MANDATORY MINIMUM SENTENCE - SMICKLE DECISION
R. v. Smickle, 2012 ONSC 602 (CanLII)
 At just before 2:00 am on March 9, 2009, Leroy Smickle was engaged in a very foolish act. He was alone in the apartment of his cousin, Rojohn Brown, having elected (because he had to be at work in the morning) to stay in while his cousin went out to a club. Mr. Smickle was reclining on the sofa, wearing boxer shorts, a white tank top, and sunglasses. Thus clad, he was in the process of taking his picture for his Facebook page, using the webcam on his laptop computer. For reasons known only to Mr. Smickle, and which arguably go beyond mere foolishness, he was posing in this manner with a loaded handgun in one hand. Unfortunately for Mr. Smickle, at this exact moment, members of the Toronto Police Emergency Task Force and the Guns and Gangs Squad were gathered outside the apartment preparing to execute a search warrant in relation to Mr. Brown, who was believed to be in possession of illegal firearms. They smashed in the door of the apartment with a battering ram, and Mr. Smickle was literally caught red-handed, with a loaded illegal firearm in his hand. He immediately dropped the gun and the computer, as ordered to by the police, and was thereupon arrested.
 Having convicted Leroy Smickle of possession of a loaded firearm contrary to s. 95(1) of the Criminal Code, I must now impose a fit sentence for this offender and this crime. Mr. Smickle has no criminal record. Pursuant to s. 95(2) of the Code, the mandatory minimum sentence for a first offence under this provision, if prosecuted by indictment, is imprisonment for three years. Mr. Smickle challenges the constitutional validity of the minimum mandatory sentence I would be compelled to impose under s. 95(2). If the legislation is valid, I have no discretion; he must be sentenced to three years in a federal penitentiary.
 Having concluded that a one-year sentence is appropriate for Mr. Smickle, I must now consider whether the imposition of the three-year sentence mandated by the Criminal Code would constitute cruel and unusual punishment within the meaning of s. 12 of the Charter. I find that it does.
 I have reached that conclusion applying the “grossly disproportionate” test as established in Smith, which, as I have already said, I consider to be an objective test. However, on the facts of this case, I would have reached the same conclusion if I had, instead, taken into account whether a three year sentence would shock the public conscience. In my opinion, a reasonable person knowing the circumstances of this case, and the principles underlying both the Charter and the general sentencing provisions of the Criminal Code, would consider a three year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable.
 In the result, Code J. did not strike down the legislation because of the s. 7 breach, but only because he found that Mr. Nur lacked standing to obtain that remedy. Given the circumstances of Mr. Nur’s offence and the appropriate sentence for that offence, Code J. found that he did not fall within that “small class of accused who would reasonably have faced summary proceedings, but for the two year gap in s. 95(2)(b).” However, he then held, at para. 142:
I should add that when a case does arise, where the Crown proceeds by indictment but reasonably would and should have proceeded summarily, but for the two-year “gap” in the sentencing regime, then the arbitrariness in s. 95(2)(b) will become inextricably linked to the mandatory minimum sentence in s. 95(2)(a). In that case, the accused can challenge the entire regime in s. 95(2), on both s. 12 and s. 7 grounds.
 Again, these words appear prophetic. Mr. Smickle does fall within that class of individuals who could reasonably have faced summary proceedings, even on the limited facts known to the Crown at an early stage. But for the one year upper limit for sentencing in the summary proceeding, he could well have benefitted from the hybrid scheme and not have been subjected to the three-year mandatory minimum on indictment. He therefore has standing to challenge the scheme under s. 7 of the Charter.
 The findings as to the arbitrariness of the scheme made by Code J. in Nur were obiter in light of his finding on the standing issue. Strictly speaking, I am not obliged to follow his decision on this point. However, I find myself in complete agreement with his analysis. I therefore find that the mandatory minimum, when coupled with the one year ceiling for summary conviction proceedings, is arbitrary and violates Mr. Smickle’s rights under s. 7 of the Charter.
 The applicant has established that the impugned legislation violates his rights under both ss. 12 and 7 of the Charter. The onus now shifts to the Crown to prove that the violation is demonstrably justifiable in a free and democratic society, as provided for in s. 1 of the Charter. The test is well-established. The Crown must demonstrate that the offending provision: addresses a pressing and substantial legislative objective; is rationally connected to that objective; and minimally impairs the right in question. Also, there must be proportionality between the effects of the rights violation and the objective of the legislation – the more severe the deleterious effects, the more important the objective must be.
 In coming to this conclusion I have applied the modified Oakes test for proportionality as developed in Dagenais. However, even on the application of the classic proportionality test from Oakes, the impugned legislation does not pass muster because of the severity of the deleterious effects. Indeed, given the fact that the provision is both arbitrary and constitutes cruel and unusual punishment, it would be exceedingly difficult to justify it as proportional when balanced with such a broad legislative objective.
 Accordingly, I find that s. 95(2) of the Criminal Code breaches the Charter and that the infringement is not saved by s. 1.
(v) Declaration of Invalidity
 I am required by a legislative provision to impose a sentence I have found to be cruel and unusual punishment in violation of s. 12 of the Charter. I have also found that the scheme of the legislation in question is arbitrary and a violation of Mr. Smickle’s rights under s. 7 of the Charter. The provision cannot be saved under s. 1 of the Charter. The plain language of s. 52 means that the legislative provisions inconsistent with the Charter are of no force or effect to the extent of the inconsistency. In my opinion, I am bound by Ferguson. The proper remedy is a declaration of invalidity. Accordingly, a declaration shall issue that the reference to “a minimum sentence of imprisonment of, in the case of a first offence, three years” as set out in s. 95(2) (a) of the Criminal Code is of no force or effect.
 I see no reason why this decision should not take effect immediately. In Schachter v. Canada, the Supreme Court considered the appropriateness of suspending a declaration of constitutional invalidity of impugned legislation. Lamer C.J. noted, at p. 716, that to delay the declaration “is a serious matter.” A suspended declaration allows for a Charter-violating state of affairs to persist. Lamer C.J. provided guidelines as to when a suspension will be warranted:
A. striking down the legislation without enacting something in its place would pose a danger to the public;
B. striking down the legislation without enacting something in its place would threaten the rule of law; or,
C. the legislation was deemed unconstitutional because of underinclusiveness rather than overbreadth, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rights have been violated.
None of these factors support a suspension of the finding of invalidity. The underlying offence will still exist and the same maximum penalty will apply for those convicted of it. There is therefore no danger to the public or interference with the rule of law. Judges will simply sentence individuals convicted of this offence in accordance with the sentencing principles set out in the Criminal Code and judicial precedent. However, if a suspension is ordered, there is a real risk that individuals will be subjected to the arbitrariness of the scheme and/or cruel and unusual punishment during the period of suspension. That is inconsistent with Charter values and with the principles established in Schacter. Accordingly, in my view, it is not appropriate to suspend the operation of my ruling. The declaration of invalidity shall have immediate effect.
 A declaration shall issue that the reference to a minimum punishment of imprisonment for a term of, “in the case of a first offence, three years” as set out in s. 95(2)(a)(i) of the Criminal Code is inconsistent with the Charter of Rights and Freedoms and of no force or effect.
 On Count 1, Leroy Smickle is sentenced to a term of five months (after credit of seven months for time served and time spent on bail), to be served conditionally in the community, subject to the statutory conditions and any further conditions I may impose after hearing further submissions on February 13, 2012.