Toronto firearms cases have become the tipping point in the battle over Prime Minister Stephen Harper’s “tough on crime” regime.
While the Supreme Court considers whether it will take on a case challenging mandatory minimum sentences for gun possession, courtrooms in Toronto have become ground zero for the battle over Prime Minister Stephen Harper’s “tough on crime” regime.
David Kawal and his defence lawyer Saman Wickramasinghe recently stood before Superior Court Justice John McMahon to argue for a lenient sentence on eight charges, including possession of a firearm where ammunition was easily accessible.
“I’m really sorry for my foolish actions,” Kawal, who was 19 at the time of his offences, told the court.
Earlier he pleaded guilty to nine of the charges against him. He told the judge he’s trying to complete his high school GED. His young daughter could be heard crying in the hall outside the courtroom doors.
Until last year, none of that would have mattered — could have mattered — to a judge when it came to keeping offenders out of jail.
In 2008, Harper’s Conservative government imposed a mandatory three-year minimum sentence for first offenders found guilty of having a prohibited firearm with ammunition. For repeat offenders, the minimum sentence is five years.
But last November the Ontario Court of Appeal ruled these minimum sentences were “unconstitutional” — the first appeal court in Canada to do so — after hearing six appeals grouped together.
On Jan. 8, the Crown filed leave to appeal the case against Toronto man Hussein Nur — the lead case in the appeals bundle — to the Supreme Court, where a decision could change the law across the country.
In the meantime the Ontario appeal court’s ruling has left sentencing in such cases in a legal limbo, effectively striking the mandatory minimum down as lawyers in the province use the decision as a weapon in court. Nur, they say. Remember Nur.
Wickramasinghe cited the Nur case as he argued that the facts of Kawal’s case put him at the lower end of the spectrum for sentencing and that he deserved to stay out of prison.
“The Nur decision releases the handcuffs on the sentencing judge’s discretion,” he said outside court. “There’s a myriad of circumstances that an accused might find themselves in … What a judge can now do is take that into account.”
Last week the Court of Appeal also resentenced Leroy Smickle, another Toronto man who was posing for a Facebook photo with a loaded handgun when police raided his cousin’s apartment in 2009. His was one of the six cases first heard by the court on this issue.
In 2012 a trial judge sentenced him to a one-year conditional sentence. Justice Anne Molloy said the mandatory minimum infringed Smickle’s Charter rights. The Crown appealed her ruling but the appeal court decided the sentence was “totally inadequate.”
On Wednesday, however, the court said a two-year sentence would have been more appropriate. But since Smickle had already served the original sentence, the court stayed the new sentence, saying he should spend no more time in jail.
“He works two jobs, is developing his own business, has a stable loving relationship with his fiancée, and a close relationship with his two children from earlier relationships. He supports both children financially,” the court’s decision read. “The community is best protected if the respondent continues along the rehabilitative path that he has followed in the five years that he has been before the court.”
Smickle’s lawyer, Mark Halfyard, said his client was stuck in the “constitutional vortex” for five years as lawyers argued for the mandatory minimums to be struck down.
“This is a guy that would have got the three years,” he said. “Five years later … and he’s turned his life around.”
Anthony Moustacalis, president of the Criminal Lawyers’ Association, said the Smickle decision shows the courts have typically been “tough on guns” and don’t need work under mandatory sentences.
“There was no need to take discretion away from the judges. There was no rash of unreasonableness from the bench,” he said in an email.
Defence lawyer Dirk Derstine, who represented Nur, said the tougher sentences represent an “Americanization” of the process at a time when even the U.S. is backing off stricter laws.
“Nur was a kid with no criminal record,” he said. “Why is society better off for taking him from his family?
Derstine said there is a good chance the Supreme Court will hear the Nur case because of its national implications.
As for Kawal, he will learn on Tuesday what the judge has decided for his future.