By Kirk Makin, Globe and Mail, February 14, 2012
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.
She said the federal goal of deterring crime is understandable and effective – up to a point. The problem is that individuals can be unfairly crushed along the way, she said. The judge cited Mr. Smickle as just such a case – a peaceable man with solid career prospects whose life would likely have been ruined by the imposition of a three-year penitentiary sentence.
Imagine a Justice willing to put the federal government's "one-size-fits-all sentencing" on trial!
This is a day when Canadians can thank Justice Molloy for her insight, her courage and her willingness to make a "fair" judicial decision rather than destroy the life of an individual. And of course, along with other similar decisions, this one will likely be included in an appeal to the Supreme Court where the current government's "tough-on-crime" legislation will be facing the Charter of Rights and Freedoms and the justices will decide.
Trying to overturn what is essentially a fair judicial system, including fair and balanced judgements from fair and balanced judges might prove more difficult than this government would have thought, if this government did any thinking. Playing politics with the lives of Canadians, for their own politicial purposes (getting and assuring themselves of getting the votes of their neo-con base in the next election!!) is simply not the job of the federal government.
It is the people like Justice Anne Molloy who are protecting Canadians by retaining the respect, credibility and fairness that is at the core of the Canadian justice system, and not the current federal government playing "bully to the nation" in a guise of assumed and pontifical power that is neither required nor respectful of the tradition of our judicial system.
Only if and when this government brings real human beings into its consideration, on all files, will it begin to earn the respect of the Canadian people. It is people for whom they are responsible, for whom they are charged with governing, for whom they are charged with protecting And one of those people is Justice Anne Molloy whose discretion and perspective and independence is essential to the maintenance of law and order. The government is not only governing for some abstract concept of a corporation or a stock exchange, or a class of investors whose identity is unknown unless and until they write that "manna" cheque to the conservative party, to fill their coffers to overflowing in time for the next election most of whom believe that the Liberal governments of the recent past were "too soft on crime."
Let's all have a drink in honour of Justice Anne Molloy!
Put that decision in your pipe and smoke it, Mr. Harper and Mr. Nicholson!