Strict Gun Sentences Ruled Unconstitutional by Ontario Appeal Court

This article was last updated on April 16, 2022

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In a decision announced on Tuesday morning, Ontario Court of Appeal has ruled that the three-year mandatory minimum sentence for possession of firearms, imposed by the Conservative government in 2008, to be unconstitutional and against the law. The ruling pointed out that Section 95 of the Criminal Code violates section 12 of the Charter of Rights and Freedoms, in light of which the five-judge panel concluded that the law is considered “cruel and unusual punishment.”

In pursuance of the Conservative government’s tough-on-crime push prompted by a spate of gun-related violence in in 2008, it decided for mandatory minimum sentences of gun crimes to be stiffened. A rare five-judge panel inspected six different cases in a four-day hearing last February, most prominent among which was the case of Leroy Smickle. Mr. Smickle was caught posing for a Facebook photo holding a loaded handgun, after which police searched his cousin’s apartment and charged him with possession of loaded firearm, which is known as a hybrid offence because the Crown can either choose to proceed summarily in less serious cases or by indictment in more serious cases.

Consequently, if government chooses to proceed summarily, it implies a maximum sentence of one year in jail, though it could be extended to a minimum of three years in a federal prison if preceded by indictment. In one of the decisions under appeal, Justice Anne Molloy noted that it is this two-year gap in sentencing options that constrains the justice system and leads to unfit sentences.