Court to decide key gun case appeals
Future of mandatory terms at stake
The case of a robber who ambushed employees of an Ottawa grocery store with a pellet gun is among six cases to be decided Tuesday by Ontario’s Court of Appeal in what could be a landmark decision on the constitutionality of mandatory minimum sentences for gun crimes.
The stakes are high for the Conservative government’s justice agenda, since a decision finding the sentences unconstitutional would effectively strike down the sentences in Ontario.
But no matter what the Ontario appellate court decides, all roads lead to the Supreme Court, said Kent Roach, a University of Toronto professor and Prichard Wilson Chair of Law and Public Policy.
“If the government loses tomorrow, I expect that they will appeal very quickly to the Supreme Court,” said Roach, since the federal government is “obviously committed to mandatory sentences” and the Supreme Court has sent strong signals that mandatory minimum sentences are a matter for Parliament to decide.
However, a decision upholding the constitutionality of the mandatory minimums for gun crime is equally likely to end up in the country’s highest court given the mounting criticism by judges and other legal experts to their validity.
The panel of five Ontario Appeal Court judges is considering six cases, including that of Ottawa grocery store robber Matthew Rocheleau.
Rocheleau was 24 years old when he pleaded guilty to two dozen charges following a series of daring robberies from October 2008 to March 2009. Five of the charges carried mandatory minimum sentences.
Rocheleau mostly acted as the getaway-car driver during the robberies, in which Rocheleau and two accomplices targeted Ottawa grocery stores. But in December 2008, a masked Rocheleau, who was carrying a revolver-style pellet gun, and an accomplice armed with a rifle dropped through a roof hatch and confronted four employees.
The robbers secured three of the victims with duct tape, then made the fourth disarm the security system. They fled empty-handed, though, after
It fails to distinguish between people who possess firearms for a criminal purpose and people who have not complied with the licensing or registration scheme
SOLOMON FRIEDMAN, OTTAWA DEFENCE LAWYER
thinking they had spotted an unmarked police car.
Rocheleau pointed the gun at no one, but the Ottawa judge hearing the case found that the eight-year mandatory minimum prison sentence prescribed by law didn’t amount to cruel and unusual punishment. Rocheleau’s lawyer argued that the “ridiculous” eight-year sentence was grossly disproportionate to what the first-time offender would otherwise receive.
Ontario Court Justice Jack Nadelle found that a five- or six-year prison term would have been appropriate for the Algonquin College student from Smiths Falls, Ont., but concluded that most Canadians wouldn’t find the eight-year term abhorrent and upheld the mandatory minimums.
The court of appeal is also ruling on the high-profile case of Leroy Smickle, a Toronto man who faced a mandatory minimum three-year sentence for what a judge found was “adolescent preening” with a loaded firearm for a Facebook photo. The judge found that the mandatory sentence amounted to cruel and unusual punishment given the circumstances.
Justice Anne Molloy concluded the minimum sentence was “fundamentally unfair, outrageous, abhorrent and intolerable.”
Solomon Friedman, an Ottawa defence lawyer who specializes in firearms law, said he sees two critical problems with the law.
“It fails to distinguish between people who possess firearms for a criminal purpose and people who have not complied with the licensing or registration scheme,” said Friedman. “There is a difference between a gang member who possesses a gun in order to further criminal enterprise and somebody who is simply technically in illegal possession of the firearm.”
The second problem, said Friedman, is the gap between sentences for those who are charged summarily and those who are charged by indictment. Someone who is charged summarily for an offence such as possession of a firearm with readily accessible ammunition faces a oneyear maximum sentence and no minimum, while someone charged by indictment for the same offence faces a threeyear mandatory sentence.
What has been happening, according to Friedman, is that the Crown has proceeded almost exclusively by indictment when it comes to gun charges.
Friedman said the Supreme Court has been clear that mandatory minimum sentences have been found to be constitutional, and there hasn’t been a successful cruel-andun usual punishment challenge for decades.
The Supreme Court last struck down a seven-year mandatory minimum sentence for importing narcotics in 1987, but has upheld minimum sentences since. Roach suspects the government is receiving legal advice that so long as the mandatory minimum is less than seven years, it won’t be overturned.
Roach said it’s possible that in some of the six cases Ontario’s Appeal Court might not deal with the mandatory sentence issue directly and instead deal with the specific aspects, such as whether consecutive mandatory minimum sentences — such as the ones imposed on Rocheleau — violate the charter or the totality principle of sentencing should still apply.
“They may find a way to provide a remedy for an individual in one of the cases or more of the cases but the big issue that only really the Supreme Court can decide is basically whether any mandatory sentence below seven years is Charter proof,” said Roach.