R. v. Smickle (L.),

• Jurisdiction: Ontario
• Judge: Doherty, Goudge, Cronk, Blair and Tulloch, JJ.A.
• Neutral Citation: 2014 ONCA 49
• Citation: (2014), 317 O.A.C. 196 (CA),2014 ONCA 49,306 CCC (3d) 351,317 OAC 196,(2014), 317 OAC 196 (CA),317 O.A.C. 196
• Date: 22 January 2014
• Court: Court of Appeal (Ontario)

R. v. Smickle (L.) (2014), 317 O.A.C. 196 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JA.029

Her Majesty the Queen (appellant) v. Leroy Smickle (respondent)

(C55082; 2014 ONCA 49)

Indexed As: R. v. Smickle (L.)

Ontario Court of Appeal

Doherty, Goudge, Cronk, Blair and Tulloch, JJ.A.

January 22, 2014.

Summary:

The accused was convicted of having possession of a loaded prohibited firearm (Criminal Code, s. 95(1)). The Crown had proceeded by indictment thereby triggering the mandatory minimum three year sentence in s. 95(2)(a)(i) of the Code. The accused claimed that the three year mandatory minimum sentence was contrary to ss. 7 and 12 of the Charter.

The Ontario Superior Court, in a decision reported [2012] O.T.C. Uned. 602, agreed that s. 95(2)(a)(i) violated ss. 7 and 12 of the Charter and could not be justified under s. 1. The court declared the mandatory minimum of no force or effect. The Crown appealed.

The Ontario Court of Appeal agreed that the mandatory minimum sentence breached s. 12 of the Charter, but did not infringe s. 7. The court affirmed that the mandatory minimum was of no force or effect. The court, however, agreed with the Crown's submission that the trial judge made several findings of fact on sentencing that had no support in the record. In the court's view, the sentence imposed by the trial judge, even without a three year mandatory minimum penalty, was totally inadequate. In keeping with the submissions of counsel during oral argument, the court gave counsel an opportunity to make further submissions as to the appropriate sentence.

The Ontario Court of Appeal, after considering the submissions, allowed the appeal, set aside the sentence imposed at trial. The court held that a proper sentence would have been two years less a day imprisonment. Taking into account 12 months' pre-sentence credit, the accused should have received a further sentence of 12 months' incarceration. However, the court permanently stayed the execution of that sentence.

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court fully or partially served (incl. appeal delay) - The accused was convicted of possession of a loaded firearm (Criminal Code, s. 95) - The trial judge imposed a one year conditional sentence, reduced to five months for pre-sentence custody - The Crown appealed - The Ontario Court of Appeal held that the sentence was manifestly inadequate - A proper sentence was two years less a day - Taking into account 12 months' pre-sentence credit, the appeal court imposed a sentence of 12 months - However, the court permanently stayed the execution of that sentence - The original sentence was served - Sentencing had been delayed by a lengthy appellate process - Re-incarceration might pose significant risk to the stability of the accused's present life and his rehabilitation - The principles of deterrence and denunciation could be fully served without re-incarceration.

Cases Noticed:

R. v. Hamilton (M.A.) et al. (2004), 189 O.A.C. 90; 72 O.R.(3d) 1; 2004 CanLII 5549 (C.A.), refd to. [para. 10].

R. v. Banci, [1982] O.J. No. 58 (C.A.), refd to. [para. 10].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 10].

R. v. G.C.F. (2004), 189 O.A.C. 29; 71 O.R.(3d) 771 (C.A.), refd to. [para. 10].

R. v. Taylor (E.) (2013), 337 Nfld. & P.E.I.R. 24; 1047 A.P.R. 24; 2013 NLCA 42, refd to. [para. 12].

R. v. Nur (H.) (2013), 311 O.A.C. 244; 2013 ONCA 677, refd to. [para. 19].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 95(1) [para. 1].

Counsel:

Riun Shandler and Andreea Baiasu, for the appellant;

Mark Halfyard, Jeff Hershberg and Breana Vandebeek, for the respondent.

This appeal was heard before Doherty, Goudge, Cronk, Blair and Tulloch, JJ.A., of the Ontario Court of Appeal. The following decision was delivered by the court on January 22, 2014.