Mandatory gun sentence struck down by Ontario judge

Sending a first-time offender to prison for three years for possessing a loaded gun is "cruel and unusual punishment," an Ontario judge ruled Monday in striking down the mandatory minimum sentence as unconstitutional.

The decision comes at a time when the federal Conservative government is pushing ahead with its controversial tough-on-crime agenda, including new mandatory minimums for drug and child sex crimes.

The judgment is "directly contrary" to what is happening in Ottawa, said Dirk Derstine, the defence lawyer on this case.

"The whole question of the constitutionality of all of this sort of crime agenda is going to be very much challenged in the courts and this is maybe one small step in making it less constitutionally sound," he said.

It's possible to increase the severity of sentences for such crimes while allowing judges discretion to impose lesser sentences when the circumstances justify it, Ontario Superior Court Judge Anne Molloy wrote.

Some flexibility is needed in the sentencing regime, she found.

"Every reasonable person would support reducing violent crime and protecting the public," Molloy wrote. "However, there is no tangible evidence that imposing a mandatory minimum does anything to actually accomplish that objective."

Leroy Smickle was "very foolish" to have been taking pictures of himself posing with a loaded illegal gun, but the circumstances do not warrant a three-year penitentiary sentence, Molloy ruled.

"In my opinion, a reasonable person knowing the circumstances of this case...would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable," she wrote.

Such a sentence would constitute "cruel and unusual punishment," and violates the charter, Molloy found. She declared the section of the Criminal Code setting out a minimum three years' punishment to be "immediately" of no force and effect.

The Department of Justice had no comment, saying it was a provincial prosecution. The Ontario Ministry of the Attorney General said it will review the decision to determine the province's next steps. A spokesman couldn't say whether the province will appeal.

Molloy found the Toronto man guilty of possession of a loaded firearm. He was sentenced to one year, to be served in the community.

"Mr. Smickle is guilty of colossally bad judgment," Molloy wrote. "However, apart from this one lapse in judgment, he is not a criminal."

Smickle was alone in his cousin's apartment at 2 a.m. on March 9, 2009, taking pictures of himself to post on his Facebook page. He was wearing boxer shorts, a white tank top and sunglasses and posing with a loaded handgun to look "cool," Molloy found.

Unbeknownst to him, members of the Toronto police Emergency Task Force were amassing outside to execute a search warrant in relation to Smickle's cousin, who they believed had illegal firearms.

Police smashed in the door of the apartment with a battering ram and Smickle was "literally caught red-handed," Molloy said.

The omnibus Bill C-10currently facing scrutiny in the Senatecombines nine different pieces of legislation, covering everything from drug and sex crimes to young offenders, criminal pardons and the issue of Canadians jailed abroad.

It creates new mandatory minimum sentences for drug crimes and child sex crimes, sharply reduces the use of house arrest, toughens the treatment of young offenders and those seeking criminal pardons, and gives the government new discretion on handling the cases of Canadians jailed outside the country.

Critics of the bill cite falling crime rates and say the cost of increased incarceration will be enormous, while rehabilitation and reintegration of convicts falls through the cracks.