Ontario Criminal

Charter of Rights

Mitigating factors found by trial judge speculative and not supported by evidence

Police discovering accused in apartment with loaded semi-automatic while executing warrant. Officers testifying accused found with gun while seated on couch with laptop. Accused testifying he had no gun. Trial judge rejecting accused’s testimony and convicting him of possession of loaded prohibited firearm contrary to s. 95. Accused challenging constitutionality of three year mandatory minimum sentence pursuant to ss. 7 and 12 of Charter. Trial judge making factual findings on sentencing that accused possessed gun only briefly, while alone and for purpose of posting boastful internet photographs. Trial judge holding three year minimum sentence was cruel and unusual punishment contrary to s. 12 given mitigating factors found on sentencing. Crown appealing ruling striking down three year minimum sentence and appealing one year conditional sentence imposed. Crown’s appeal allowed and sentence held to be manifestly unfit. Minimum sentence was not cruel and unusual punishment in accused’s case given gravity of offence. Mitigating factors found by trial judge were speculative and not supported by evidence. Accused’s behaviour was wanton and dangerous and three year sentence, though excessive, would not be grossly disproportionate. Three year mandatory minimum violated s. 12 of Charter in reasonable hypothetical circumstances and was of no force and effect.

R. v. Smickle (Nov. 12, 2013, Ont. C.A., Doherty J.A., S.T. Goudge J.A., E.A. Cronk J.A., R.A. Blair J.A., and M. Tulloch J.A., File No. CA C55082) Decision at 100 W.C.B. (2d) 141 was reversed.  110 W.C.B. (2d) 401.

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