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The Criminal Code’s mandatory minimum provision violates Smickle’s Charter rights she ruled and, as such, she struck it down.

“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.

Justice Molloy understood the potential danger of guns but decried one-size-fits-all punishment.

“As a trial judge in Toronto, I am painfully aware, and am reminded almost daily, of the deadly scourge represented by handguns in our community,” she wrote.

“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.”

Ottawa defended mandatory minimums and suggested an appeal is likely.

“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,” said Julie Di Mambro, spokeswoman for Rob Nicholson, the Minister of Justice.