Leroy Smickle was taking pictures of himself looking “cool” for his Facebook profile when police stormed into the room. He was wearing boxer shorts, a tank top and sunglasses and wielded a loaded gun, reported the National Post on Feb. 13.

Smickle was charged with possession of a loaded firearm after being caught with a gun he didn’t own — police burst into his cousin’s apartment where he was staying in March 2009. The police entered with a search warrant in relation to Smickle’s cousin, who they believed was in possession of illegal firearms.

Ontario Superior Court judge Anne Molloy concluded that in Smickle’s case, enforcing mandatory gun laws would constitute “cruel and unusual punishment.” The flexibility Molloy showed was prudent, and punishing Smickle with the mandatory three-year sentence would have done more harm than good. The Conservative push for mandatory gun-crime sentences was approved by Parliament in 2008.

Instead of three years in prison, Smickle was sentenced to five months under house arrest, in addition to the seven months he spent in pre-trial custody, reported the Post.

Incarcerating someone for what was described as “adolescent preening” doesn’t send the tough-on-crime message promoted by mandatory sentences. Putting someone in jail for foolishness, when he poses no danger to himself or others, is counter-productive.

Our penal system should strive towards being rehabilitative rather than punitive, and the circumstances of Smickle’s crime indicate that he doesn’t need serious rehabilitation.

Possessing an unregistered firearm is a crime, but trying to look cool isn’t. Justice Molloy’s decision in this case is a good example of why sentencing should be done on a case-by-case basis. Mandatory minimum sentences fail to take into account mitigating circumstances.

Incarcerating Smickle wouldn’t prevent him from possessing a gun in the future — it didn’t even belong to him in the first place. To punish Smickle for a simple act of foolishness would be an embarrassment to our justice system. He had no criminal record and poses no threat to public safety.

Pushing Smickle out of work, away from his daughter and fiancée, could do more to propagate a criminal lifestyle than deter it.

Justice Molloy’s decision is a necessary undermining of mandatory minimum sentences, and giving Smickle three years for his crime would have been unfair.

If we don’t discriminate between a hardened criminal and a Facebook fool, then the justice system has failed.