercover police officer a gun. But the judge found that it was a hollow offer, that Lewis never intended to sell a gun, and he should not be subject to the mandatory three-year minimum sentence. The judge found the law unconstitutional and struck it down. The province is seeking leave to appeal the decision.
R v Roland Hill
The Crown wanted to have Hill declared a dangerous offender using a three-strikes law enacted in the 2008 omnibus bill. If an offender was convicted three times of a specified violent or sexual crime with sentences of at least two years, the law shifted the burden of proof from the Crown to them. The judge found it was unconstitutional to make someone prove why they are not a dangerous offender and struck down the law. Hill died in prison soon after and the government has decided not to pursue an appeal, as the lower-court decision is not binding.
Quebec Bar Association
The Quebec Bar Association launched a legal challenge last month seeking to strike down sections of the 2012 omnibus bill involving mandatory minimums. The bar association said mandatory minimums don't protect the public and represent an unconstitutional interference from one branch of government, the legislature, in the business of another, the judiciary.