Alex Consiglio/Toronto Sun

The judicial revolt is spreading. On July 6, Ontario Court Justice Paul Bellefontaine became the province’s second judge this year to balk at the Conservative government’s mandatory-minimum sentences for gun crime, introduced in 2008. Jeffrey Mazin, the lawyer defending the accused, had a tough job. Over four occasions last year, his client, Christopher Lewis, sold a total of 53 g of crack cocaine to an undercover cop. Lewis, then 20 years old, was willing to own up to being a drug dealer. But the high-stakes gun charge thrown into the indictment, Mazin thought, was a little over the top.

It was a little over the top for a simple reason: there was no gun. Section 99 of the Criminal Code makes it an offence to transfer or to “offer to transfer” a firearm to another person unless one is an authorized gun vendor. Lewis admitted that he had been talking tough and had offered to sell the policeman a “four-fifths”—a .45-calibre handgun. But he never actually had access to a gun, and the detective’s testimony confirmed that whenever the date of the proposed sale came up, Lewis made some excuse for not producing the goods. This happened over and over. The accused simply wanted to prolong his lucrative commercial relationship with an increasingly formidable crack buyer.

The minimum sentence for a Section 99 offence under the 2008 Criminal Code amendments is three years—no exceptions. But despite Lewis’s admitted drug offences, Mazin was able to convince Justice Bellefontaine that it was ridiculous to give a man three years in jail for the admittedly illegal non-sale of a non-gun. The argument was relatively easy to make, thanks to February’s ruling by Ontario Superior Court Justice Anne Molloy in the unforgettable case of Leroy Smickle.

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