In 2011, Hussein Nur received a mandatory minimum three-year sentence after pleading guilty to carrying a loaded gun outside a northwest Toronto community centre.

Then there’s Leroy Smickle, also convicted of possessing an illegal firearm after his ill-timed posing for a webcam holding his cousin’s gun just as Toronto police officers crashed through an apartment door.

But this time his sentencing judge decided a mandatory three-year sentence would be “grossly disproportionate” to what Smickle deserved so she struck down the law as unconstitutional.

“The legislation is requiring me to impose a sentence that constitutes cruel and unusual punishment,” breaching the Charter of Rights and Freedoms, Ontario Superior Court Justice Anne Molloy wrote.

This week, both gun cases, along with four others raising similar issues, are before the Ontario Court of Appeal. A rare five-judge panel will hear legal arguments beginning Tuesday.

All deal with the constitutionality of the federal government’s tough-on-crime legislation that five years ago introduced stiffer penalties for gun crimes under the Criminal Code. Prior to 2008, the mandatory minimum sentence for firearm possession was one year.

Bundling similar cases, with varying facts and legal arguments, allows Ontario’s highest court to fashion a clear decision that can be broadly understood by counsel and judges, explained John Kromkamp, senior legal officer with the Court of Appeal for Ontario.

The Attorney General for Ontario, which appealed Molloy’s ruling, is asking the court to declare the three-year minimum punishment of imprisonment on election by indictment constitutionally valid.

“A minimum three-year sentence . . . cannot be reasonably characterized as going beyond all rational bounds of punishment in the eyes of reasonable and right-thinking Canadians,” the ministry’s factum states.

But defence lawyers will argue the legislation is unfair because it created a “hybrid scheme” of sentencing.

When the Crown proceeds summarily, in less serious cases, the maximum sentence is one year incarceration and there is no minimum sentence, defence lawyers Mark Halfyard and Jeff Hershberg, who represent Smickle, wrote in their factum.

When the Crown proceeds by indictment, the minimum sentence is three years.

“There is a stark divide in the severity of sentences between one and three years,” the lawyers wrote.

Had the Crown proceeded against Smickle by summary conviction, rather than indictment, the maximum sentence upon conviction would have been one year.

Leaving the discretion in the hands of the Crown, not the judge, is also problematic “and allows for subtle or even unconscious bias to influence that decision,” the lawyers stated.

They gave two examples of gun cases involving a former Ontario member of Parliament and the son of a Toronto police officer. In the former case, the Crown proceeded summarily, and in the latter, the Crown proceeded on a lesser charge that did not involve the three-year minimum.

“The respondent is not alleging that the exercise of discretion resulted from demonstrable bias; however, both of these cases raise the concern that such factors could have subtly crept into the Crown’s decision-making process,” they wrote.

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By contrast in the Smickle case, the Crown elected to proceed by indictment, they wrote, adding he “is a black male, found in an apartment of a person known to be involved with firearms.”

While an “undercurrent” of the defence argument will be that there’s no evidence that stiffer penalties reduce violent crime, that is not an actual basis to strike down the legislation, Halfyard wrote in email.

The Canadian Civil Liberties Association, John Howard Society, the Attorney General of Canada, The Advocates’ Society and African Canadian Legal Clinic are all intervenors in this week’s proceedings.