TORONTO — An Ontario judge has struck down mandatory minimum prison sentences for gun crimes.

Leroy Smickle, 30, of Toronto, was caught in "adolescent preening" with a pistol and a web camera when, coincidently, police burst into his cousin's apartment. Smickle was charged with possession of a loaded firearm.

Ontario Superior Court Judge Anne Molloy said Monday sending him to prison for three years would be unconstitutional.

"A reasonable person knowing the circumstances of this case, and the principles underlying both the Charter and the general sentencing provisions of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable," she wrote in her judgment.

The mandatory minimum sentence came into force in 2008 as part of the Conservative government's Tackling Violent Crime Act.

The Criminal Code provision violated Smickle's Charter rights, Molloy ruled — leading her to strike down the mandatory minimum provision.

"Section 12 of the Charter provides that, 'Everyone has the right not to be subjected to cruel and unusual punishment.' That right is enshrined in our Constitution, which is declared to be the 'supreme law of Canada' such that any law inconsistent with the Charter is 'to the extent of the inconsistency, of no force and effect,' " she wrote.

Molloy said she understands the potential danger of guns but decried one-size-fits-all punishment.

"Possession of a loaded restricted or prohibited firearm is a serious matter. But, typically, it is the circumstances in which the gun is possessed, and what is done with the gun, that give rise to the more serious concerns affecting community safety.

"It is also difficult to see how inflicting cruel and unusual punishment on an individual can be justified based on an overall legislative objective of general deterrence. . . . Some flexibility is required to deal with those exceptional circumstances where the imposition of a mandatory minimum sentence would run afoul of the Charter."

A spokeswoman for Justice Minister Rob Nicholson declined to comment on the ruling.

"As this decision is still eligible to be appealed, it would be inappropriate to comment further," said Julie Di Mambro in an email.

"Mandatory minimum sentences have a long history in Canada. Both Liberal and Conservative governments have imposed mandatory sentences. Today, the Criminal Code contains over 40 offences which carry a minimum sentence.

"Canadians are concerned about crime — especially crimes involving firearms. To respond to these concerns, our government passed mandatory minimum sentencing for certain serious gun crimes as part of the Tackling Violent Crime Act."

Simon Fraser criminology professor Neil Boyd said the ruling points to the basic flaw in mandatory minimum prison terms — the risk of an unjust, excessive sentence in borderline cases.

"Mandatory minimum terms remove judicial discretion and create significant risks of error in terms of imposing unjust sentences," he said.

Boyd said the sentence standards written into the Conservative government's new tough-on-crime bill also court the risk of being thrown out by frustrated judges.

"We've got a number of mandatory minimums in the omnibus crime bill. The same kinds of dangers and risks apply, particularly when many of the new mandatory minimums will focus on non-violent crimes such as cannabis cultivation," Boyd said.

Smickle's lawyer agreed.

"This represents a significant finding and strikes down an entire provision of the Criminal Code, so it remains to be seen what its long-term impact (will be)," lawyer Dirk Derstine told Postmedia News.

"Justice Malloy found that mandatory minimum sentencing regimes can sometimes produce cruel results for unusual cases and that finding may have some real resonance in other cases as they go forward to challenge other mandatory minimums."

Brendan Crawley, a spokesman for the Attorney General of Ontario, said the Crown is reviewing the decision before deciding what to do next.

With files from Sheila Dabu Nonato, Postmedia News

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