Monday, February 13, 2012

30-Year Old Caught In Act Of "Adolescent Preening"; Judge Overrules Manda-tory Minimum

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Smickle the perp was in a pickle. He was caught holding a loaded weapon when police burst in. Facing a mandatory 3-year minimum imposed by the federal Conservatives, an Ontario judge struck down the sentence, and in a fit of Charter righteousness called the sentence outrageous, abhorrent, and intolerable.

Why not just call it "excessive"?

The perp's act of brandishing a loaded weapon is downgraded to an act of "adolescent preening". He's 30 years old!  In a further attempt to spin the perp as a decent lad, the article goes on to note he "had no criminal record, held a job, has a young child and a fiancĂ©e and was working to finish high school." Apparently fathering a child out of wedlock passes for some form of accomplishment these days.

I agree with the judge that three years is too long a sentence, but I disagree with her tactic of over-riding the law. The sentence doesn't rise to the level of outrageous, abhorrent, intolerable or cruel. And incarceration is certainly not unusual.

Her act was in itself, in effect, an act of lawlessness -- something that Charter-empowered judges are prone to.

And that's the way the Ball bounces.

PS -- I'm open for opinions on all sides of this issue.

40 comments:

Anonymous said...

Lovely! We elect a Conservative government to protect us and crack down on crime only to have a criminal protected by a piece of liberal legislation called the “so called charter of rights and freedoms for criminals“.

thanks a bunch Mr. trudeau……….

Ed the Hun said...

Oh well, this is just the start of PM Harper taking on the liberal-friendly judiciary. It will be a long and protracted process for sure, but Mr. Harper, like he is 'cleaning' the federal civil service currently, will now have to dig out the bias and pro-liberal judiciary that has been allowed to exist for the last 30+ years.

Oh yes, I suspect that we'll next be hearing from the media about Harper interfering in the judiciary when he takes the judge's stupid ruling (based upon judicial activism only...how can SHE unilaterally decide that the 3 years is 'cruel'? Who made her Queen?).

I suspect that if Harper can't win this in the courts, then he'll enact the notwithstanding clause in order to be able to 'govern'...I suspect the judiciary soon will seen a whole rash of retirements and resignations...and all for the better.

Powell Lucas said...

It seems that some judges believe that only laws passed by the Liberals count.

Anon1152 said...

I saw a story about this earlier in the Globe and Mail. http://www.theglobeandmail.com/news/politics/in-a-challenge-to-ottawa-judge-refuses-to-impose-mandatory-sentence/article2336816/

I came to a different conclusion, but that's not surprising given our respective sources, and how differently the first paragraphs of each article frame the issue.

I found myself focusing on the fact that "the perp" (as you call him) was "brandishing a loaded weapon" alone in his friend's apartment, taking pictures of himself with his friend's weapon. (One need not be an adolescent to engage in "adolescent preening"; neither does one need to be a child to engage in acts considered childish).

From the National Post article (near the bottom):
"It took three smashes of a battering ram for a Toronto police tactical squad to burst into an apartment at 2 a.m. in 2009. Smickle happened to be spending the night at the apartment when officers came looking for his cousin. Smickle thought it was thunder. When officers burst in, he was on the couch in boxer shorts, tank top and sunglasses, a pistol in his left hand and a laptop computer in his right, apparently taking pictures of himself looking “cool,” court heard. The gun wasn’t his and police found other guns in the tenant’s bedroom, court heard."


The Globe article I first read notes this:
"Defence counsel Dirk Derstine and Jeff Hershberg argued that Mr. Smickle had no intention of threatening the police. Judge Molloy agreed, noting that Mr. Smickle, who is right-handed, was holding the gun in his left hand. She also observed that Mr. Smickle was so startled by the intrusion that he dropped both the gun and his laptop – hardly the act of a cool criminal who was primed to shoot the officers."

The judge did not try to "spin the perp as a decent lad". According to the Globe "she noted that Mr. Smickle was 'guilty of colossally bad judgment'"; she did did not at all exonerate him. She said that "a reasonable person knowing the circumstances of this case and the principles underlying both the Charter and the general sentencing provision of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable."

I think I can agree with that, and with her sentence-- notwithstanding the fact that I think that one should have some room to exercise bad judgement alone in a private residence at 2am in one's boxer shorts, without hurting anyone or trying to hurt anyone, without having to spend 3 years in prison as a consequence.

Moreover, I think it's outrageous to say that a judge exercising judicial discretion is "an act of lawlessness." It's an act of judgement. We need to make judgements about the law. The law doesn't enforce itself, nor does it interpret itself, nor can one law balance itself against any other laws it may conflict with. You may not like what decision the judge came to. And that's ok. We have higher courts to review these cases, and legislatures that can tweak the laws in response. I suspect that even the Supreme Court makes decisions you oppose. (They certainly make decisions that I disagree with). But to dismiss these decisions, decisions made within a well-established legal system with various levels of oversight-as lawlessness is, quite frankly, dangerous.

-anon1152

P.S.
I've been reading Hobbes again, and that may be influencing my thinking. That's not so much a disclaimer as an explanation.

BillM said...

Please note that the outrageous gun laws were passed by LIBERALS.

Anonymous said...

It's a mandatory sentence, enacted by Parliament. Remove her from the bench now.

Anonymous said...

there are no valid reasons why i should not be able to own a loaded handgun. i am very conservative and i say no to any sentence regarding weapons unless they are used to commit a crime. making it a crime to have one has always struck me a foolish and dangerous to personal frredom and safety.

Martin said...

I am a bit surprised by this as I assumed judges were to apply the law as written, and act objectively. This argument should have been made by defence counsel, or at least by a higher court.
I'm sure it will be appealed.

Anonymous said...

We don't have all the facts it seems -but- did his cousin get charged with anything?
Safe storage of a firearm requires that the owner (if lawful) control access to it, and not allow what appears to have happened here. Someone was acting stupidly, and we need more detail before making any further judgement.

Onslo

Terry said...

Are you suggesting the only good fathers are those who are married?

Anonymous said...

Your summary of the case omits some key details. This was not his apartment, but his cousin's and the weapons belonged to his cousin.

In fact, the police did not even bust open the door to get him but were actually looking for his cousin. He decided to stupidly pose with one of the guns in front of a webcam at the exact wrong time when the police came in.

He's 30, just finishing high school and has an adolesent mindset. He may not be the type of guy I want my daughter bringing home, but he obviously was not going to commit crimes. And as such shouldn't be treated like a violent criminal.

The reason I wouldn't just call it "excessive" is we are talking about a person's life here and I think the word you chose would minimize the effect of such a decision. Ask yourself how would you feel if you got put in prison for three years for something like this, would you say "oops, I guess the judge was a bit excessive" or would you perhaps use harsher language?

I think this is just the beginning of a mountain of court challenges in store for the Tories due to their omnibus crime bills, which is exactly what the critics were warning them about.

Anonymous said...

I guess we are going to find ouy who makes the Laws in this Country.

Pissedoff said...

I am fed up with know nothing, unelected judges making up the law. What is the point of having a government if some idiot can just make up the laws. They do not seem to realise that if they cannot uphold the law then why should anyone. I am sure most people could find something in the Turds charter of stupidity to get round any offence.

RkBall said...

Ed - "how can SHE unilaterally decide that the 3 years is 'cruel'? "

Judges are endowed with moral infallibility. Ever notice how Pope-like judicial pronouncements are?

Anonymous said...

So we have an immature 30 year old with a loaded gun in his hand.
Some guy in Ontario who used a gun to defend himself from arsonists trying to kill him is getting raked over the coals.
A store owner in BC shot a robber he is a bad guy also.
This preening immature man is just foolish?
This Judge does not like the law?
Too bad! Her job is to apply the Law not make it up, or only apply the penaltys she agrees with.
She Is Not The Queen, indeed.
Fire Her ASS.
The Charter? Is. A. Joke.
Florida had a problem with criminals and guns.
They solved it with mandatory sentances.
You have a gun you go to jail.
Cheers Bubba

RkBall said...

1152 - The judge did not try to "spin the perp as a decent lad".

I never said she did. The article did.

"one should have some room to exercise bad judgement alone in a private residence at 2am in one's boxer shorts, without hurting anyone or trying to hurt anyone, without having to spend 3 years in prison as a consequence."

Well said!

"Moreover, I think it's outrageous to say that a judge exercising judicial discretion is "an act of lawlessness." It's an act of judgement."

Hey, I score an "outrageous" -- did you really mean it, or are you just flattering me?! Of course it's an act of judgment, but to be lawful it must be based on lawful principles and precedents and not just personal distaste or preference -- which is all this judgment, notwithstanding the hyperbolic rhetoric, amounts to. It's like using personal judgment to conclude that the speed limit on the 401 is too low, therefore, I'm going to go 120.

My original phrase was lawful lawlessness. I edited out the lawful before posting. I understand what she did was legal, but it was in essence an act of personal whim, i.e., lawlessness.

RkBall said...

Martin - "This argument should have been made by defence counsel, or at least by a higher court."

Excellent point.

RkBall said...

Terry -- I'm saying that only married fathers are legitimate fathers and that to father children out of the covenantal commitments of marriage is immoral.

RkBall said...

Thank you, everybody, for your comments.

Anonymous said...

I agree that a Judge must follow the law.
I disagree that we can assume the man had innocent intentions
a loaded gun is a serious matter
we will never know the true intent
Why was it necessary to take a picture with the gun loaded?
could suicide have been on his mind?
just thinking
fh

Guffman said...

I agree with many here - the judge is suppose to sentence according to the laws in place... in this case, to a mandatory three year term. During sentencing she could say she doesn't agree, and encourage the defendant and his lawyer to appeal to a higher court.
While this sentence may seem harsh, and probably is in this case, there are going to have to be examples like this that will help make everyone aware that if you mess with firearms in ways you shouldn't, you'll face a minimum penalty - period. This will make future "adolescent preeners" think twice about handling loaded weapons where they shouldn't be.
And lets face reality... Leroy Smickle is at his cousin's place who is obviously wanted for some serious charge for police to be breaking down his door, and he's hanging out with this character and playing with a loaded gun on the couch... doesn't exactly sound like a role model Dad, or someone who could be very far away from doing more stupid things in his life (if he hasn't already and just not been caught). He was in "the wrong place at the wrong time" because he PUT himself there. If you're going to act stupid and hang out with other stupid people (criminals), don't be too shocked when end up facing jail time.
This judge should be suspended from the bench.

Anonymous said...

great post by Anon1152. informed and well formulated...touching on all the outstanding points in the article. great stuff.

Anon1152 said...

"Hey, I score an "outrageous" -- did you really mean it, or are you just flattering me?!"
-- OK: I admit, I may have indulged in a bit of hyperbole there. I was looking for the right word, and the word "outrageous" was already there, quoted, in front of my face. Truth be told, I am not outraged.


"It's like using personal judgment to conclude that the speed limit on the 401 is too low, therefore, I'm going to go 120."
-- I think most of us go at least 120 anyway. But I don't think this is really analogous. The judge isn't saying that the law about possessing dangerous weapons should be changed (like changing the speed limit). She is objecting to the law insofar as it removes a judge's discretion in sentencing. It's about the appropriate punishment. And the guy is getting punished.

A more analogous analogy would involve the penalties for speeding. In some cases, I think a $10000 fine is probably excessive (though it is the law... at least according to those signs on the 401).


"I understand what she did was legal, but it was in essence an act of personal whim, i.e., lawlessness."
-- I don't think it was a whim. She explained her decision. One reason I judge's decisions,rather than jury decisions, is that the jury just needs to say "guilty" or "not guilty". The judge has to also explain why...

whim |(h)wim|
noun
1 a sudden desire or change of mind, esp. one that is unusual or unexplained : she bought it on a whim | he appeared and disappeared at whim.

Anon1152 said...

I think what I found most interesting is the difference in tone between the Globe article and the National Post article.

RkBall said...

1152 - OK, you got me on "whim". "Unjustified personal opinion" would be better.

If she had said I am striking this down because it is excessive and unjust, I would have agreed with her assessment if not her action. But she didn't do that. Her argument for justification fails.

RkBall said...

1152 -- If you've ever been involved in an event that was reported by the media, you will know they never get it right. I agree about the two views expressed in NP vs. G&M.

Anon1152 said...

The full judge's decision is here:
http://www.canlii.org/en/on/onsc/doc/2012/2012onsc602/2012onsc602.html

I haven't read it carefully.

I just realized that I've been procrastinating, and should do my required readings while I have the chance.

This has been an interesting discussion though.

Thanks for bringing it up!

-anon1152

RkBall said...

1152 - thanks for contributing.

mandatory reading -- what is that -- are you studying something -- philosophy, maybe?

Anon1152 said...

I'm a graduate student. I study political philosophy. (At least when I'm not on the internet... I like to think that stuff like this is still somewhat relevant)

Terry said...

"I'm saying that only married fathers are legitimate fathers and that to father children out of the covenantal commitments of marriage is immoral."

Well I'll give you "legitimate" in a traditional sense pertaining to inheritance, or royalty, but from a secular atheist standpoint, I fail to see your moral issues. Do you have any stats that "live together" couples are any less likely to stay together than married ones? I personally know more unmarried happy couples with kids, (and divorced parents with joint custody) than couples who have stay married until the kids left the nest. And many of the married ones are the most miserable and complain privately. But whatever, you are entitled to your opinion, however unjustified as it may be.

But did you even consider that this guy perhaps wanted to get married and the woman said no? Wow. You presume much without knowing the facts. Ever hear of, "Judge not, that ye be not judged"?

RkBall said...

1152: Who is your favorite polphil author?

RkBall said...

Terry -- women who are living with a man without the covenantal commitment of marriage are much more likely to be abused, as are their children.

"But did you even consider that this guy perhaps wanted to get married and the woman said no? Wow."

The issue of marriage should have been discussed and settled before the act of procreating a child.

"Wow. You presume much without knowing the facts. Ever hear of, "Judge not, that ye be not judged"?"

Are you judging me?

Anon1152 said...

RK: My favourite(s) are probably Thomas Hobbes and Immanuel Kant.

Anon1152 said...

Though looking at your exchange with Terry, I'm now reminded of a quote from Michel Foucault (from a 1980 interview):

"It seems Courbet had a friend who used to wake up in the night yelling 'I want to judge, I want to judge.' It's amazing how people like judging. Judgment is being passed everywhere, all the time. Perhaps it's one of the simplest things mankind has been given to do. And you know very well that the last man, when radiation has finally reduced his last enemies to ashes, will sit down behind some rickety table and begin the trial of the individual responsible."

RkBall said...

1152: The persistent ingrained sense of right/wrong is one reason why I'm a believer. It's nonsensical under darwinism. Also, the desire, which you hint at, of ultimate justice being done (we really want there to be a hell so Hitler can go there). The Christian gospel gives the bright hope of ultimate justice being done, tempered with mercy for those who repent and call upon the name of the Lord.

When Jesus says "judge not", it is in the sense of to not condemn a person, not evaluate behavior. It is because we are all in the same boat as sinners -- some just more notorious than others. Jesus could rightly condemn us, but he doesn't -- that's grace!

Anon1152 said...

I think it is "sensical" under Darwinism: morality develops as an adaptation of some sort. That isn't necessarily incompatible with a theistic view. Or perhaps... I need to say that "a recognition of morality"--a morality that exists apart from us--comes through evolution.

Hypothetical question: if we discovered a nonhuman species that was sentient and sapient, as we are; if we could communicate with them, as we do with each other; if they were social creatures, with moral rules enforced by social hierarchies governing their interactions; if they were on this planet (for example, a species of whale or dolphin): would that throw your whole worldview into a tailspin? would you think that there is no God, and that the Gospel had no value? Or would you want to share the Gospel with this species?

"Save the whales" could become a call to save their souls, as well as their lives.

RkBall said...

"I need to say that "a recognition of morality"--a morality that exists apart from us--comes through evolution."

This puts you on the path to becoming a theist because if morality is something more than a human invention/fiction in a godless amoral universe or a darwinian burp of no more actual significance than a, well, burp, there must be a moral source that grounds the existence of actual, objective morality.

RkBall said...

"would that throw your whole worldview into a tailspin? would you think that there is no God, and that the Gospel had no value? Or would you want to share the Gospel with this species?"

Tailspin - absolutely positively not. My faith rests on the resurrection of Christ, which would have happened regardless of anything else. Would I share the gospel? How could I? The extent of the gospel is that God became man -- human -- and died for our sins and the fallen state of this world. I would have no mandate to preach the gospel to them. I could preach the love of God and the supremacy of Christ to them and urge them to love and seek their Creator.

Great question.

Anon1152 said...

http://bible.cc/galatians/3-28.htm

I don't suppose we could "read in" something about their being "neither human nor whale"?

Though the Covenant with Noah does seem to include non-humans:
http://niv.scripturetext.com/genesis/9-8.htm

RkBall said...

Good point. The apostle Paul says that the entire creation is under the curse of the fall, and shall be redeemed. He says it currently "groans" awaiting its liberation. So, God's covenant is with man and creation.

"... nothing intellectually compelling or challenging.. bald assertions coupled to superstition... woefully pathetic"