Smile for the webcam ...

If you're Canadian, that Facebook pic could land you in the slammer for three years

Non-Violence by Hakan Dahlstrom.
http://www.fotopedia.com/users/hakandahlstrom 

Across Canada, most lawyers and judges oppose Bill C-10.

Why?

Because it is a nutty law passed by a cynical government (my words, not theirs.)

There has been much written about this ridiculous tough-on-crime stuff, most recently an excellent piece in the Globe and Mail by Robert Everett-Green (you can read it here: http://www.theglobeandmail.com/news/politics/law-and-disorder-what-bill-c-10-could-mean-for-canadas-native-people/article2342832/page1/ )

Among the ridiculous provisions of C-10 is the imposition of mandatory minimum sentences, a punitive, thoughtless and expensive approach that hasn't been effective in reducing crime in any jurisdiction that has used it.

It often results in years-long jail terms for impulsive, but otherwise decent young people who did something stupid. If the facts of the case were considered, society would often determine jail wasn't the place for these people.

But the new law takes away a judge's discretion or consideration of the facts. It just fires the convicted off to a cage, where they often become worse criminals at a cost to the taxpayer of about $110,000 a year.

And that unlucky youngster might be your son. Or daughter.

Take the recent case of Leroy Smickle.

On March 9, 2009, the 27-year-old Smickle did something really dumb.

For some reason, he decided to take a new profile picture for his Facebook page. So he reclined on the couch before his computer clad in his boxers, a white tank top, sunglasses and a loaded firearm.

Smickle had been staying with his cousin Rojohn Brown.

Brown was at a nightclub partying. Smickle didn't go clubbing because he had to work the next morning.

Which is why he was sitting in Brown's living room taking his ridiculous new profile picture when the cops busted in.

They were looking for Brown, and had a search warrant to look for suspected illegal firearms in the guy's apartment.

When they broke down the door, instead of the partying Brown they found Smickle in his undies holding the laptop in his right hand while posing with the pistol in his left. When the door smashed open and the cop's flashbang went off, Smickle dropped the laptop and the pistol.

He was arrested and charged with various gun-possession offences.

The Crown argued the gun was Smickle's. But there is no evidence to substantiate that claim, according to Judge J. Molloy.

Smickle was never on the police radar, she wrote. Brown was the tenant in the apartment and the person who was believed to own illegal firearms.

"The most likely explanation, given the information about Mr. Brown and the other guns found in the apartment, is that Mr. Smickle found the gun somewhere in the apartment and took that opportunity to 'show off' with it for the benefit of his friends on Facebook."

While the gun was loaded, he never threatened police with it. And it is unlikely he loaded the gun in the face of the police entry, as he was holding the laptop in his dominant right hand and the gun in his left.

Smickle had a job as a cleaner, was studying to get the remaining credits of his high school diploma. He had looked into becoming a correctional worker, but that was screwed up by these charges.

He was engaged to be married to a woman he'd been with for three years. He has two children from previous relationships and has a excellent relationship with his four-year-old daughter.

He had no criminal record, beyond a speeding conviction.

A pre-sentence report recommended Smickle for community supervision on the condition he continue his high school courses and employment.

But Molloy's hands were tied by Ontario's tough-on-crime laws.

If you possess a loaded prohibited firearm, a first offence will land you in jail for three years.

Smickle's stupid Facebook pic had landed him three years in jail.

Except Molloy decided such a decision would be cruel and unusual punishment in Smickle's case.

He did not possess the gun in the presence of anyone else and did not endanger the public.

He was guilty of adolescent preening, but the "circumstances of this case put it at the lowest end of the scale of conduct constituting the offence," she wrote.

And, luckily for Smickle, she's a clever judge.

She invoked the Canadian Charter, and, at the end of her 43-page well-considered decision, which cites much very heavy case law, sentenced the Facebook-preening felon to five months to be served conditionally in the community, after crediting him seven months for time served and spent on bail. (You can read it here: http://www.cbc.ca/news/pdf/R%20v%20SMICKLE%202012%20ONSC%20602.pdf)

To me, given the circumstances, it seems a good decision. I certainly don't want this dunderhead locked up for three years. And I certainly don't think spending $330,000 on the guy is a good use of public funds.

But not everyone will be as lucky in the future.

Sure, you think you're immune, that your children are better than guys like Smickle. And most are. But mistakes happen in a minute. And, in the face of mandatory minimum sentences, momentary stupidity could erase 20-odd years of good citizenry.

If it happened to my child, I'd want a judge like Molloy to consider all the relevant facts before rendering a fair judgement.

Bill C-10s mandatory minimum rules prevent that.

If it passes third reading in the House of Commons, we're going to see plenty of new cases like this.

And that's but one of many reasons why the Senate should suggest a major retooling of this expensive, regressive and, ultimately, unjust law.

(We'll outline others as we can.) R.M.