Mandatory Minimum Sentences, the Privilege Against Self-Incrimination, and the SCC’s Decision in D.A.I.

Cruel and Unusual Punishment?

An Ontario judge struck down the mandatory minimum sentence for possession of a loaded gun on Monday in The Crown v Smickle, 2012 ONSC 602. Justice Molloy found that the minimum 3 year sentence for a first time offender is “cruel and unusual punishment.” She classified the sentencing provision as unconstitutional.

The mandatory minimum gun law came into force as part of the Conservative government’s Tackling Violent Crime Act, SC 2008, c 6. Harper’s omnibus crime bill, Bill C-10, is taking a similar approach. The timing of this decision is impeccable – the Harper government is pushing out a tough crime bill. The actions of the court are out of sync with what is happening in Ottawa.

Leroy Smickle was posing with a loaded restricted firearm on Facebook while alone at his cousin’s apartment at 2 AM on March 9, 2009. He was holding the gun in his undergarments, attempting to look “cool.” Unfortunately for Smickle, members of the Toronto Police Emergency Task Force burst in and executed a search warrant for Smickle’s cousin on suspicion of a firearm. The suspicion was correct, though they caught the wrong individual red-handed.

In Molloy J’s words, “A reasonable person knowing the circumstances of this case, and the principles underlying both the Charter and the general sentencing provisions of the Criminal Code, would consider a three year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable.”

She found that this sentencing provision conflicts with section 12 of the Charter, which provides that “Everyone has the right not to be subjected to cruel and unusual punishment.” As the court has found on multiple occasions, laws inconsistent with the Charter to the extent of inconsistency are of no force and effect if they cannot be saved under s.1.

Brendan Crawley, spokesman for the Ontario Ministry of the Attorney General stated that the Crown will review the decision to determine any next steps the province will take. This ruling is sending waves through Parliament as Bill C-10 is being scrutinized, and it may very well foreshadow the judicial backlash in determining the constitutionality of the proposed Bill C-10.

Privilege Against Self-incrimination Under Fire

The Supreme Court of the United Kingdom has granted leave to appeal to Glenn Mulcaire, who was ordered by the highest ranking judges on the Court of Appeal two weeks ago to reveal whose instructions he was following when he hacked the voice mails of Steve Coogan and Nicola Phillips.

Mulcaire had argued that his common law privilege against self-incrimination in court allowed him to deny requests to reveal confidential information. News of the World, a weekly British paper with one of the highest circulations in the world, came under fire last year after it was revealed that many of its reporters had paid private investigators, including Mulcaire, to intercept private phone calls.

The privilege against self-incrimination is also known as the right to silence in the UK, and dates back to as early as the 17th century as a defence in criminal proceedings. It does not go so far as to preclude adverse inferences a trier of fact can make based on silence.

If questioned, Mulcaire would be forced to reveal information regarding the type of work he was contracted for, who made the requests, and the means he used to illegally access the private information, all of which could contribute to grounding liability for himself and anyone else involved. At least ten editors from the paper have already been taken into custody regarding this and related matters, and Rupert Murdoch, founder and CEO of News Corp. (which owns News of the World) has testified on his involvement and knowledge of the activity.

The Court of Appeal granted a stay on the enforcement order, subject to further guidance from the Supreme Court. The hearing is scheduled to begin May 9.

Mentally Disabled Regain their Voice

The SCC struck down an archaic provision in the Canada Evidence Act, RSC 1985, c C-5, in R v DAI, [2012] 1 SCR 149. This provision established restrictions against testimony of the mentally handicapped, allowing defendants to challenge the competency of the plaintiff. The court found the provision contrary to the protections afforded to all citizens under section 15 of the Charter.

K.B., a 26 year-old woman with the mental age between 4-6 years of age, had alleged that she had been sexually assaulted by her mother’s boyfriend. Her evidence was excluded at trial on the ground that she was incapable of competent testimony and that she could not distinguish between truth and falsity. The accused was acquitted and the judgment was upheld by the Ontario Court of Appeal two years later.

The Majority, led by McLachlin CJC, explained that the trial judge and Court of Appeal made an error in law interpreting the provision. She then went onto say that preventing testimony simply because the mentally disabled cannot explain the nature of the obligation to tell the truth would exclude “reliable and relevant evidence and make it impossible to bring to justice those charged with crimes against the mentally disabled.” In contrast, Binnie J dissented writing that the majority dilutes the rights of the accused to a fair trial.

While the test she must satisfy to prove the veracity of her testimony is at a higher standard than other witnesses, as dictated by the court, K.B. will have her voice heard. The testimony of the mentally disabled will finally be “equal before and under the law” as it should have been since the completion of the Charter.