Law Times

Law Times ��� February 25, 2013 Page 3 NEWS Special 5-judge panel hears firearms appeals Cases include one-year sentence for man who confronted trespassers BY SHANNON KARI For Law Times A mong the six cases the Ontario Court of Appeal heard concurrently last week involving challenges to the mandatory minimum penalties for firearms was an appeal with a very different factual scenario. Frank Meszaros is asking the appeal court to quash the oneyear jail sentence the 64-year-old businessman received for firing his shotgun into the air after confronting two people fishing in his privately stocked trout pond. Meszaros��� lawyer, Timothy Breen, described the mandatory minimum as ���grossly disproportionate��� to the offence in arguments filed with the appeal court. Rather than an act of selfdefence, the shot fired by Meszaros ���was an unacceptable use of a firearm while committing an assault,��� responded Crown attorney Frank Au in his written arguments. In the other proceedings before the special five-judge panel of the Court of Appeal, the accused have past criminal records and were convicted of handgunrelated offences. Meszaros, who owns a management consulting firm, was 60 years old at the time of his arrest in 2008 after an incident on his property. The jury at his trial heard Meszaros went out to the trout pond he stocked on his property near Brantford, Ont., after his wife told him two men were trespassing and fishing there. When the two men started to run away, Meszaros fired a single shot from his legally owned shotgun, court heard. One of the men crossed the creek while the other fell and was ordered by Meszaros to stay on the ground. The two men later complained to police, who arrested Meszaros. A jury convicted him of using a firearm while assaulting one of the men and acquitted him of assaulting the other trespasser. Superior Court Justice Harrison Arrell imposed the minimum one-year term required under s. 85 of the Criminal Code for the use of a firearm while committing an indictable offence (the assault conviction was for openly carrying a weapon to impede or accost another person). Meszaros also received probation for two firearm storage offences. The Crown argued the jury was correct to reject claims of citizen���s arrest and defence of real or personal property. ���The appellant saw two young men fishing at his trout pond, uninvited. Instead of calling the police or engaging them in a peaceful manner, the appellant used his loaded shotgun to ���intimidate��� them and teach them a lesson,��� said Au in his written arguments. The predecessor to s. 85 of the code, which carried a minimum of one year in jail for the use of a firearm while committing an indictable offence, dates back to 1977, noted Au. The provision has ���survived constitutional scrutiny for three decades,��� he added. For the one-year sentence to be ���grossly disproportionate,��� it must be ���so excessive as to outrage standards of decency,��� the Crown argued. The trial judge concluded Meszaros exercised ���incredibly poor judgment��� in bringing out the shotgun, said Au. As well, the fact that he���d be eligible for parole after four months in custody ���serves to mitigate against the harshness��� of the sentence. Breen countered that the evidence suggested Meszaros fired his shotgun to seek the return of his fish and neither struck the trespassers nor caused them bodily harm. ���The appellant was legally justified to take action to secure the return of his property,��� wrote Breen. Even if the force used was unlawful, Breen suggested that since there was justification for some force, Meszaros��� ���moral culpability��� was minimal. The one-year jail term amounts to ���cruel and unusual punishment��� and violates the Charter of Rights and Freedoms, stated Breen. ���The appellant is a first offender with an unblemished character and a lifetime of achievement. Incarceration is unnecessary to ensure the appellant���s good conduct and will result in considerable hardship,��� wrote Breen, who asked the Court of Appeal to overturn the convictions and enter acquittals. Justices David Doherty, Stephen Goudge, Eleanore Cronk, Robert Blair and Michael Tulloch made up the panel. In addition to the arguments in Meszaros��� case, the court heard five other appeals related to mandatory minimums and sentencing of firearms offences: ��� After police found him posing for a photo with a loaded handgun just as they were raiding a residence, the court convicted Leroy Smickle of illegal possession of a prohibited firearm. Superior Court Justice Anne Molloy struck down the threeyear mandatory minimum as violating the Charter. ��� Hussein Nur pleaded guilty to possession of a loaded prohibited firearm. Superior Court Justice Michael Code dismissed the Charter challenge in part because he would otherwise have imposed a 30-month sentence that wouldn���t be grossly disproportionate to the threeyear minimum. ��� Matthew Rocheleau received an eight-year sentence for his role in several grocery store robberies. On at least one occasion, he had a revolver-style pellet gun. The trial judge imposed some of the sentences consecutively. ��� Ian Chambers got six years for his third conviction for possession of a restricted firearm. Superior Court Justice Jane Kelly imposed another two years consecutively for breach of firearm probation orders. She rejected the Crown���s call for a total sentence of more than 13 years in prison. ��� Sidney Charles received a five-year sentence for his second illegal handgun conviction. Superior Court Justice Nancy Backhouse ruled the mandatory minimum for the second conviction didn���t breach the Charter. LT Sure, we could tell you that our client was awarded the largest personal injury judgment in Canadian history and that all our principal partners are past-presidents of the Ontario Trial Lawyers Association. We could also mention that our ���rm was voted top ���ve in its ���eld in Canada and that we have a ���ve out of ���ve preeminent peer review rating from Martindale-Hubbell. All those achievements and honours don���t just happen. They���re the result of the way we work and the way we care for our clients. Don���t take our word for it... ask around. When you know someone with a personal injury case, call the lawyers that lawyers recommend most. Ask about our competitive referral fees. ��� A Noticeable Difference TORONTO I BARRIE I HAMILTON I 1-866-685-3311 I www.mcleishorlando.com Untitled-5 1 www.lawtimesnews.com 13-02-06 1:45 PM

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