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Wednesday, February 15, 2012

Three years is too much for Smickle says judge

An Ontario Superior Court Judge, Anne Molloy, gave Leroy Smickle a one-year conditional sentence to be served under house arrest for photographing himself, with a computer camera, holding an illegal pistol. The mandatory sentence is three years, but the judge said that it is “cruel and unusual punishment.”

I’m all for mandatory sentences for serious crimes and for judges following the law not making it. The crime does, however, need to be serious and the mandatory sentence needs to fit the crime. Doesn’t it?

There’s more to every situation than meets the eye and Mr. Smickle could very well not be an innocent victim here; however, the mere handling of an illegal gun in a private residence should not automatically carry a three-year penalty.

Yes, Leroy Smickle was probably guilty of something, but three years’ worth? Sounds unduly harsh to me.

© 2012 Russell G. Campbell

 

3 comments — This is a moderated blog and comments will appear when approved. Please don’t resubmit if your comment doesn’t appear immediately, and please do not post material that is obscene, harassing, defamatory, or otherwise objectionable.

  1. "Those Canadians - me included - who favoured the get-tough law when it passed, never imagined it would be implemented so ridiculously. A gun crime means a violent crime committed with a gun, not an administrative crime involving the mere possession of a gun."

    From a Lorne Gunter article at the National Post. Gunter puts into words what many of us think about this law and this case.

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  2. A Judge has to follow the law and dole out the mandatory sentence.It is not up to him/her to change the way the law is written for any reason.BUT,there must be ways to delay these kinds of cases and fast track the exceptional circumstances of why the judge feels mandatory is too harsh.An independent judge in every province that can act as Government tribunal and have the power to deem exceptional circumstance on some cases like this one.BUT again it is not up to the judge to change in any way the laws of the land.

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    1. The judge is required to follow and uphold the constitution, which limits what Parliament can do. If Parliament passes a law that violates the constitution, that law is illegal and must be struck down. That is what the judge did in this case, when she concluded that the punishment required by the mandatory minimum law was "cruel and unusual." Having made that finding, the judge's duty was to strike down the law as unconstitutional. The Court of Appeal and/or the Supreme Court of Canada may yet come to a different conclusion about the cruelness or unusualness of the mandatory minimum, but that is a different question altogether. The idea that a judge could find that the circumstances of a given case are so unusual as to warrant a less-than-the-minimum sentence is fundamentally at odds with the very principle of mandatory minimums. That reasonable people usually agree that judges should have the power to impose less-than-minimum sentence in unusual circumstances is, to me, a fine argument against mandatory minimums!

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