CITATION: R. v. Smickle, 2013 ONCA 678
Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.
Her Majesty the Queen
Riun Shandler and Andreea Baiasu, for the appellant
Mark Halfyard, Jeff Hershberg and Breana Vandebeek, for the respondent
Moiz Rahman and Nancy Dennison, for the intervener, the Attorney General of Canada
Paul F. Monahan and Kimberly Potter, for the intervener, the Canadian Civil Liberties Association
Bruce F. Simpson, for the intervener, the John Howard Society of Canada
Virginia Nelder and Faisal Mirza, for the intervener, the African Canadian Legal Clinic
Scott Hutchison and Danielle Robitaille, for the intervener, the Advocates’ Society
Heard: February 19-22, 2013
On appeal from the sentence imposed by Justice Anne M. Molloy of the Superior Court of Justice in Toronto on February 13, 2012, with reasons reported at 2012 ONSC 602, 280 C.C.C. (3d) 365.
 The respondent was charged with possession of a loaded prohibited firearm contrary to s. 95 of the Criminal Code, R.S.C. 1985, c. C-46 and other related firearm offences. The Crown elected to proceed by indictment on the s. 95 charge and the respondent re-elected trial by judge alone.
 The respondent testified that he was not in possession of the gun, but the trial judge accepted the evidence of the Crown witnesses and convicted on the s. 95 charge. On sentencing, the trial judge held that the three-year mandatory minimum penalty, applicable because the Crown had proceeded by indictment, infringed the respondent’s rights under ss. 12 and 7 of the Canadian Charter of Rights and Freedoms and could not be justified under s. 1. She declared the mandatory minimum of no force or effect. The trial judge proceeded to impose a one-year conditional sentence which she then reduced to a five-month sentence to take into account pre-sentence incarceration and the respondent’s strict bail terms.
 The Crown appeals arguing that the three-year mandatory minimum does not infringe ss. 12 or 7 of the Charter. The Crown further contends that the trial judge made findings of fact on sentencing that were not available on the trial record. Crown counsel asks this court to hold that the mandatory minimum of three years is constitutional and to impose a sentence that reflects both the mandatory minimum and the facts of this case.
 For the reasons set out in the companion case of R. v. Nur, 2013 ONCA 677, I would hold that the mandatory minimum does breach s. 12 of the Charter. Again, for the reasons set out in Nur, I would hold that s. 95 does not infringe s. 7 of the Charter.
 I agree with the Crown’s submission that the trial judge made several findings of fact on sentencing that have no support in the record. In my view, the sentence imposed by the trial judge, even without a three-year mandatory minimum penalty, was totally inadequate. In keeping with the submissions of counsel during oral argument, I would give counsel an opportunity to make further submissions as to the appropriate sentence.
THE EVIDENCE AT TRIAL
 On March 9, 2009 just before 2:00 a.m., the police executed a search warrant at an apartment unit on the 15th floor in a high-rise apartment building in Toronto. The police were searching for firearms. The apartment unit was leased to a man named Rojohn Brown.
 The officers made a “dynamic” entry into the apartment unit. The door was smashed using a battering ram and several members of the Emergency Task Force rapidly entered the apartment in a single file. The second officer to enter the apartment threw a distraction device (also known as a flash-bang) into the living room area. That device distracts and disorients anyone who may be present by making a very loud noise and causing a very bright flash of light.
 The first officer to enter the apartment testified that as he was entering the apartment, and before the distraction device went off, he saw a man, later identified as the respondent, who appeared to be getting up from the couch as the first officer entered the apartment. This man’s back was to the door and he appeared to be turning toward the door. He had a handgun in his left hand and his laptop computer was “falling off his lap or tumbling out of his hand”.
 At the same time as the first officer saw the respondent rising from the couch, the second officer threw the distraction device into the living room, resulting in a loud bang and a very bright light. The respondent dropped the gun and fell to the ground as ordered by the police. He was subdued without any resistance.
 A Colt 25-calibre semi-automatic handgun, fully loaded with the hammer cocked to fire, was found beside the couch. The weapon is a prohibited firearm within the meaning of s. 95. Fortunately, the weapon did not discharge when the respondent dropped it.
 The respondent was placed under arrest and removed from the apartment unit. The police found other firearms in the bedroom. There was no evidence that the respondent lived in the apartment or that he was aware of the other firearms that were discovered in the search.
 The respondent testified in his own defence. The respondent testified that he went to visit his cousin, Rojohn Brown, on the evening of March 8th. He was with his girlfriend. His girlfriend and Mr. Brown decided to go out, but the respondent declined to join them as he had to work the next day.
 The respondent indicated that he was “chilling” on the couch, using his laptop to take pictures of himself, when he heard a bang on the door. He heard two more bangs, the door flew open, and the police entered. According to the respondent, he was already in the process of getting down to the floor when the distraction device discharged.
 The respondent denied that he was in possession of a handgun when the police entered the apartment. He said, “[n]ever had a gun. Never seen no gun.”
 By the end of the evidence and submissions, there was one issue: had the Crown proved the respondent was in possession of the handgun? The trial judge, after reviewing the respondent’s testimony, concluded that it was incredible and did not leave her with any doubt on the question of possession. The trial judge accepted as accurate the evidence of the police officers, particularly the first officer who entered the room and saw the respondent holding the handgun. The trial judge noted that this officer’s evidence was credible and corroborated by the second officer who entered the apartment. The second officer also saw a gun in the respondent’s hand.
FINDINGS ON SENTENCING
(i) The Offender
 The pre-sentence report painted a positive picture of the respondent. He was 27 years old at the time of sentencing and did not have a criminal record. The respondent was gainfully employed and was working towards his high school diploma. He was in a relationship and had two children.
(ii) The Offence
 The trial judge made several findings of fact that mitigated the seriousness of the offence committed by the respondent. The Crown submits that many of those findings were unsupported by the evidence and were assumptions made by the trial judge in the absence of evidence. Before I examine this submission, I will briefly summarize the principles governing fact-finding on sentencing. They are not in dispute.
 If the Crown relies on a fact as aggravating on sentencing, and the fact is not admitted, the Crown must prove that fact beyond a reasonable doubt. However, the failure to prove an alleged aggravating fact beyond a reasonable doubt does not permit the trial judge to assume a version of facts most favourable to an accused. If the defence relies on mitigating facts and those facts are not conceded by the Crown, the accused must establish those facts on the balance of probabilities: Criminal Code, s. 724(3); R. v. Ferguson, 2008 SCC 6,  1 S.C.R. 96, at para. 18; and R. v. Holt (1983), 4 C.C.C. (3d) 32, at pp. 51-52 (Ont. C.A.), leave to appeal to S.C.C. refused: S.C.C.A. No. 474.
 The Crown alleged two specific aggravating factors on sentencing. First, the Crown argued that the gun belonged to the respondent, who had brought it to the apartment. Second, the Crown submitted that the respondent had cocked the gun in response to the arrival of the police at the apartment door. The trial judge, at paras. 16-19, found that neither fact was proved beyond a reasonable doubt. She was entitled to come to those conclusions.
 The trial judge also made two findings of fact that, in my view, are unassailable. She concluded that the respondent never intended to use the gun against the police, and she concluded that, when the police arrived, the respondent was taking photographs of himself with his laptop and using the gun, as well as sunglasses, as props to make himself appear “cool”.
 The trial judge went on to make a number of other findings. She found that the respondent:
· “found the gun somewhere in the apartment” (para. 17);
· had “brief” possession of the gun (para. 60);
· did not possess the gun in the presence of anybody else (para. 60);
· had no criminal intent in respect of the gun (para. 60);
· had no reason to believe his conduct put anybody in harm’s way (para. 60); and
· possessed the gun solely for the purpose of taking his photograph with his laptop and appearing “cool” (paras. 20 and 60).
 The Crown’s evidence started with the arrival of the police at the apartment around 2:00 a.m. The appellant was alone when the police arrived. He testified that he had been in the apartment for about six hours and that his cousin and his girlfriend were with him for part of that time. His evidence that he was never in possession of a gun and never saw a gun was rejected by the trial judge and could not assist the trial judge in her fact-finding on sentencing.
 There was no evidence to support the findings outlined in para. 21. Specifically, there was no evidence about how the respondent came into possession of the handgun in the apartment. To conclude that he “found the gun” is pure speculation. Nor was there any evidence as to how long the respondent was in possession of the handgun. He may have been in possession of it for hours. There is also no evidence that he was alone throughout the time he was in possession of the gun. On his evidence, he was in the apartment with two other people for some period of time. Finally, there is no evidence as to the respondent’s intent in respect of the gun and no evidence that his possession was solely for the purpose of taking his photograph with his laptop and appearing “cool”.
 To find as the trial judge did, that the respondent just happened to come across the handgun while he was alone in the apartment, very shortly before the police arrived, and that he did nothing with the gun and had no intention of doing anything with the gun other than what he was doing at the very moment the police arrived, is to assume the most favourable version of facts for the respondent imaginable. The trial judge’s approach misses the distinction stressed in Holt between the Crown’s failure to prove an aggravating factor and positive findings of fact that may mitigate the penalty. Thus, while it could not be said that anyone else was present while the respondent was in the possession of the gun, it equally could not be said that he was alone at all times when he was in possession of the gun. Similarly, while the Crown did not prove the intention to commit any other crime while in possession of the gun, it could not be inferred from that failure of proof that there was no intent to commit further criminal activity. One is simply left not knowing one way or the other.
 The respondent, the person who could logically have supplied evidence that may have permitted the findings made by the trial judge, chose instead to perjure himself and deny possession of the weapon. It was not for the trial judge to fill, through speculation, the factual void created by the respondent’s perjury.
 I must also reject the trial judge’s characterization of the respondent’s conduct as “adolescent preening”. First of all, a 27 year old adult is hardly an adolescent. More importantly, the trial judge’s characterization minimizes both the respondent’s moral culpability and the danger his conduct posed to others.
 The respondent was in possession of a loaded cocked handgun. On the trial judge’s findings, he was posing with the gun as he photographed himself appearing “cool”. In other words, he was playing with a fully loaded cocked handgun.
 The respondent was not off by himself in some isolated forest playing with a fully loaded cocked handgun. He was in someone else’s apartment located in a high-rise apartment building. It is fair to assume there were other people in the adjoining apartments who could well have been at risk had the gun accidentally discharged. Furthermore, as subsequent events clearly demonstrated, the respondent had no idea of, and no control over, what might happen as he was playing with the fully loaded cocked handgun. The police who were engaged in an important and dangerous public duty were clearly put at risk by the respondent’s conduct. Surely, it is a matter of good fortune that someone was not hurt either by the accidental discharge of the respondent’s firearm or by the police response to the apparent threat posed by the respondent.
 On any realistic view of the respondent’s conduct, he demonstrated a wanton or reckless disregard for the lives and safety of others. Fortunately, his conduct did not cause any actual harm. His criminally negligent behaviour is, however, morally blameworthy in the same way as was the conduct of the accused in R. v. Morrisey, 2000 SCR 39,  2 S.C.R. 90, who accidentally shot and killed his friend while fooling around with a loaded rifle in his hand. No one would ever characterize what the accused in Morrisey did as “drunken tomfoolery”. Nor, in my view, should anyone characterize the respondent’s conduct as “adolescent preening”.
 The respondent’s conduct falls squarely at the “true crime” end of the s. 95 spectrum I described in Nur. He had a loaded cocked gun in his hand. He was engaged in conduct that posed a serious and immediate risk to others. He had no authority to possess the gun at any place or in any circumstances. Even having regard to the personal circumstances of the offender, a sentence approaching or at the maximum reformatory sentence (two years less a day) would have been appropriate absent a mandatory minimum sentence.
THE SECTION 12 CLAIM
 I will not repeat the analysis from Nur, but will instead set out my conclusions based on the application of that analysis to this record.
 The three-year minimum sentence is not cruel and unusual as applied to the respondent. Absent the mandatory minimum, I think the respondent could have received a sentence at or near two years less a day. A sentence of three years is excessive and perhaps sufficiently excessive to warrant appellate intervention. It does not, however, reach the level of gross disproportionality.
 For the reasons set out in Nur, the mandatory three-year minimum sentence is cruel and unusual punishment when applied to a reasonable hypothetical. Consequently, the mandatory minimum infringes s. 12 of the Charter. The s. 12 violation cannot be saved by s. 1, and pursuant to s. 52 of the Constitution Act, 1982, it is of no force or effect.
THE SECTION 7 CLAIM
 For the reasons set out in Nur, I do not accept that the two-year gap between the maximum penalty available if the Crown proceeds summarily (one year) and the minimum penalty available if the Crown proceeds by indictment (three years) renders s. 95 arbitrary and contrary to the principles of fundamental justice.
 I would hold that the mandatory minimum is of no force or effect. I would also hold that on a proper reading of the trial record, the sentence imposed by the trial judge was manifestly inadequate even absent the mandatory minimum. Having determined that the sentence imposed at trial was manifestly inadequate, I would normally proceed to impose an appropriate sentence: Criminal Code, s. 687. However, through no fault of the respondent, over 20 months have passed since he was sentenced. The respondent has placed fresh evidence before this court. As suggested in oral argument, I think it is appropriate to give counsel the opportunity to make submissions as to the appropriate sentence at this point in time. Counsel should arrange a conference call with me to address the form and timing of those submissions.
Released: “DD” NOV 12 2013”
“I agree S.T. Goudge J.A.”
“I agree E.A. Cronk J.A.”
“I agree R.A. Blair J.A.”
“I agree M. Tulloch J.A.”
 Immediately before the respondent testified, the trial judge allowed his counsel to be removed from the record. The respondent’s evidence was very brief.
 The mitigating features of the respondent’s personal circumstances are noted above, at para. 16. I would observe, however, the absence of one key mitigating factor. There is no evidence of any remorse or any sign of any realization by the respondent of the dangerousness of his conduct. In the absence of that realization, the need for specific deterrence is arguably considerably higher.