An Ontario judge was wrong to declare a mandatory minimum sentence unconstitutional and "cruel and unusual punishment," the province writes in starting an appeal of the ruling.
Superior Court Judge Anne Molloy struck down a three-year minimum sentence for a first offence of illegally possessing a loaded gun earlier this month, running directly contrary to the position Ottawa is taking with sentencing.
In the case before her, Molloy ruled that a three-year sentence would be "fundamentally unfair, outrageous, abhorrent and intolerable." Toronto man Leroy Smickle was taking pictures of himself for his Facebook account posing with a loaded gun when police burst into an apartment looking for someone else.
The Ontario government has filed a notice of appeal with the Court of Appeal for Ontario, asking it to overturn Molloy's ruling.
Molloy erred by declaring that the three-year mandatory minimum constitutes cruel and unusual punishment, and further the decision is "grossly disproportionate" to the circumstances of the case, is arbitrary and irrational and runs contrary to the charter, the Ontario government writes in several grounds of appeal.
The five-month conditional sentence she imposed in Smickle is "demonstrably unfit," the government writes.
Ontario is asking the Court of Appeal for Ontario to declare the impugned section constitutionally valid and give Smickle a harsher sentence.
Molloy's 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 omnibus Bill C-10 — currently facing scrutiny in the Senate — combines 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.
Ontario Premier Dalton McGuinty has said he supports mandatory minimums for all gun offences.