Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Canada's position on man's refugee status incongruent I n many ways, Muhsen Ahmed Ramadan Agraira's application for ministerial relief from the inadmissibility provisions of the Immigration and Refugee Protection Act is a poor case for test- ing the law. As Michael McKiernan reports on page 11 this week, lawyers are hoping for clear guidance on the issue when the Supreme Court of Canada rules on Agraira's case. They're concerned that applications for ministerial relief are taking too long and have almost no chance of success, as evidenced by Agraira's long battle to stay in the country. After fleeing Libya in 1996, Agraira claimed refugee status on the basis of his membership in a Gadhafi opposition group, the Libyan National Salvation Front. But since there was evidence the group had engaged in terrorism in an attempt to overthrow a government, an immigration officer told Agraira he was inadmissible under the act. He then sought ministerial relief from the inadmissibility provisions, which former public safety minister Peter Van Loan rejected in 2009. "There is clear evidence that the LNSF is a group that has engaged in terrorism and has used terrorist violence in attempts to overthrow a government," Van Loan noted in his list of reasons for rejecting Agraira's application. What's interesting, of course, is that the Canadian government has since then played a significant role in activities that led to the end of the Gadhafi regime in Libya. So while the Federal Court of Appeal, in ruling in Agraira's subsequent litigation on the matter recently, noted Van Loan was applying the law as it applies to his duty to consider the national interest within the context of public safety, it's incongruent — at least in hindsight — for the government to reject his application COMMENT March 5, 2012 • Law TiMes on the basis of his connections to an anti-Gadhafi group when it sent its own military to Libya in an effort to protect citizens fighting the regime there. Agraira's case has several problems. As the appeal court noted, he has alternated between emphasizing his LNSF activities and downplay- ing them depending on the circumstances. At the same time, the court repeatedly pointed out that the law is on Van Loan's side. But given the overall optics of the case, it's clear that it requires more analysis and consideration. If it's legitimate for the Canadian government to participate in activities that ultimately led to the overthrow of a regime, it was potentially acceptable for Agraira to fight his government as well. To what extent the LNSF, and Agraira as an individual, engaged in terrorism and violence are further questions for consideration. The Supreme Court's guidance, then, will be welcome. Let's hope it includes some analysis of where to draw the line between legitimate activi- ties against a dictatorial regime and terrorism. — Glenn Kauth mum sentence for possession of a load- ed restricted firearm. The accused, Leroy Smickle, had I by been striking a cool gangster pose in his cousin's apartment. Reclining on the couch and sporting sunglasses with a loaded gun in his left hand and his laptop in his right hand, Smickle used a webcam to upload his photo to Facebook. His timing couldn't have been worse. There was a loud noise at the door. Was it thunder? Was it the police? Suddenly, the police broke down the door. Smickle dropped the gun and the laptop. Police had caught him with a loaded gun. Smickle, employed and with no criminal record, has become the post- er boy for the injustice of a three-year mandatory minimum sentence. Under s. 95, if the Crown proceeds summary conviction, the maxi- mum sentence is one year. But when it proceeds by indictment, Molloy held that the sentencing gap offends s. Law Times LT Masthead.indd 1 n her witty, well-written judgment in R. v. Smickle, Superior Court Justice Anne Molloy struck down the three-year mandatory mini- 7 of the Charter of Rights and Freedoms. The hybrid regime is arbitrary and doesn't permit any sentences between one and three years. The mandatory sentence is also grossly disproportion- ate and therefore violates the s. 12 protection against cruel and unusual punish- ment. Neither infringement is demonstrably justified in a free and democratic society under s. 1 of the Charter. The appropriate remedy was to strike down s. 95(2) and impose a fit sentence. The effect of striking down the man- datory minimum is that sentencing for the possession of loaded prohibited or restricted firearms or possessing them with readily accessible ammunition is now open to judicial discretion in Ontario. However, the ruling doesn't minimize the seriousness of gun offenc- es as the fit sentence for Smickle was one year. Molloy based this on his lack of co-operation and not pleading guilty. Molloy hasn't retreated from her position in R. v. Ferrigon, in which A Criminal Mind Rosalind Conway she recognized the dangers of loaded guns. "A person who carries a loaded hand- gun in public has demon- strated his willingness to shoot another human being with it," she wrote. But pos- session of a loaded gun, she noted, isn't always a violent offence. However, she ruled in Smickle that even when the accused doesn't own the weapon and doesn't have it for a nefarious purpose, a deterrent sentence is still in order. Last year, the court upheld the man- datory minimum on vastly different facts. In R . v. Nur, Hussein Nur was out- side the Driftwood Community Centre in Toronto's Jane and Finch neighbour- hood when the police arrived to investi- gate a call. Nur fled and while running tossed the loaded handgun he was hold- ing under a vehicle. Although he pleaded guilty and was only 19, these were aggravating circum- stances. Justice Michael Code consid- ered Nur's conduct worthy of a sen- tence of 2 1/2 years prior to Parliament's Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ..................... Katia Caporiccio CaseLaw Editor .................. Adela Rodriguez Art Director .......................Alicia Adamson Account Co-ordinator ............... Catherine Giles Electronic Production Specialist ........Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 2/7/12 3:32 PM decision to institute the three-year man- datory minimum in 2008. As a result, he held that Nur didn't have stand- ing to challenge the three-year manda- tory minimum. He determined that a 40-month term was fit and sentenced him to time served. In the meantime, Code gave some situations hypothetical in which the three-year mandatory minimum would be unjust. One scenario reflected the case of R. v. Snobelen, in which a former cabinet minister was in possession of a gun purchased lawfully in the United States and packed up with other belong- ings when he moved. Another scenario presaged Smickle: a teenage boy posing with his father's service revolver. So where will the courts and Parliament go with these mandatory minimums? An interesting option, Molloy noted, is to retain judicial discretion in excep- tional circumstances. This is worthy of serious consideration. LT Rosalind Conway is a certified spe- cialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com Judicial discretion in exceptional circumstances a worthy idea

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