



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Smickle, 2013 ONCA 678

DATED:  20131112

DOCKET: C55082

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

BETWEEN

Her Majesty the Queen

Appellant

and

Leroy Smickle

Respondent

Riun Shandler and Andreea Baiasu, for the appellant

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

Moiz Rahman and Nancy Dennison, for the intervener, the
    Attorney General of Canada

Paul F. Monahan and Kimberly Potter, for the intervener,
    the Canadian Civil Liberties Association

Bruce F. Simpson, for the intervener, the John Howard
    Society of Canada

Virginia Nelder and Faisal Mirza, for the intervener,
    the African Canadian Legal Clinic

Scott Hutchison and Danielle Robitaille, for the
    intervener, the Advocates Society

Heard:  February 19-22, 2013

On appeal from the sentence imposed by Justice Anne M. Molloy
    of the Superior Court of Justice in Toronto on February 13, 2012, with reasons reported
    at 2012 ONSC 602, 280 C.C.C. (3d) 365.

Doherty J.A.:


I



overview

[1]

The respondent was charged with possession of a loaded prohibited
    firearm contrary to s. 95 of the
Criminal Code
, R.S.C. 1985, c. C-46
and other related
    firearm offences.  The Crown elected to proceed by indictment on the s. 95
    charge and the respondent re-elected trial by judge alone.

[2]

The respondent testified that he was not in possession of the gun, but
    the trial judge accepted the evidence of the Crown witnesses and convicted on
    the s. 95 charge.  On sentencing, the trial judge held that the three-year
    mandatory minimum penalty, applicable because the Crown had proceeded by
    indictment, infringed the respondents rights under ss. 12 and 7 of the
Canadian
Charter of Rights and Freedoms
and could not be justified under s. 1
.  She declared the mandatory
    minimum of no force or effect.  The trial judge proceeded to impose a one-year
    conditional sentence which she then reduced to a five-month sentence to take
    into account pre-sentence incarceration and the respondents strict bail
    terms.

[3]

The Crown appeals arguing that the three-year mandatory minimum does not
    infringe ss. 12 or 7 of the
Charter
.  The Crown further contends that
    the trial judge made findings of fact on sentencing that were not available on
    the trial record.  Crown counsel asks this court to hold that the mandatory
    minimum of three years is constitutional and to impose a sentence that reflects
    both the mandatory minimum and the facts of this case.

[4]

For the reasons set out in the companion case of
R. v. Nur
,
    2013 ONCA 677, I would hold that the mandatory minimum does breach s. 12 of the
Charter
.
Again, for
    the reasons set out in
Nur
, I would hold that s. 95 does not infringe
    s. 7 of the
Charter
.

[5]

I agree with the Crowns submission that the trial judge made several
    findings of fact on sentencing that have no support in the record.  In my 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, I would give counsel an opportunity to make
    further submissions as to the appropriate sentence.


II



the evidence at trial

[6]

On March 9, 2009 just before 2:00 a.m., the police executed a search
    warrant at an apartment unit on the 15
th
floor in a high-rise
    apartment building in Toronto.  The police were searching for firearms.  The
    apartment unit was leased to a man named Rojohn Brown.

[7]

The officers made a dynamic entry into the apartment unit.  The door
    was smashed using a battering ram and several members of the Emergency Task
    Force rapidly entered the apartment in a single file.  The second officer to
    enter the apartment threw a distraction device (also known as a flash-bang) into
    the living room area.  That device distracts and disorients anyone who may be present
    by making a very loud noise and causing a very bright flash of light.

[8]

The first officer to enter the apartment testified that as he was entering
    the apartment, and before the distraction device went off, he saw a man, later
    identified as the respondent, who appeared to be getting up from the couch as
    the first officer entered the apartment.  This mans back was to the door and
    he appeared to be turning toward the door.  He had a handgun in his left hand
    and his laptop computer was falling off his lap or tumbling out of his hand.

[9]

At the same time as the first officer saw the respondent rising from the
    couch, the second officer threw the distraction device into the living room,
    resulting in a loud bang and a very bright light.  The respondent dropped the
    gun and fell to the ground as ordered by the police.  He was subdued without
    any resistance.

[10]

A
    Colt 25-calibre semi-automatic handgun, fully loaded with the hammer cocked to
    fire, was found beside the couch.  The weapon is a prohibited firearm within
    the meaning of s. 95.  Fortunately, the weapon did not discharge when the
    respondent dropped it.

[11]

The
    respondent was placed under arrest and removed from the apartment unit.  The
    police found other firearms in the bedroom.  There was no evidence that the
    respondent lived in the apartment or that he was aware of the other firearms
    that were discovered in the search.

[12]

The
    respondent testified in his own defence.
[1]
The respondent testified
    that he went to visit his cousin, Rojohn Brown, on the evening of March 8
th
. 
    He was with his girlfriend.  His girlfriend and Mr. Brown decided to go out,
    but the respondent declined to join them as he had to work the next day.

[13]

The
    respondent indicated that he was chilling on the couch, using his laptop to
    take pictures of himself, when he heard a bang on the door.  He heard two more
    bangs, the door flew open, and the police entered.  According to the
    respondent, he was already in the process of getting down to the floor when the
    distraction device discharged.

[14]

The respondent denied that he was in possession of a handgun when the
    police entered the apartment.  He said, [n]ever had a gun.  Never seen no
    gun.

[15]

By the end of the evidence and submissions, there was one issue: had the
    Crown proved the respondent was in possession of the handgun?  The trial judge,
    after reviewing the respondents testimony, concluded that it was incredible
    and did not leave her with any doubt on the question of possession.  The trial
    judge accepted as accurate the evidence of the police officers, particularly
    the first officer who entered the room and saw the respondent holding the
    handgun.  The trial judge noted that this officers evidence was credible and corroborated
    by the second officer who entered the apartment.  The second officer also saw a
    gun in the respondents hand.


III



findings on sentencing

(i)

The Offender

[16]

The
    pre-sentence report painted a positive picture of the respondent.  He was 27 years
    old at the time of sentencing and did not have a criminal record.  The
    respondent was gainfully employed and was working towards his high school
    diploma.  He was in a relationship and had two children.

(ii)

The Offence

[17]

The
    trial judge made several findings of fact that mitigated the seriousness of the
    offence committed by the respondent.  The Crown submits that many of those
    findings were unsupported by the evidence and were assumptions made by the
    trial judge in the absence of evidence.  Before I examine this submission, I
    will briefly summarize the principles governing fact-finding on sentencing. 
    They are not in dispute.

[18]

If
    the Crown relies on a fact as aggravating on sentencing, and the fact is not admitted,
    the Crown must prove that fact beyond a reasonable doubt.  However, the failure
    to prove an alleged aggravating fact beyond a reasonable doubt does not permit
    the trial judge to assume a version of facts most favourable to an accused.  If
    the defence relies on mitigating facts and those facts are not conceded by the
    Crown, the accused must establish those facts on the balance of probabilities:
Criminal
    Code
,
s. 724(3);
R. v.
    Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18; and
R. v. Holt
(1983), 4 C.C.C. (3d) 32, at pp. 51-52 (Ont. C.A.), leave to appeal to S.C.C.
    refused: S.C.C.A. No. 474.

[19]

The
    Crown alleged two specific aggravating factors on sentencing.  First, the Crown
    argued that the gun belonged to the respondent, who had brought it to the apartment. 
    Second, the Crown submitted that the respondent had cocked the gun in response
    to the arrival of the police at the apartment door.  The trial judge, at paras.
    16-19, found that neither fact was proved beyond a reasonable doubt.  She was
    entitled to come to those conclusions.

[20]

The
    trial judge also made two findings of fact that, in my view, are unassailable. 
    She concluded that the respondent never intended to use the gun against the
    police, and she concluded that, when the police arrived, the respondent was
    taking photographs of himself with his laptop and using the gun, as well as
    sunglasses, as props to make himself appear cool.

[21]

The
    trial judge went on to make a number of other findings.  She found that the
    respondent:

·

found the gun somewhere in the apartment (para. 17);

·

had brief possession of the gun (para. 60);

·

did not possess the gun in the presence of anybody else (para.
    60);

·

had no criminal intent in respect of the gun (para. 60);

·

had no reason to believe his conduct put anybody in harms way
    (para. 60); and

·

possessed the gun solely for the purpose of taking his photograph
    with his laptop and appearing cool (paras. 20 and 60).

[22]

The
    Crowns evidence started with the arrival of the police at the apartment around
    2:00 a.m.  The appellant was alone when the police arrived.  He testified that he
    had been in the apartment for about six hours and that his cousin and his
    girlfriend were with him for part of that time.  His evidence that he was never
    in possession of a gun and never saw a gun was rejected by the trial judge and
    could not assist the trial judge in her fact-finding on sentencing.

[23]

There
    was no evidence to support the findings outlined in para. 21.  Specifically,
    there was no evidence about how the respondent came into possession of the handgun
    in the apartment.  To conclude that he found the gun is pure speculation. 
    Nor was there any evidence as to how long the respondent was in possession of
    the handgun.  He may have been in possession of it for hours.  There is also no
    evidence that he was alone throughout the time he was in possession of the gun. 
    On his evidence, he was in the apartment with two other people for some period
    of time.  Finally, there is no evidence as to the respondents intent in
    respect of the gun and no evidence that his possession was solely for the
    purpose of taking his photograph with his laptop and appearing cool.

[24]

To
    find as the trial judge did, that the respondent just happened to come across the
    handgun while he was alone in the apartment, very shortly before the police
    arrived, and that he did nothing with the gun and had no intention of doing
    anything with the gun other than what he was doing at the very moment the
    police arrived, is to assume the most favourable version of facts for the
    respondent imaginable.  The trial judges approach misses the distinction
    stressed in
Holt
between the Crowns failure to prove an aggravating
    factor and positive findings of fact that may mitigate the penalty.  Thus,
    while it could not be said that anyone else was present while the respondent
    was in the possession of the gun, it equally could not be said that he was
    alone at all times when he was in possession of the gun.  Similarly, while the Crown
    did not prove the intention to commit any other crime while in possession of
    the gun, it could not be inferred from that failure of proof that there was no
    intent to commit further criminal activity.  One is simply left not knowing one
    way or the other.

[25]

The
    respondent, the person who could logically have supplied evidence that may have
    permitted the findings made by the trial judge, chose instead to perjure
    himself and deny possession of the weapon.  It was not for the trial judge to
    fill, through speculation, the factual void created by the respondents perjury.

[26]

I
    must also reject the trial judges characterization of the respondents conduct
    as adolescent preening.  First of all, a 27 year old adult is hardly an
    adolescent.  More importantly, the trial judges characterization minimizes both
    the respondents moral culpability and the danger his conduct posed to others.

[27]

The
    respondent was in possession of a loaded cocked handgun.  On the trial judges
    findings, he was posing with the gun as he photographed himself appearing
    cool.  In other words, he was playing with a fully loaded cocked handgun.

[28]

The
    respondent was not off by himself in some isolated forest playing with a fully
    loaded cocked handgun.  He was in someone elses apartment located in a
    high-rise apartment building.  It is fair to assume there were other people in the
    adjoining apartments who could well have been at risk had the gun accidentally discharged. 
    Furthermore, as subsequent events clearly demonstrated, the respondent had no
    idea of, and no control over, what might happen as he was playing with the
    fully loaded cocked handgun.  The police who were engaged in an important and
    dangerous public duty were clearly put at risk by the respondents conduct.  Surely,
    it is a matter of good fortune that someone was not hurt either by the
    accidental discharge of the respondents firearm or by the police response to
    the apparent threat posed by the respondent.

[29]

On
    any realistic view of the respondents conduct, he demonstrated a wanton or
    reckless disregard for the lives and safety of others.  Fortunately, his
    conduct did not cause any actual harm.  His criminally negligent behaviour is,
    however, morally blameworthy in the same way as was the conduct of the accused
    in
R. v. Morrisey
, 2000 SCR 39, [2000] 2 S.C.R. 90, who accidentally
    shot and killed his friend while fooling around with a loaded rifle in his hand. 
    No one would ever characterize what the accused in
Morrisey
did as
    drunken tomfoolery.  Nor, in my view, should anyone characterize the
    respondents conduct as adolescent preening.

[30]

The
    respondents conduct falls squarely at the true crime end of the s. 95 spectrum
    I described in
Nur
.  He had a loaded cocked gun in his hand.  He was
    engaged in conduct that posed a serious and immediate risk to others.  He had
    no authority to possess the gun at any place or in any circumstances.  Even
    having regard to the personal circumstances of the offender,
[2]
a sentence approaching or at the maximum reformatory sentence (two years less a
    day) would have been appropriate absent a mandatory minimum sentence.


IV



the section 12 claim

[31]

I
    will not repeat the analysis from
Nur
, but will instead set out my
    conclusions based on the application of that analysis to this record.

[32]

The
    three-year minimum sentence is not cruel and unusual as applied to the
    respondent.  Absent the mandatory minimum, I think the respondent could have
    received a sentence at or near two years less a day.  A sentence of three years
    is excessive and perhaps sufficiently excessive to warrant appellate
    intervention.  It does not, however, reach the level of gross
    disproportionality.

[33]

For
    the reasons set out in
Nur
, the mandatory three-year minimum sentence
    is cruel and unusual punishment when applied to a reasonable hypothetical. 
    Consequently, the mandatory minimum infringes s. 12 of the
Charter
. 
    The s. 12 violation cannot be saved by s. 1, and pursuant to s. 52 of the
Constitution
    Act, 1982
, it is of no force or effect.


V



the section 7 claim

[34]

For
    the reasons set out in
Nur
, I do not accept that the two-year gap
    between the maximum penalty available if the Crown proceeds summarily (one
    year) and the minimum penalty available if the Crown proceeds by indictment
    (three years) renders s. 95 arbitrary and contrary to the principles of fundamental
    justice.


VI



conclusion

[35]

I
    would hold that the mandatory minimum is of no force or effect.  I would also
    hold that on a proper reading of the trial record, the sentence imposed by the
    trial judge was manifestly inadequate even absent the mandatory minimum.  Having
    determined that the sentence imposed at trial was manifestly inadequate, I
    would normally proceed to impose an appropriate sentence:
Criminal Code
,
s. 687.  However, through no fault of
    the respondent, over 20 months have passed since he was sentenced.  The
    respondent has placed fresh evidence before this court.  As suggested in oral
    argument, I think it is appropriate to give counsel the opportunity to make
    submissions as to the appropriate sentence at this point in time.  Counsel
    should arrange a conference call with me to address the form and timing of
    those submissions.

Released: DD NOV 12 2013

Doherty J.A.

I agree S.T. Goudge J.A.

I agree E.A. Cronk J.A.

I agree R.A. Blair J.A.

I agree M. Tulloch J.A.





[1]
Immediately before the
    respondent testified, the trial judge allowed his counsel to be removed from
    the record.  The respondents evidence was very brief.



[2]
The mitigating features
    of the respondents personal circumstances are noted above, at para. 16.  I
    would observe, however, the absence of one key mitigating factor.  There is no
    evidence of any remorse or any sign of any realization by the respondent of the
    dangerousness of his conduct.  In the absence of that realization, the need for
    specific deterrence is arguably considerably higher.


