THE BLOG
02/18/2012 11:44 EST | Updated 04/19/2012 05:12 EDT

Hey Toews: Do You Feel Lucky?

Without engaging in too much hyperbole, there is a clear and profound war going on right now in Canada between those who value reason and those who choose to engage in deliberate, crass fear-mongering. I implore you all to embrace reason and value the freedoms that we still enjoy in this country.

How does one even begin to respond rationally to the typical Tory bully boy theatre performance where Canada's public safety minister referring to his critic openly stated, "He can either stand with us or with the child pornographers."

For those of us who are interested in preserving Canada as a free and democratic nation despite the present far right-of-centre majority government; for those of us who are interested in preserving our privacy rights; for those of us who don't believe in mandatory minimum sentences because they simply don't work -- these are precisely the times where we must unite and push back.

There are glimmers of hope amidst the Dirty Harry, "Let's string them all up with the same rope," ethos prevalent in these dark times. This punk is beginning to feel lucky! The most recent brave and insightful decision by Justice Anne Molloy in R. v. Smickle Superior Court of Justice has given me reason to have some hope.

The facts are these: Mr. Smickle had no criminal record, never had been in trouble with the police, and had a full-time job. He was 27 at the time of the offence. He was found by the police in an apartment belonging to his distant cousin Mr. Brown. The police had information indicating that Mr. Brown was in illegal possession of firearms. The police obtained a search warrant for Mr. Brown's apartment and upon execution of the warrant the police found Mr. Smickle to be the only person inside Mr. Brown's apartment. At around two a.m., when the police crashed through Mr. Brown's apartment door with a battering ram, Mr. Smickle was found to have a laptop computer in his right hand and a gun in his left hand. The police officers testified that Mr. Smickle did not resist arrest and dropped the computer and the gun immediately on the floor. At no time did Mr. Smickle point the firearm at the police. Mr. Smickle was right handed.

Further evidence came out supporting the fact that moments before the police entered the apartment, Mr. Smickle had put on a pair of sunglasses to "look cool." Mr. Smickle then proceeded to take photos of his cool self with the computer in his right hand and posing with the gun in his left hand. It was his intention to put his "cool picture" on Facebook to enhance his street cred with his friends. Naturally, one has to seriously question the social and family values of individuals who believe that wearing sunglasses and posing as a Gangsta' dude in pictures holding a gun actually enhances one's credibility! Truth be told, I am not a huge fan of music video Gangsta' looking dudes. They are typically singing along to a thumping beat with the obligatory visage of women shaking their butts while the young men throw endless amounts of cash straight at the camera flashing their bright diamond "grills." A thinking person may laugh out loud at this constant and vulgar display of fake and cartoonish macho intensity. On the other hand you would be surprised to learn how many young men from certain communities take the fantasy seriously and worship the lifestyle that their video heroes ostensibly lead. Too often on cellphone cameras and other such devices, police typically find and seize photographs where young men are desperately trying to imitate and duplicate low-rent images of "bad boy" behaviour.

Justice Molloy found Mr. Smickle guilty. Justice Molloy also found Mr. Smickle "guilty of colossally bad judgement." Pursuant to s. 95 (2) of the Canadian Criminal Code, where the Crown proceeds by indictment, a three year minimum mandatory federal penitentiary sentence must be imposed by the presiding judge upon conviction or a plea. There is supposed to be no judicial discretion, there is to be no analysis about the specific circumstances of the offence or the offender. Accordingly, in theory, the size of the suit one offender is to wear would and should fit any and all offenders. The defence lawyers for Mr. Smickle challenged this legislation under The Canadian Charter of Rights and Freedoms. They argued that section 95 (2) of the Criminal Code should be struck down as being unconstitutional. The defence argued that a fair and just punishment for someone like Mr. Smickle in these circumstances should be a conditional sentence where he would serve his jail time in the community. The defence maintained that section 95 (2) of the Criminal Code was "cruel and unusual" punishment under s.12 of The Canadian Charter of Rights and Freedoms.

In her well-reasoned and well-researched judgment in this case, Justice Molloy agreed with the defence. She found section 95 (2) to be unconstitutional and struck it down. In addition, Justice Molloy found no objective reason why Mr. Smickle should not be subject to a conditional sentence where he could serve his jail time in the community. As a sitting judge in Toronto no doubt Justice Molloy has judicially dealt with the carnage and destruction that guns and drugs bring to our city. In Paragraph 51 of her decision she plainly states, "As a trial judge in Toronto, I am painfully aware, and am reminded daily, of the deadly scourge represented by handguns in our community."

In my respectful view, even with this kind of intimate knowledge about guns in our city we must not pander to our baser instincts and blindly follow the freedom-abating law and order Tory agenda that purports to keep us safe. You can bet that R. v Smickle is going to be vigorously appealed all the way to The Supreme Court of Canada. The current powers that be, who see the world only through a simplistic draconian binary analysis, will not allow this important and brave decision to go unchallenged.

Without engaging in too much hyperbole, there is a clear and profound war going on right now in Canada between those who value reason and those who choose to engage in deliberate, crass fear-mongering. I implore you all to embrace reason and value the freedoms that we still enjoy in this country.