May 8, 2012 – Under section 95(2) of the Criminal Code of Canada, it is mandatory that any person who is convicted of the offence of possession of a restricted firearm under section 95(1) is to be sentenced to 3 years imprisonment. However, in R. v. Smickle,  O.J. No. 612, February 13, 2012, the sentencing judge ruled that the statutory requirement is unconstitutional and sentenced the convicted Mr. Smickle to a 12-month conditional sentence, less seven months’ credit. A conditional sentence is comprised of a component of house arrest and probabtion.
The judge in this case did not follow the statutory scheme for sentencing because, in her view, the 3-year minimum sentence did not fit the crime. Mr. Smickle had a major lapse in judgement when he used a loaded handgun to pose for a facebook picture while lounging on a chair in front of a laptop. When the police burst into the apartment where he was posing, he immediately dropped the gun and fully cooperated with police. Justice Molloy reasoned that “the offender was a youthful, first-time offender who was employed and had a close relationship with his daughter. There was no indication of criminal involvement or danger to the community. His conduct on bail was exemplary.” The judge went on in her reasoning that, under the facts of the case and the totality of the circumstances, a 12-month conditional sentence was an appropriate sanction. At paragraph 9 of her decision, Justice Molloy stated:
“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 section 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.”
Justice Molloy’s decision is currently under appeal.