Billions of dollars invested, not a penny lost.

CRISTIN SCHMITZ OTTAWA

A novel decision striking down the three-year mandatory minimum sentence for possession of illegal firearms could herald the first judicial pushback against the raft of mandatory minimum penalties emanating from Parliament, says the criminal defence lawyer who won the case.

If Ontario’s Superior Court’s decision in R. v. Smickle is upheld on appeal, “it may well have an impact on other mandatory minimums,” predicted Dirk Derstine of Toronto’s Derstine Penman.

“It is certainly a very, very
important trial decision,” he said
in an interview. “It injects a differ-
ent kind of note into the debate
than was present before. I’m not
aware of any other mandatory
minimum provisions that have
been struck in [recent] years
across Canada, and certainly
nothing to do with firearms.”
On Feb. 13, Superior Court
Justice Anne Molloy ruled that
the three-year mandatory min-
imum penalty for the hybrid
offence of first-time, illegal pos-
session of a loaded restricted or
prohibited firearm (prosecuted by
indictment) is irrational and arbi-
trary, and amounts to cruel and
unusual punishment in violation
of ss. 7 and 12 of the Charter.

She went on to sentence Leroy Smickle to a five-month conditional sentence, on top of the seven months he spent on bail and incarcerated pretrial.

Justice Molloy said the 27-year-old, first-time offender displayed “colossally bad judg-

Decade-long dispute
over former fortress

PAGE 10

See Pushback Page 8

THE LAWYERS WEEKLY

Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION

Court
tweaks

NOLO CONTENDERE December 6, 2002
Is the ‘no contest’ plea
a door best left closed?

PAGE 14

rulebook

THE LAWYERS WEEKLY

CRISTIN SCHMITZ OTTAWA

The Ontario Superior Court has begun exploring in-depth the contentious issues surrounding the use of Twitter and other micro-blogging services in trial courts with an internal report that could lead to guidelines later this year.

VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
Reputations can come
crashing down in the
wink of a digital eye

The report, “Twittering in the Courtroom,” was prepared by tech-savvy Justices Frances Kiteley and Thomas Heeney. Distribution to the court’s 315 trial judges began earlier this month. In the report, a copy of which was obtained by The Lawyers Weekly, they outline for purposes of discussion the arguments that can be made for and against the use of Twitter and the like in court.

ROY GROGAN FOR THE LAWYERS WEEKLY

Lawyer Howard Krongold, seen here in the Ottawa Courthouse, worries about what he sees as the rights of the accused fading in the face of other parties’ interests. The Supreme Court has set aside his client’s acquittal and ordered a new trial.

GUANXI
A bribe or just part
of doing business? Split underpins new trial order

high a standard for competency.

CRISTIN SCHMITZ OTTAWA

for D.A.I., who was accused of repeatedly sexually assaulting his mentally disabled stepdaughter:

THE LAWYERS WEEKLY

Judges have been asked to pro-
vide feedback by Aug. 31, at which
time the Chief Justice’s Superior
Court of Justice IT Committee will
analyze the responses to deter-
mine whether a permanent default
position should be recommended
to the court. Any policy adopted
will start from the premise that it
Exposing again a deep philo-
sophical divide in criminal law,
the Supreme Court has split 6-3
on making it easier for mentally
disabled adults to give unsworn
testimony in sexual assault and
other criminal trials.

R. v. D. A.I.

She held that a mentally disabled adult need not “ demonstrate an understanding of the nature of the obligation to tell the truth. All that is required is that the witness be able to communicate the evidence, and in fact promise to tell the truth.”

VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002

See Position Page 3

Led by Chief Justice Beverley
McLachlin, on Feb. 10 a six-
judge majority set aside the
acquittal and ordered a new trial
The case against him collapsed
in 2008 after the trial judge held
that the 22-year-old complainant,
with the mental age of a three- to
six-year-old, was incompetent to
testify because she failed to dem-
onstrate that she understood her
obligation to tell the truth.

STB_LW_basebar_09_ 11_Layout 1 9/1/11 4:55 PM Page 1

Chief Justice McLachlin ruled
that the courts below set too
That holding was decried by
Justices Ian Binnie, Louis LeBel
and Morris Fish, the judges on
the court most apt to robustly

See Testimony Page 8

PUBLICATIONS MAIL AGREEMENT NO. 40065517

tweets

DAMAGE CONTROL

PAGE 20

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